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

Over the last decade there has been an increase of violent crimes due to gang activity in Latin America.[1] This phenomenon has also increased various types of crimes in Latin America, especially gender-related crimes.[2] Although gangs in Latin America consist mostly of men and many of their targets are men, a large number of women fall prey to gang-related violence as well.[3] These women consistently face persecution by gangs on a daily basis.  Yet it is difficult for these women to qualify as refugees because the persecution they face does not fit into any of the five categories prescribed by the United States.   In the United States, an individual may not qualify as a refugee unless they have faced persecution based on five grounds: their race, religion, nationality, membership in a particular social group, or political opinion.[4]

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.

[1] See Luz E. Nagle, Criminal Gangs in Latin America: The Next Great Threat to Regional Security and Stability?, 14 Tex. Hisp. J.L. & Pol’y 7 (2008).

[2] Sabastian Amar et al., Seeking Asylum for Gang Based Violence in Central America: A Resource Manual, Capital Area’s Immigrant Rights, Aug. 2007, at 27−39.

[3] Id.

[5] Matter of Acosta, 19  I. & N. Dec. 211, 232 (BIA 1985).

[6] Id. at 232.

[7] T. Alexander Aleinikoff, Protected characteristics and social perceptions: An analysis of the meaning of ‘membership of a particular social group.’ UNCHR Position Paper (Jan. 1, 2003).

[8] Handbook at 19 (defining a “particular social group” as “. . . persons of similar background, habits or social status.  A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.”).

[9] See Meghanne Boyle, Paths to Protection: Ideas, Resources, and Strategies for Presenting Central American Gang-related Asylum Claims, Immigration Briefings, Westlaw, available at http://cgrs.uchastings.edu/documents/cgrs/advisories/Boyle_Immigration_Briefings_Gang_Asylum.pdf (quoting from the case Matter of Anon., IJ Decision, San Francisco, IJ Decision at 12 (Nov. 2, 2006), in which the court denied a woman, who had been sexually harassed and assaulted by male gang members in Guatemala, asylum because of how the applicant defined her social group.).

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