News stories detailing the rise of gang-related violence in Central America have captured the attention of audiences across the world. These reports are often accompanied by gruesome photos of dismembered bodies and tallies of missing people. Most of this gang violence is based in Guatemala, El Salvador, and Honduras, which are often referred to as the “Northern Triangle.” According to the U.S. Department of State, these three countries have the high murder rate of 103.1 murders per 100,000 citizens, compared to the U.S. rate of 4.5 murders per 100,000 citizens. It is unsurprising that almost 9 percent of the citizens living in a Northern Triangle country have migrated.
One major concern related to this gang violence is the safety of individuals who have been targeted by gangs or who are former gang members who wish to escape retribution. Many of these individuals try to claim asylum in the U.S. in an attempt to flee this gang violence. However, most applications based on gang violence have historically been denied.
Foreign nationals can apply for asylum in the U.S. if they fear they will suffer persecution based upon their race, religion, nationality, political opinion, or membership in a particular social group. If the U.S. government finds that an individual is eligible for asylum, he or she can remain in the U.S., along with his or her spouse and any children under the age of 21. The individual can then apply for a permanent resident card, or “green card”, one year after being granted asylum.
So far, with only a handful of exceptions, it has been nearly impossible for applicants fleeing gang violence to meet the asylum requirements in the U.S. These individuals do not fall under the categories of race, religion, nationality, or political opinion, leaving only the category of “membership in a particular social group.” Even though this is a seemingly ambiguous classification, U.S. courts have generally held that individuals fearing gang violence or recruitment are not considered members of a particular social group. Therefore, they do not meet eligibility requirements for asylum under any of the five categories.
Additionally, an asylum applicant must establish three facts regarding the persecution that they face. First, an applicant for asylum must show that they face extreme persecution, not merely a general fear that violence may occur. Second, an applicant must show that the applicant’s government was complicit in the persecution or is entirely unable to protect the applicant from the persecution. It is not enough to allege that local authorities are paid off by gang members to turn a blind eye to the violence or that nationwide programs that attempt to address the violence are largely unsuccessful. Third, an applicant must explain why they cannot move to another area of their country to escape the persecution.
Humanitarian organizations and advocacy groups urge a more humanitarian approach to the asylum process, including an expansion Temporary Protected Status (TPS) programs, which should be broadened to include individuals (and especially children) facing gang violence in El Salvador, Guatemala, and Honduras. Currently, TPS is largely limited to victims of environmental disasters, such as hurricanes. Those advocating to expand TPS argue that individuals facing gang violence could eventually return to their home country if the situation improves there. Others just urge those fearing gang violence to continue applying for asylum in the hopes that the courts decide to set new precedent recognizing victims of gang-related violence as members of a “particular social group.” Although an asylum office or an immigration court may grant some applications on a case-by-case basis, that area remains very far from being settled law.
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