Women and Gangs: A Need for a Better Social Group for Female Victims of Gang Violence by Nelsey De La Nuez

The best category women facing persecution from gangs fit into when they apply for asylum is “membership in a particular social group.”  Yet one of the most controversial parts of the definition of refugee is the phrase “membership of a particular social group.”  The requirement in the United States for persecution based on “membership of a particular social group” originated from the 1951 Convention and the 1967 Protocol.[5] Originally the word “social group” was not included in the definition of refugee in the 1951 Convention.[6] However, the U.N. added the phrase at the end of the deliberations of the draft Convention.[7] Even though the U.N. gives very little guidance in its interpretation of “membership of a particular social group,” it implies an overlap of race, religion or nationality and/or something more.[8]

In essence, the U.S. asylum law does not adequately take into account the particularly high level of victimization and vulnerability Latin American women, or any women face in their home countries due to a high level of gang activity.  One Immigration Judge stated:

“. . . our laws . . .  do not provide a proper vehicle to handle the myriad social group issues emanating from the gang based extreme violence in Latin America, nor do they point to any methods for protection for the most vulnerable segments of society who are affected. This Court would feel better about providing some form of protection to this respondent but believes it impossible without legislating from the bench.”[9]

For this reason, judges should recognize a particular social group that would address the problem.

Part I of this paper discusses the rise and prevalence of gangs in Latin America.  Part I also discusses the prevalence of violence targeted at women because of gang-related activities.  Part II discusses the origins and meaning of refugee law, in particular the origins and definitions of social group.  Case law currently provides three definitions.  These definitions are the original Acosta definition, the expanded Acosta definition with a “visibility test,” and the Ninth Circuit definition. Part II also explains which of these definitions should be adopted by the courts.  Part III suggests and analyzes a proposed social group that would include all female victims of gangs.  Part III also describes why courts should adopt the proposed social group model and explain the various nuances about the proposed social group when used in asylum applications.  Finally, Part IV discusses the application the proposed social group will have on the applicant’s ability to prove persecution.