Case Highlights Importance of Judicial Review in Upholding U.S. Human Rights Obligations
The U.S. Circuit Court of Appeals of the Seventh Circuit has ruled that a former member of the Mara Salvatrucha gang in El Salvador, who applied for asylum in the United States because he fears he will be persecuted for leaving the gang if he returns to his native country, is a member of a “particular social group,” a key requirement to obtain protection in the United States.
This decision upholds U.S. commitments under international law to protect people who are targeted because of their membership in a particular social group, and who would face persecution, torture, or even death if forced to return to their homelands.
“A lot of young men in Central America join gangs out of self-preservation when they are young, only to regret those decisions when they are older,” said Claudia Valenzuela, an attorney at the National Immigrant Justice Center, who represented the petitioner in the case, along with attorney Roy Petty and the Chicago-based firm of Sidley Austin LLP. “By then it’s too late for them to leave – if they do, their lives are in danger.”
Nelson Benitez Ramos joined the street gang when he was 14 years old and fled to the United States in 2003. In the United States, Ramos became a born-again Christian and decided he could not rejoin the gang. Believing that as a former gang member he would be killed if he returned to El Salvador, and that the Salvadoran police would not be able to protect him, Ramos applied for withholding of removal, a form of asylum protection.
The immigration court and Board of Immigration Appeals (BIA) denied Ramos’ application on the grounds that Ramos was not a member of a particular social group, one of five categories under which individuals can apply for asylum or withholding of removal. The Seventh Circuit opinion rejects that ruling, however, and clarifies how immigration courts should interpret the definition of “particular social group” in relation to former members of criminal organizations. The published opinion, written by Judge Richard Posner, reaffirmed long-standing precedent that being a former member of a group is an immutable characteristic that cannot be changed, except possibly by rejoining the very group that forms the basis of feared persecution, and therefore constitutes a “particular social group.”
Significantly, the Seventh Circuit noted Congress has not chosen to explicitly bar all former members of criminal organizations from asylum or withholding of removal, and that the BIA’s attempt to bar all former gang members lacks a reasoned explanation. “Such an extension might be thought perverse in a case like this,” Posner wrote. “Ramos would not have quit the gang had he thought he’d be sent back to El Salvador, and if he is sent back his only hope of survival … will be to abandon his Christian scruples and rejoin the gang.”
The Seventh Circuit also noted that while former membership in a gang could lead to a denial of asylum as a discretionary matter or could subject an applicant to other mandatory bars to protection, the BIA had not rejected Ramos’s application on those grounds. While the Seventh Circuit ruling determines that Ramos’ identity as a former gang member does meet the requirements of a particular social group, it does not grant Ramos withholding protection. Ramos’ case will now return to the immigration court for reconsideration.
Ramos’ case highlights the need to preserve judicial review of immigration decisions by the federal courts, to ensure that people facing persecution in their native countries have an opportunity to appeal immigration court rulings that improperly interpret our country’s complex immigration laws. The obstacles many people face in appealing unjust decisions to the federal courts violate U.S. obligations under international human rights treaties. The National Immigrant Justice Center emphasized the importance of judicial review in testimony submitted today for hearings on Capitol Hill, where the U.S. Senate will examine U.S. compliance with international human rights laws.
Click here to download the Seventh Circuit opinion in Ramos v. Holder (PDF)
Heartland Alliance’s National Immigrant Justice Center provides direct legal services to and advocates for immigrants, refugees, and asylum seekers through policy reform, impact litigation, and public education. For more information visit www.immigrantjustice.org.