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How a US Court Ruling Impacts Gang Member Asylum Claims

EL SALVADOR / 23 FEB 2021 BY PARKER ASMANN EN

A US federal appeals court has delayed the deportation of a former MS13 member to El Salvador, ruling that his status as a former gang member puts him in a distinct social group -- a category eligible for asylum. The ruling raises questions about what precedent it may set for similar cases in the future.

The judgment came in the case of Juan Carlos Amaya, who is seeking asylum in the United States citing fears of death or torture if he is returned to El Salvador. Amaya is currently in removal proceedings after being arrested by US Immigration and Customs Enforcement (ICE) agents in 2017.

As part of his appeal for asylum, Amaya told an immigration judge that he was forced to join the MS13 in El Salvador in 2003. He left the gang a year later but faced constant death threats from active members. In 2009, he said he left his daughter behind and fled for the United States, according to court documents.

Amaya spent three years in the United States before being removed and sent back to El Salvador in 2012 following an assault conviction. It took the gang but a few days to identify him. When a childhood friend told him they were planning to kill him, Amaya again fled to the United States, court documents say.

In 2017, ICE agents arrested Amaya in Maryland and reinstated his removal order. Amaya told the agents he feared being tortured or killed back in El Salvador, and an asylum officer gave him temporary permission to remain in the United States.

The case then went before an immigration judge. To get relief from removal, Amaya had to prove he belonged to a particular social group under threat. To date, asylum law has defined such groups to include members of political parties or people of a targeted sexual orientation. Amaya claimed his social group was the MS13.

SEE ALSO: El Salvador News and Profile

Crucially, he testified that his former gang affiliation put him in danger from both the gang and El Salvador's government. He said MS13 members had shot him, shoved a gun in his mouth and threatened to kill him. He also testified to being threatened by police officers, who arrested him for a triple homicide. The charges against him were dropped when a confidential witness said that the police had ordered him to accuse Amaya, according to court documents.

Still, the judge denied Amaya's asylum claim, ruling that he was not a credible witness and that there was insufficient evidence to support his claims. Also, the judge said Amaya's claim that Salvadoran MS13 gang members were a distinct social group was “too amorphous and thus lacked particularity,” and that it “can be difficult for society to determine who belongs to the group,” according to court documents.

The judge ordered his deportation, but Amaya appealed before the Board of Immigration Appeals (BIA). The board supported the immigration judge’s analysis that Amaya’s particular social group was too vaguely defined. But the BIA did not address whether his group was “socially distinct," and Amaya petitioned the US Court of Appeals for the 4th Circuit to review his case.

On January 25, the 4th Circuit granted Amaya’s petition to halt his removal. The judges ruled the BIA’s determination that the social group he claimed, former Salvadoran MS13 members, lacks particularity was “unreasonable.”

The case was sent back to the BIA for further review, and the question stood unanswered: Is the MS13 a type of "social group" that qualifies someone for potential asylum?

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While immigration hardliners may decry the decision as opening the United States to a wave of dubious asylum claims, immigration lawyers and advocates say the implications are more complex.

Gang members from El Salvador flee their home country frequently, and they often go to the United States, which can represent one of their few ways to escape the MS13.

Since asylum applicants must show they are part of a distinct social group, Amaya’s case potentially opens the door to former Salvadoran gang members' asylum claims to be granted based on their former membership -- as Amaya's case may be -- to that particular group. But the hurdle is still high.

"Each attorney and respondent has to build this factual record and meet the particular social group three-pronged test in every individual case,” said Michelle Méndez, director of the Defending Vulnerable Populations Program at the Catholic Legal Immigration Network, Inc. (CLINIC). The three parts include whether the group “shares immutable and/or fundamental traits, is ‘socially distinct’ and is ‘particular.’”

Several immigration attorneys and experts consulted by InSight Crime said each asylum claim is different and will ultimately be judged on a case-by-case basis, since asylum is a discretionary form of relief.

The favorable decision in Amaya’s case does not mean that immigration judges will now easily grant similar rulings in future cases involving former gang members.

SEE ALSO: US Deportations to El Salvador Sending Migrants to Their Deaths: Report

“Decisions like this are great but what Amaya’s case shows is the importance of an impartial judicator in immigration court and what happens when you have an independent eye looking critically at a case,” said Camille Mackler, executive director of Immigrant ARC (Immigrant Advocates Response Collaborative).

Amaya testified that he was pushed into joining the MS13 in El Salvador in 2003 and left the gang just one year later. Yet this small part of his life is still being scrutinized to decide his future almost 15 years on, Mackler said.

“Imagine if your whole life was anchored around one of your worst moments? Joining MS13 is different than just getting a bad haircut, but we’ve all made mistakes,” she said.

While Amaya received a favorable ruling from the 4th Circuit, his case has yet to be concluded. The BIA is reviewing the case, and it could still uphold the judge's removal order, forcing Amaya's attorney to appeal and start the process all over again.

Still, immigration lawyers told InSight Crime the federal court's ruling in the case does potentially set an important benchmark for future cases.

“This is the first time the 4th Circuit said that former Salvadoran gang members are a viable particular social group, which is important for other cases,” said Méndez.

“This decision should make it easier for others with similar particular social groups to prevail before the immigration judge and not go through the appeals process," she added.

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