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Gang Encounter Differs from Gang Persecution Under CAT

By Robyn Hagan Cain on August 31, 2012 | Last updated on March 21, 2019

Much as boys will be boys, gangs will be gangs.

The First Circuit Court of Appeals recently denied a former El Salvadoran police officer's asylum appeal after finding that the petitioner failed to prove that gangs in his home country persecuted him on account of a protected ground under the Convention Against Torture (CAT).

The case serves as a reminder that, "greed -- not social group membership -- is the apparent trigger" for much gang violence.

Edwin Carranza-Vargas is a native and citizen of El Salvador who unlawfully entered the United States in 2006. The following year, the Department of Homeland Security began removal proceedings by filing a Notice to Appear with the immigration court, charging Carranza-Vargas as an alien present in the U.S. without having been admitted or paroled.

Carranza-Vargas admitted the allegations, conceded removability, and applied for relief in the form of asylum, withholding of removal, and protection under CAT.

Carranza-Vargas' CAT claim was based on the idea that, as a former police officer, gangs would want to harm him if he returned to El Salvador because "they almost killed me once and if I come from this country carrying money, they'll try again." (He supported this claim with prior accounts of how the gangs beat and robbed him.)

The Immigration Judge (IJ) found that Carranza-Vargas's testimony was credible, but that Carranza-Vargas did not establish that he was eligible for asylum because he did not suffer past persecution on account of a protected ground.

Because Carranza-Vargas did not establish eligibility for asylum, the IJ found that he also failed to meet the higher standard required for withholding of removal. Finally, the IJ found that the CAT claim failed because Carranza-Vargas did not establish that he would be subjected to torture at the instigation or with the consent or acquiescence of a public official or someone acting in an official capacity.

The First Circuit Court of Appeals affirmed that decision in an unpublished opinion.

To establish eligibility for asylum, an alien must demonstrate that he has been subjected to past persecution or has a well-founded fear of future persecution based on race, religion, national origin, political opinion, or membership in a particular social group. For applications for asylum submitted after May 11, 2005, (like Carranza-Vargas's), one of the statutorily protected grounds must be "at least one central reason" for the persecution.

A showing of past persecution with sufficient nexus to a statutorily protected ground creates a rebuttable presumption of future persecution.

Here, the First Circuit agreed with the agency's finding that Carranza-Vargas was not persecuted on account of membership in the proposed social group of former police officers or soldiers, but that the attacks were economically motivated.

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