Aversion to Gang Recruitment Doesn't Support Asylum

Oscar Alexander Granados Gaitan, a native and citizen of El Salvador, entered the United States to escape recruitment into a gang in his home country. Five years later, the U.S. initiated removal proceedings against him. Gaitan sought asylum.

This week, the Eighth Circuit Court of Appeals ruled that Gaitan didn't qualify as a member of an articulated social group entitled to asylum, and rejected his removal appeal.

In April 2002, Gaitan entered the United States without inspection in order to escape recruitment into the notorious gang "Mara Salvatrucha" or "MS-13." Approximately two years earlier, when Gaitan was 12, he was approached by MS-13 members who attempted to recruit Gaitan into their gang.

Gaitan refused this initial invitation as well as subsequent bids from gang members. He was never physically harmed during his interactions with MS-13, though the gang members threatened to harm Gaitan and his family if he did not join.

The Department of Homeland Security charged Gaitan with being removable for being present in the United States without being admitted or paroled. Gaitan admitted the factual allegations and conceded the charge of removability, but requested asylum, withholding of removal, and relief under the Convention Against Torture.

Gaitan claimed that he was a member of a "particular social group" composed of young males that have been previously recruited by MS-13 and are opposed to the nature of gangs. To support this claim, Gaitan testified about his experience in El Salvador and gang members' efforts to recruit him. Gaitan also submitted written documentation regarding the ongoing struggle in El Salvador for school-aged males to resist coerced recruitment by gangs.

The Immigration Judge found that Gaitan failed to show eligibility for asylum on the basis of membership in a particular social group, and the Board of Immigration Appeals affirmed.

The Eighth Circuit Court of Appeals, relying on recent circuit precedent in Constanza v. Holder and Ortiz-Puentes v. Holder, denied Gaitan's appeal, finding that Gaitan did not qualify as a member of a particular social group.

While gang violence in Central America is a heart-breaking problem, Eighth Circuit immigration lawyers must find an alternative asylum argument for petitioners seeking withholding from removal; the Eighth Circuit does not recognize persons opposed to recruitment into gang membership as a particular social group.

Related Resources:

• Gaitan v. Holder (Eighth Circuit Court of Appeals)
• Court Grants Mother Seeking Asylum to Stop FGM a BIA Review (FindLaw's Eleventh Circuit Blog)
• February's First Four: SCOTUS Decides Kawashima, More (FindLaw's Supreme Court Blog)