Practice Advisory Series
I. Introduction
Where persecution by a gang or gang recruitment may not be enough to establish membership in a particular social group, a family may be considered a particular social group. If the applicant can show that the gang is targeting them because of a relationship to a family member, they may be able to win asylum. The person seeking asylum should seek to establish:
Persecution by the gang is based on the family relationship, not (just) on attempts to recruit the family members;
Persecution of the family is not a means to an end (such as recruitment); one central reason for the persecution is the immutable family relationship;
Persecution by the gang is severe; and
The government is unwilling or unable to protect the family.
"To be cognizable, a particular social group must 'exist independently' of the harm asserted." Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11. The Ninth Circuit concluded that the proposed particular social groups, "citizens…who are targeted by gang members for extortion, robbery, and physical harm" and "young men who are recruited to join the gang," were not cognizable because they did not share any common characteristic or social distinction aside from their persecution by the gangs. Cruz-Perdomo v. Garland, No. 16-70844, 2022 U.S. App. LEXIS 14553, at *2-3 (9th Cir. May 26, 2022); Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020) ("[A] particular social group must exist independently of the harm asserted, and . . . the BIA must consider whether a petitioner's social group is cognizable if it is defined without reference to the fact of persecution." (internal citation omitted)).
Courts have found that individuals resisting recruitment to a gang or being otherwise vulnerable to gang violence is not a particular social group because it does not have any common characteristic independent of that shared vulnerability. "Haitians who refuse to join the gangs, or be a gang member in Haiti" is not cognizable. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019); Oscar v. Garland, 859 F. App'x 45, 46 (9th Cir. 2021). However, where gangs receive government support for intimidating political opponents of government officials, it may be possible to argue that opposition to the gang is a political opinion. An applicant does not need to prove that "he . . . actually held a political opinion or acted in furtherance of it, but must provide 'some evidence' . . . that the persecutor was motivated by a belief that the petitioner held the political opinion." Charles v. Garland, 853 F. App'x 148, 149 (9th Cir. 2021) (quoting Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015).). If a gang is closely tied to a government or political party, opposition to or conflict with that gang may constitute a political opinion for purposes of asylum. Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988).
a. Particularity and Social Visibility
In Matter of W—G—R—, the BIA reviewed its historical efforts to construe the statutory term "particular social group" as it applies in asylum and withholding cases. 26 I. & N. Dec. at 209-10. In Matter of W—G—R—, the BIA adhered to its previous holdings that "both particularity and social visibility are critical elements in determining" the cognizability of a particular social group, but re-named the "social visibility" criterion as "social distinction." Id. The BIA explained that "the focus of the particularity requirement is whether the group is discrete or is, instead, amorphous." Id. at 214. “To have the ‘social distinction’ necessary to establish a particular social group, there must be evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group. Although the society in question need not be able to easily identify who is a member of the group, it must be commonly recognized that the shared characteristic is one that defines the group.” Id. at 217.
In Garay, the Ninth Circuit accepted as reasonable and entitled to deference the BIA’s argument that Garay's “proposed group of ‘former members of the Mara 18 gang in El Salvador who have renounced their gang membership’ was not cognizable. The BIA reasoned that ‘[t]he group as defined lacks particularity because it is too diffuse, as well as being too broad and subjective.’ The BIA commented that, ‘[a]s described, the group could include persons of any age, sex, or background. It is not limited to those who have had a meaningful involvement with the gang and would thus consider themselves—and be considered by others—as 'former gang members.'" Garay Reyes v. Lynch, 842 F.3d 1125, 1132 (9th Cir. 2016). “Addressing the "social distinction" requirement, the BIA stated that "[t]he record contains scant evidence that Salvadoran society considers former gang members who have renounced their gang membership as a distinct social group." Id. at 222. The BIA concluded that Garay had not provided evidence demonstrating that his proposed particular social group is "perceived, considered, or recognized in Salvadoran society as a distinct group." Id.
The Ninth Circuit held that “the social visibility inquiry cannot require on-sight visibility. . . the proper inquiry is whether a proposed particular social group's shared characteristic or characteristics would generally be recognizable by other members of the community, or whether there was evidence that members of the proposed group would be perceived as a group by society." Garay Reyes v. Lynch, 842 F.3d 1125, 1136 (9th Cir. 2016) (internal citations omitted).
The Ninth Circuit found that “The BIA's application of the particularity requirement to Garay is reasonable in light of the absence of record evidence demonstrating that Salvadoran society recognizes the boundaries of a group comprised of former Mara 18 members who have renounced their membership.” Id. at 1137; see also Matter of W—G-R-, 26 I. & N. Dec. at 221 ("The boundaries of a group are not sufficiently definable unless the members of society generally agree on who is included in the group, and [the petitioner presents] evidence that the social group proposed by the respondent is recognized within the society."). The Ninth Circuit concluded that “substantial evidence supports the BIA's conclusion that Garay's proposed group lacks social distinction. The record evidence does, as Garay points out, include some evidence of rehabilitation programs run for the benefit of former gang members and of threats former gang members face from members of their own and other gangs. The record evidence does not, however, compel the conclusion that Salvadoran society considers former gang members as a distinct social group, e.g., distinct from current gang members who may also avail themselves of government programs or from suspected gang members who face discriminatory treatment and other challenges in Salvadoran society.” Id. at 1138.
The Ninth Circuit reiterated this holding in Morales-Gomez: “Nor did Petitioner show that his PSG is socially distinct. This court has held that young men who resist gang recruitment do not constitute a particular social group because gang recruitment and subsequent violence are often so wide-spread that it lacks sufficient particularity and social distinction. See Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2009). Petitioner provided reports and articles that point to wide-spread gang violence in El Salvador, harming individuals irrespective of their membership in the proposed PSG.” Morales-Gomez v. Sessions, 722 Fed. Appx. 693, 694 (9th Cir. 2018); see also Reyes v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016) (record evidence did not compel the conclusion that Salvadoran society considers former gang members a distinct social group). Even tattooed former gang members do not constitute a particular social group. Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir. 2007) ("'Tattooed gang member' falls outside the Ninth Circuit's definition of social group.").
b. The government cannot or will not protect the petitioner.
The family must show that “the persecution was committed by the government, or by forces that the government was unable or unwilling to control." Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). Country conditions may be helpful, but even where country conditions do not establish that the persecuting gang is working with the government or the government is unable to control the gang generally, if the family reported the persecution and did not receive help, or if they can show that reporting would be futile and/or dangerous, this will satisfy the requirement.
Where there is police failure to respond to a report of persecution, a petitioner does not need to prove that a government is "unable or unwilling to control [persecution] 'on a countrywide basis.'" Mashiri v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004) (rejecting the government's reliance on a U.S. Department of State country report to counter the petitioner's evidence of local police unwillingness to protect her and her family). "Instead, an asylum applicant may meet her burden with evidence that the government was unable or unwilling to control the persecution in the applicant's home city or area." Id.; see also Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1063 (9th Cir. 2017).
c. Opposition to gangs or resistance to recruitment may sometimes constitute a PSG
The Ninth Circuit has been split on the question of gang recruitment and protected groups. The Ninth Circuit held that "persons taking concrete steps to oppose gang membership and gang authority" may constitute a particular social group. Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (remanding for BIA to address this question); see also Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). The BIA has also determined that "Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose the gangs" could constitute a particular social group. Matter of M-E-V-G-, 26 I. & N. Dec. 227, 228, 252-53 (B.I.A. 2014) (remanding for IJ to address this question). The Ninth Circuit found that a proposed PSG requires case-by-case analysis, and there is no blanket exclusion of gang-related social groups: “Considering the social group Orellana-Lara proposed, ‘young women in El Salvador who have been solicited by gangs,’ we conclude that the record compels a finding that Orellana-Lara was persecuted on account of her membership in this group.” Orellana-Lara v. Lynch, 646 Fed. Appx. 532, 533 (9th Cir. 2016); see also Vasquez Rodriguez v. Garland, 7 F.4th 888, 891(9th Cir. 2021) (the “decision in Matter of E-A-G- should not be read as a blanket rejection of all factual scenarios involving gangs.”)
However, the Ninth Circuit has found that systematic, targeted, and continuous persecution by a gang in response to a person’s refusal to join the gang does not rise to the level of persecution and that people recruited by gangs, without other shared characteristics, are not a particular social group. Rivera v. Garland, 2023 U.S. App. LEXIS 9972, 3, 2023 WL 3073107 (9th. Cir. 2023). In Rivera, the Court first found that where the MS-13 gang targeted the petitioner for recruitment and when he refused to join, forced him to pay a monthly extortion fee through threats including throwing stones at his home and setting his kitchen on fire, these actions did not constitute past persecution. Id. The court categorized these ongoing attacks as “unfulfilled threats and extortion demands, but no[t] physical harm. And his circumstances, while serious, involve less physical harm than circumstances that still did not compel a finding of past persecution.” Id. at 4. Second, the Court found “Rivera's fear of ‘random violence by gang members bears no nexus to a protected ground.’" Id. at 5-6 (citing Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)). Third, the Court also found that people targeted by gangs for recruitment did not constitute a particular social group because the proposed group “lacked particularity and social distinction” and did not “exist independently of harm and risk of being persecuted.” Id. at 5.
II. Gang Persecution based on Family Relationship
Where persecution by a gang or gang recruitment may not be enough to establish membership in a PSG, a family may be considered a particular social group. If the applicant can show that the gang is targeting them because of a relationship to a family member, they may be able to win asylum. Family relationships may constitute a PSG because they have independent qualities of social distinction and immutable characteristics that groups defined by their persecution (young men recruited by gangs, for example) do not. The family must show that the family relationship is one central reason for the persecution. Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017).
Family ties may meet the requirements of a particular social group, depending on the individual facts of the case. Matter of C-A-, 23 I&N Dec. 951, 959 (BIA 2006) (“Social groups based on innate characteristics such as sex or family relationship are generally easily recognizable and understood by others to constitute social groups.”), clarified by Matter of M-E V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (stating that “kinship ties” is a common, immutable characteristic), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987); see also Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (acknowledging the Board’s long-standing recognition of family members as a possible particular social group). The circuit courts have also held that family may constitute a particular social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009); Ayele v. Holder, 564 F.3d 862, 869 (7th Cir. 2009); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993); see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 492−93 (5th Cir. 2015).
"[T]he fact that a persecutor targets a family member simply as a means to an end is not, by itself, sufficient to establish a claim, especially if the end is not connected to another protected ground." Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A. 2017). For example, a court might deny asylum if it finds that the family was persecuted as a means to pressure one or more members of the family to join the gang or as a means of extortion. A family might be granted asylum if they could show that the gang targeted the family as a result of their relationship to a close family member who witnessed a murder committed by the gang. In L-E-A, the BIA found “the respondent was targeted only as a means to achieve the cartel's objective to increase its profits by selling drugs in the store owned by his father. . . It is significant that the cartel directly asked the respondent to sell their drugs in the store. This act bears no tie to an enumerated ground but is rather a direct expression of the cartel's motive to increase its profits by selling contraband in the store.” Id. at *16.
That does not mean, however, that such membership must have been the sole reason for the persecution. See Aldana-Ramos, 757 F.3d at 18. Family membership need only "qualify as [one] 'central reason' for the harm." Sánchez-Vásquez, 994 F.3d at 47. “[A] motive is a ‘central reason’ if the persecutor would not have harmed the applicant if such motive did not exist. Likewise, a motive is a ‘central reason’ if that motive, standing alone, would have led the persecutor to harm the applicant. . . . [P]ersecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was ‘at least one central reason’ for persecution, an applicant must prove that such ground was a cause of the persecutors' acts.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
In Rios v. Lynch, the petitioner’s father was murdered by a gang. His cousin witnessed the murder and agreed to testify; she was murdered the day before she could. The petitioner’s sister then began receiving threats and fled. The Ninth Circuit found that “The IJ's characterization misapprehended Flores-Rios's complaint—he does not claim to be a member of a social group comprised of witnesses against gangs. Rather, he asserts that he is a member of a social group made up of his family and that he risks persecution by the gang because of its vendetta against his family. The BIA did not address this social group claim—a failure that constitutes error and requires remand.” Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015).
One case out of the Fifth Circuit found that the wife of a man murdered by a gang in Honduras “possesse[d] a ‘characteristic’ that Los Vatos Locos ‘seeks to overcome by means of punishment of some sort.’” Lopez v. Garland, 852 F. App'x 758, 779 (5th Cir. 2021) (citing 19 I. & N. Dec. 439, 439, 1987 BIA LEXIS 5, *1 (B.I.A. June 12, 1987)). The Fifth Circuit found “[s]pecifically, Los Vatos Locos seeks to overcome Morales Lopez's membership in the particular social group of ‘immediate family members of Jose Carlos Mejia Murillo’ by means of torture or death. Los Vatos Locos tortured and murdered her husband after the gang threatened and harassed him over the span of two years.” Id. It would be important to show evidence of threats made directly to the family members, and to illustrate how the threats explicitly or implicitly “specifically and made clear that [they are] a target because of [their] relationship” to the family. Lopez v. Garland, 852 F. App'x 758, 779 (5th Cir. 2021).
In Garcia v. Wilkinson, 988 F.3d 1136 (9th Cir. 2021), the petitioner “credibly testified that the Templars [gang] killed her husband even after he had handed over his property, threatened her and her children when she spoke out about her husband's murder, tried to recruit her son into its ranks, ordered her to leave when she helped her son escape, threatened to harm her if she did not leave within one month, and told her the cartel would keep her property when she left.” Id. at 1144. The BIA found that the gang violence was retribution, not persecution, but the Court disagreed with the BIA’s finding that there was no nexus between the persecution and membership in the family. The father in that family was murdered and the family then “experienced murder, specific death threats, forcible taking of property, attempted conscription, and retaliation for failed conscription.” Id. at 1145. The Court found that the petitioner did not need to prove the gang members’ motivation (pointing out that perpetrators rarely provide a declaration) and concluded that “the timing of the persecution and statements by the persecutor may constitute circumstantial evidence of motive . . . [After the father was murdered] the cartel then sought out [petitioner] at her husband's funeral, a uniquely family affair, threatening her so that she would remain silent about his death . . . The cartel sought out [petitioner] once again after she helped her son escape to the United States to avoid the Templars' recruitment efforts.” Id. Ultimately, the Court found that the targeting described by Garcia was “sufficient to demonstrate nexus if the petitioner shows via uncontradicted testimony that persecutors ‘specifically sought out the 'particular social group' of his family.’” Id.
Parada is helpful in establishing that a second motive - i.e. recruitment - does not negate the nexus if the petitioner can establish animus against the family. Under Parada, sweeping retaliation towards a family unit over time can demonstrate animus distinct from “purely personal retribution.” Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018). Members of the petitioner’s family had experienced murder, physical assault, home invasions, and specific death threats. Id. at 909. The Court held that the BIA's "glib characterization" of the petitioner’s experience as "threats against his family and attempt[s] to recruit him" was insufficient to support the BIA’s finding that there was no nexus to membership in the family group where the petitioner had established that members of a guerrilla political party, FMLN, "specifically sought out the 'particular social group' of his family." Id. at 909-10. It was "immaterial" that the FMLN's attempts to conscript the petitioner would have served the "dual goals" of pursuing their political objectives "and of retaliating against the [petitioner’s] family" because "the latter is a protected ground, even if the former is not." Id. at 911.
In WGA, the underlying claim is based on persecution by Calle 18 on account of a family relationship social group. The 7th Circuit case W.G.A. v. Sessions, 900 F.3d 957, 960 (7th Cir. 2018), is particularly instructive given some factual similarities. In W.G.A., the petitioner’s younger brother was a Mara 18 gang member in El Salvador. Id. at 961. On the day of the petitioner’s brother’s release from prison, “he called [the petitioner] to say that he did not want to be a part of the gang anymore” and “said he could not come home for fear of what the gang would do.” Id. After the petitioner’s brother fled to escape Mara 18 that same day, the petitioner was targeted on account of his family relationship to his brother:
The next day, a man called W.G.A. from a private number. The man told W.G.A. to “be careful” and that “they’re looking for you,” and hung up without identifying himself. The following day - two days after [petitioner’s brother] left prison - four tattooed gang members approached W.G.A. at his house. They asked him where his brother was. When W.G.A. responded that he did not know, one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: “if you don’t [hand] over your brother, you’re going to die here.” The men told W.G.A. that he had four days to comply or they would kill him. They also told him that they would kill him and his family if anyone spoke to the police. Id.
After these events, the petitioner fled to the United States where he applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. Id. The petitioner reported that since he left El Salvador, “gang members have repeatedly threatened his family - over the phone and in person - to demand his and his brother’s whereabouts.” Id.
In W.G.A., the Court recognized that there was past persecution of the petitioner but that the disputed issue is “whether the persecution was motivated by a reason covered by the asylum statutes.” Id. at 962. The petitioner argued that Mara 18 had been motivated by his membership in “one of two particular social groups: (1) members of his nuclear family or (2) family members of tattooed former Salvadoran gang members.” Although both the immigration judge and the BIA had found that the petitioner’s persecution was not sufficiently connected to a particular social group, the Court disagreed and found that the petitioner was persecuted on account of his membership in his nuclear family:
Returning to the merits, this record compels the conclusion that W.G.A.’s membership in his nuclear family was one central reason for the persecution that both sides agree he suffered. Testimony by W.G.A. and his family members leaves no doubt that the gang repeatedly targeted the entire family because of their relationship to [petitioner’s brother]. Country reports and news articles throughout the record corroborate this testimony and demonstrate widespread recognition that the Salvadoran gangs target nuclear family units to enforce their orders and to discourage defection. Id. at 966.
Importantly, the Court noted the timing of the persecution as evidence that the petitioner’s family relationship with his brother caused the gang to target him: “The gang members threatened W.G.A. at gunpoint just two days after [petitioner’s brother] said he was defecting.” Id. Although both the immigration judge and Board had questioned whether the petitioner’s brother had actually defected, the Court said that “that detail is unimportant” and that “[w]hat matters is that the gang was looking for [petitioner’s brother], likely because they believed he had defected.” Id. In determining the gang’s motivations, the Court turned to the “gang’s own words.” Id. The Court noted that “[w]hen the gang held a gun to W.G.A.’s head, they demanded that W.G.A. reveal his brother’s location” and “when the gang warned W.G.A. not to notify the police, they threatened to kill his entire family.” Id.
The Court further cites country reports and news articles which discuss family members being targets for gangs, and possibly of relevance to your case, the Court notes a United Nations report which advised that family members can “be a target for attacks and assassinations by gangs, sometimes even after the the person who was initially targeted by the gang in question has fled or has already been killed.” Id.
The United Nations still espouses the view that family membership is a PSG. In 2022, the U.N. High Commissioner for Refugees (UNHCR) advised that “family members of individuals targeted by gangs” are a common risk profile for individuals with gang-related asylum claims in Central America and Mexico.1 The UNHRC advised:
Family members of individuals targeted by gangs for any reason are at an increased risk of harm themselves. They may be targeted in acts of retaliation, to exert pressure on a gang resisting family member, or because they are perceived as holding anti-gang views.
This is not a new view, as the UNHCR has consistently recognized that an asylum applicant’s family may constitute a social group:
An applicant who is a family member of a “gang resister” (or gang member) could also be persecuted for reasons of his/her family membership, for example, where the family has a known record of being opposed to a gang. In such cases, the applicant’s “family” may be regarded as a relevant particular social group.
The family should provide facts showing that the gang targeted them because of their family relationship and that there was no financial or other motivation. If there are facts showing that the gang had other motives, such as gang recruitment, the family should show that these motivations were secondary and that the family relationship was at minimum one central reason - the persecution would continue whether or not it would benefit the gang. The family must provide evidence showing that one of the persecutors’ central motives is animus towards the family, rather than that they are persecuting the family as a means to an end, such as financial gain or recruitment.
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