Friday, April 17, 2009
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Man Threatened for Refusing to Join Gang Held Not Eligible for Asylum
By a MetNews Staff Writer
A man who claims his life was threatened because he refused to join the Mara Salvatrucha gang in his native Honduras is not eligible for asylum because such refusal did not make him a member of a cognizable social group, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The judges upheld a decision by the Board of Immigration Appeals denying Erik Ramos-Lopez’s petition for asylum and withholding of removal.
Ramos testified that he was born and raised in Puerto Cortes, Honduras, and that he ran into trouble with the gang, known as MS-13, in 2004 at the age of 16. A member approached him and a friend, waved a gun, and told them “it was time to join” the gang and commit a robbery, Ramos said.
When they declined, they were warned that if they “wanted to live, he would be waiting.” Later that year, another member showed them a gun and said they would either join or be killed.
In 2005, Ramos fled to Mexico, but was detained and sent back to his native country. He said he was again threatened that he or a member of his family would be killed if he did not join the gang, and that he fled Honduras in May of that year.
He said he did not seek help from the police in Honduras before fleeing the country.
He entered the United States on May 16, 2005, but was picked up by the Boarder Patrol the next day. He conceded removability and asked for asylum, withholding of removal, and relief under the Convention Against Torture.
The immigration judge found his testimony credible, but said that he was not eligible for asylum or withholding because his fear of persecution did not stem from his membership in a protected group or because he holds a protected opinion. The IJ also ruled that he was not eligible for CAT relief because he did not show that he faced a clear probability of torture in Honduras.
The BIA summarily affirmed, and Ramos sought review only as to the denial of asylum and withholding.
Senior Judge A. Wallace Tashima, writing for the Ninth Circuit, noted that under a recent en banc decision of the court, the BIA’s formal interpretation of the Immigration and Nationality Act is entitled to deference unless arbitrary and capricious.
The board, he pointed out, had previously held that men who refused to join MS-13 in El Salvador did not make up a particular social group for asylum purposes because there was “no unifying relationship or characteristic to narrow this diverse and disconnected group” and because the group lacked the requisite social visibility. The BIA has also held, and the Ninth Circuit has agreed, that “young, urban, working class males” and “business owners...who rejected demands by narco-traffickers to participate in illegal activity” were not particular social groups, Tashima wrote.
Tashima went on to note that the BIA has previously held that resistance to a gang’s recruitment effort does not, in and of itself, constitute political opinion, and that an applicant seeking asylum on that basis must show that the applicant and the gang had an actual difference of political opinion.
Judges M. Margaret McKeown and William A. Fletcher joined Tashima in his opinion.
The case is Ramos-Lopez v. Holder, 06-72402.
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