TEARING DOWN THE WALL BETWEEN REFUGE AND GANG-BASED ASYLUM SEEKERS: WHY THE UNITED STATES SHOULD RECONSIDER ITS STANCE ON CENTRAL AMERICAN GANG-BASED ASYLUM CLAIMS.

Author:Masetta-Alvarez, Katelyn
 
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Gang violence is plaguing El Salvador, Guatemala, and Honduras. Murder, sexual violence, and other major human rights violations committed by gang members has forced countless people to seek protection in surrounding countries. While other nations have recognized and addressed the problem by modifying their immigration policies, the United States continues to deport its most vulnerable migrants because they do not meet its stringent social group requirements. Despite the United States' stringent asylum-policy application, the history of asylum law shows that the "social group" category should adapt to meet the situation of the ever-changing refugee. The United States recently applied its social group analysis flexibly to accommodate domestic-violence-asylum applicants, even though it historically denied such claims. Domestic-violence-asylum claims and many gang-based-asylum claims share social-group characteristics and contain the same underlying human-rights violations, yet the United States continues to reject gang-based-asylum claims under its social group analysis. Because the United States' recently accepted domestic-violence-asylum claims, and in order to accommodate our world's current needs, the United States should apply asylum law flexibly to grant humanitarian relief to Central American victims of gang violence.

  1. INTRODUCTION II. THE HISTORY OF UNITED STATES ASYLUM LAW DEMONSTRATES THAT ASYLUM LAW MUST BE ABLE TO ADAPT TO THE WORLD'S CURRENT NEEDS IN ORDER TO HELP INDIVIDUALS FLEEING FROM PERSECUTION A. The origins of United States asylum law come from international law, which indicates that countries should adopt a flexible approach to asylum adjudications B. United States asylum policy is supposed to protect individuals Against current and evolving human rights abuses C. The United States' has a narrower asylum policy than the 1951 United Nations Convention on the Status of Refugees calls for asylum to be inclusive of individuals from diverse situations fleeing human-rights abuses III. GANG-BASED-ASYLUM APPLICATIONS HAVE SPIKED IN THE UNITED STATES SINCE THE 1990S AS A RESULT OF INCREASED GANG VIOLENCE AND IMPUNITY IN HONDURAS, EL SALVADOR, AND GUATEMALA IV. MEXICO, AUSTRALIA, AND SEVERAL OTHER COUNTRIES HAVE RECENTLY UPDATED THEIR HUMANITARIAN IMMIGRATION POLICIES TO MEET THE NEEDS OF THE CURRENT REFUGEE CRISIS IN CENTRAL AMERICA V. THE ELEMENTS OF ASYLUM, WITHHOLDING OF REMOVAL, AND CONVENTION AGAINST TORTURE OFTEN BAR GANG-BASED-ASYLUM APPLICANTS FROM HUMANITARIAN RELIEF IN THE UNITED STATES A. To qualify for asylum, applicants must show that they fear persecution based on one of the five protected grounds B. Applicants who are ineligible for asylum may apply for Withholding of Removal or for relief under the Convention against Torture. VI. CENTRAL AMERICANS FLEEING GANG VIOLENCE DO NOT QUALIFY FOR ASYLUM, WITHHOLDING OF REMOVAL OR CAT BECAUSE THEY CANNOT ESTABLISH A PROTECTED GROUND OR EVIDENCE THAT THEIR GOVERNMENT IS UNWILLING OR UNABLE TO ASSIST THEM A. Gang-based-asylum applicants struggle to create a social group and nexus under current asylum policy B. Gang-based asylum applicants have difficulty showing that their government is unable or unwilling to protect its citizens against gang violence VII. THE BIA INCONSISTENTLY APPLIES ITS SOCIAL-GROUP ANALYSIS BECAUSE IT RECOGNIZES GENDER AND NATIONALITY BASED SOCIAL GROUPS FOR DOMESTIC-VIOLENCE- AND FGM-ASYLUM CLAIMS, BUT DENIES GANG-BASED-ASYLUM CLAIMS THAT HAVE THE SAME SOCIAL GROUP CHARACTERISTICS VIII. THE UNITED STATES SHOULD ADAPT ITS HUMANITARIAN-IMMIGRATION POLICY TO ACCOMMODATE INDIVIDUALS FLEEING FROM GANG VIOLENCE IN CENTRAL AMERICA I. INTRODUCTION

    The image of a refugee looks very different today than it did in 1951, when World War II ended, and the international community came together to craft the U.N. Convention on the Status of Refugees. (1) When Americans thought of refugees, they immediately imagined European Jews whom Hitler oppressed, enslaved, and tortured under his reign. (2) As the years progressed, however, this distinct refugee image began to fade as the United States saw an influx of refugees from all over the world, not just Europe. This happened because the face of the refugee constantly changes depending on current events. The United States, as a generous and powerful country, has a moral obligation to refine its refugee policy to accommodate these new faces. This obligation includes not only accommodating the faces of distant lands, but also those of our neighbors.

    Because the world's needs constantly fluctuate, asylum is a gray area in immigration law. One particularly cloudy area is gang-based asylum. Under current U.S. policy, most gang-based-asylum claims do not qualify for protection because they do not fall under the Department of Justice's narrow interpretation of "particular social group," or because the applicant did not seek protection from their country's law enforcement agency. (3) Yet these asylum claims tug at one's heart. Many gang-based claims involve children fleeing physical or sexual abuse at the hands of gang members--stories that would touch the hearts of even the toughest immigration judges. (4) So, immigration attorneys invent detailed social groups to meet the protected ground element of asylum, such as "Young Salvadoran males who grew up in San Salvador and attended private school" to try to pass through the eye-of-the-needle toward a successful asylum claim. (5) Such elaborate social groups are unnecessary considering that other BIA-recognized-asylum claims based solely on gender and nationality pass the test. (6) Yet, gang-based-asylum seekers still apply despite their low chances of winning in hopes that they may catch the attention of a particularly sympathetic immigration judge, or at least buy enough time to go through the appeal process and pray that there is a change in asylum law in the meantime. Eventually, though, many applicants are deported to their country of origin and return to the fear that they fled. (7) It is time for the United States to change its asylum policy to reflect the current needs of our world, especially the needs of our southern neighbors in Central America.

    This note argues that the United States should accept the new refugees fleeing from gang violence in Central America because asylum law is supposed to be applied flexibly to meet the current needs of our world. (8) Not only does the text of the U.N. Convention on the Status of Refugees from 1951 indicate that the international community should be flexible in its asylum policy, but the United States' own recent asylum-policy changes show that the United States should adapt its policy to the growing needs of the international community. (9) Because of the gang-violence crisis crippling our neighbors in Honduras, El Salvador, and Guatemala, the United States should refine its refugee interpretation to accommodate this new wave of refugees.

    To demonstrate why the United States should change its refugee policy in favor of gang-based asylum, this note will discuss the history of asylum law, the crisis in Central America, and the United States' historically responsive approach to our world's ever-changing refugee. In Section II, this note will consider the history of asylum law in the United States as well as how the international community shaped its asylum policy. It will also discuss how international human rights law influences asylum law, and why asylum policy should protect internationally recognized human rights. Section III will explore the current spike in gang violence in Central America's northern triangle (10) and the mass exodus it has caused. In light of this tremendous migration, Section IV looks into how the international community is responding to the Central American crisis by adapting humanitarian immigration policy. Section V delves into the elements of and bars to asylum, Withholding of Removal, and Convention against Torture relief. Section VI explains why Central American gang victims do not qualify for asylum under the United States' current policy.

    Although the United States has not yet adapted its policy to accommodate gang-based-asylum claims, Section VII discusses how the United States has flexibly accommodated certain refugees in the past, particularly those with gender-based-asylum claims. Finally, in consideration of the history of asylum policy in the United States, the crisis in Central America, and the United States' recent asylum-policy changes to accommodate incoming refugees, Section VIII argues why the United States should adapt its current policy to aid the thousands of Central Americans fleeing gang violence.

  2. THE HISTORY OF UNITED STATES ASYLUM LAW DEMONSTRATES THAT ASYLUM LAW MUST BE ABLE TO ADAPT TO THE WORLD'S CURRENT NEEDS IN ORDER TO HELP INDIVIDUALS FLEEING FROM PERSECUTION.

    1. The origins of United States asylum law come from international law, which indicates that countries should adopt a flexible approach to asylum adjudications.

      United States asylum law is firmly rooted in international law. (11) One "pillar of international law" is that every state has territorial integrity, which gives sovereign states authority to grant asylum to whomever they choose, notwithstanding treaty obligations. (12) Originally, the United States limited its refugee intake to persons who were displaced after World War II. focusing especially on individuals of Jewish decent. (13) In the mid-1960s, however, the United States began admitting refugees from communist countries and the Middle East. (14) The shift in asylum policy occurred in response to the threat of communism and embraced an ideological definition of "refugee." (15) Refugee status, then, was based on the applicant's country of origin rather than a genuine fear of persecution, even though the Refugee Convention defines refugees as individuals who are unwilling or unable to return to their country on...

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