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July 31, 2008
BIA: Membership in a criminal gang cannot constitute membership in a particular social group
The BIA today issued an Interim Decision in Matter of E-A-G-, Interim Decision #3618, 24 I&N Dec. 591 (BIA 2008). The Board ruled that:
(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.
(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect perception by others that he is such a gang member.
Here is the decision. Download gang.pdf
KJ
July 31, 2008 | Permalink
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Comments
It's a strange and not very careful decision. On the "perception" issue for particular social group the reasoning seems wrong to me. The BIA here claims that the social group in question must be one that _society at large_ must perceive them as a member of the group in question but that seems wrong to me. Shouldn't the relevant matter be whether the group doing the persecuting perceives the applicant as a member of the group? There's no real justification for this claim given and it seems like the wrong one to me, given what we want refugee law to do. I'm also fairly sure they mis-characterize the holding of Castellano-Chacon, which seems to me to have a much more narrow holding than the BIA here suggests. (I'm not 100% confident on this, though, as I've not closely re-read that case in a while.)
Anyway, not a very well reasoned case, to my mind, even if the claim wasn't meritorious. (It could have been rejected just on the 'well-founded fear' aspect, I'd guess.)
Posted by: Matt Lister | Jul 31, 2008 9:16:07 AM
What lawyer in his or her right mind would have argued that a gang member should receive asylum in the first place?
The Board of Immigration Appeals decision is entitled to deference under Chevron and Brand X.
I dare the attorneys to petition for review, because they will definitely at the circuit level.
Posted by: Thomas Lillich | Jul 31, 2008 1:19:21 PM
Thomas, if you'd bothered to read the case you'd know that the applicant in this case was not a gang member and in fact based his claim on his opposition to gangs in Honduras. I'm not convinced he should have won. (I'm willing to believe he didn't establish the "well-founded fear" leg, but it's hard to have an informed opinion without having seen the IJ decision and the evidence that was before the IJ.) But your remarks are, at the least, not relevant to the case since the applicant here, and those who will now have a much harder time applying for asylum, was not a gang member and opposed gang activity. Please, before you comment on a case, read it.
(Beyond that, it's not at all clear to me that this interpretation of the asylum statute ought to be seen as good enough to qualify for Chevron deference, though I'd not bet money on that outcome.)
Posted by: Matt Lister | Jul 31, 2008 6:29:59 PM
