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Asylum may be granted based on fear of facing gang persecution

On Behalf of | Sep 6, 2013 | Asylum

Generally, getting asylum requires an immigrant to prove that he would be persecuted by the government of his native country if deported back to it. A federal case out of another circuit, along with a few other cases, seems to indicate an expansion of that principle. In light of that case, California immigrants and those located elsewhere may be able to get asylum based on the fear of returning to private gang persecution.

The federal appellate court held that a 55-year-old immigrant may deserve asylum. It reversed the opposite conclusion by the Bureau of Immigration Appeals. It reasoned that the man could be considered a member of a gang-persecuted “social group” whose life, and his family’s life, would be endangered if they are deported to their country of origin.

Asylum requests regarding gang recriminations are usually unsuccessful. The decision from the 8th Circuit Court of Appeals, along with a few other rulings, may indicate an expansion to include street-gang persecution. An immigration law professor at the University of Minnesota indicates that the government’s policy on this issue is inconsistent with international human rights norms.

In the 8th Circuit case, an immigrant from Kenya got mistakenly involved with a ruthless gang and when his loyalty was questioned he was hung by his feet over a fire pit. He still bears the ankle scars from the ordeal. He and his family came here on visitor visas and later asked to stay. They were ordered deported in 2009, despite sexual assaults against a female relative in Kenya. The woman was willing to come here to testify to the dangers but the court said no, but the 8th Circuit has held that it was an abuse of discretion to deny that testimony.

In California and nationwide, asylum applicants must prove they’ll be persecuted if sent back because of their race, religion, nationality, political opinion or membership in a particular social group. They must also prove that the government in their home country is unable or unwilling to crack down or control, or in some cases is colluding with, the gang or entity that is threatening their lives. The Kenya case could turn out to be a test case in which the U.S. Supreme Court may choose to expand the interpretation of the asylum requirements.

Source:, Ruben Rosario: Lakeville man’s asylum case has national implications, Ruben Rosario, Aug. 29, 2013