Tuesday, September 9, 2008
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Anti-Gang Beliefs Not Political Opinion, Ninth Circuit Rules
By SHERRI M. OKAMOTO, Staff Writer
An asylum-seeker’s general aversion to criminal street gangs in El Salvador did not constitute a protected political opinion for purposes of asylum and withholding of removal, the Ninth U.S. Circuit Court of Appeals held yesterday.
The three judge panel rejected Jose Santos-Lemus’ claim that as a Salvadoran male resisting rampant gang violence by the Mara Salvatrucha—known also as MS-13—he faced persecution if returned to his native country and denied his petition for relief.
The Mara Salvatrucha gang originated in Los Angeles, set up in 1980’s by Salvadoran immigrants in the city’s Pico-Union neighborhood, and spread through Central America as gang members were deported by the United States. The gang’s activities include drug smuggling and sales, black market gun sales, human trafficking, theft, assaults on law enforcement officials, and contract killing.
Family Threatened
Santos-Lemus claimed Mara Salvatrucha members had beaten and robbed one of his brothers at gunpoint, and that gang members later searched for his brother at school for “revenge” because they had been unable to take his brother’s clothing and shoes during the robbery. After his brother later fled the country, Santos-Lemus said the gang threatened the rest of his family and killed his eldest brother.
Gang members later attacked Santos-Lemus’ youngest brother, who also fled the country, and then attacked Santos-Lemus, he said. He testified that he had received an anonymous threat stating that he would be killed like his brother, and fearing for his life, illegally entered the United States.
Although Santos-Lemus said his two brothers are both in the United States, his mother, two sisters and another brother remain in El Salvador, and admitted that they have not had any problems with the gang.
At trial, he conceded removability, but sought asylum, withholding of removal, and protection under the Convention Against Torture.
An imigration juge found Santos-Lemus credible, but denied relief and ordered him removed to El Salvador. The Board of Immigration Appeals affirmed.
Eligibility for asylum requires showing a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, Senior Judge J. Clifford Wallace wrote in his opinion for the appellate court.
Although the immigration judge stated several reasons why Santos-Lemus had failed to establish eligibility for asylum, Wallace explained that appellate court review was confined to the issues considered and rejected by the board.
‘Social Group’
Assuming, as the board did, that Santos-Lemus’ family could constitute a “particular social group,” Wallace reasoned that the continuing safety of Santos-Lemus’ family in El Salvador was substantial evidence that Santos-Lemus did not have a well-founded fear of future persecution based on family membership.
Wallace also rejected Santos-Lemus’ alternate proposed social group of “young [men] in El Salvador resisting gang violence” as too loosely defined to meet the statutory requirement for particularity.
He reasoned the proposed social group lacked social visibility—a shared characteristic that could be generally recognized by others—and that nothing about Santos-Lemus’ actions would distinguish him from the rest of the population or cause others to recognize him as a member of the proposed group.
Civil Strife
Citing Ochave v. INS (2001) 254 F.3d 859, Wallace explained that asylum generally is not available to victims of civil strife who are not members of a protected social group unless they are singled out on the basis of their political opinion.
Because Santos-Lemus had not provided any evidence that he was politically or ideologically opposed to the ideals espoused by Mara Salvatrucha or gangs in general, or that the gang held any sort of belief system they perceived Santos-Lemus to oppose, Wallace concluded the gang did not persecute Santos-Lemus on account of his political opinion.
“The available evidence suggests instead that Santos-Lemus was victimized for economic and personal reasons,” Wallace wrote, concluding the gang’s harassment of Santos-Lemus and his family was therefore merely a part of the general criminality and civil unrest inflicted by the gang.
Judge Susan P. Graber and Senior U.S. District Judge Robert J. Timlin of the Central District of California, sitting by designation, joined Wallace in his opinion.
The case is Santos-Lemus v. Mukasey, 07-70604.
Copyright 2008, Metropolitan News Company