Fifth Circuit Decision Illustrates Limits of Asylum: No Protection When Fleeing Gang Recruiter

Jose and Andres Orellana-Monson, ages 11 and 8 at the time they fled El Salvador, were running from a local, violent gang known as Mara 18. The gang had tried to recruit Jose. When he refused, they threatened to kill him, then forced him, at gunpoint, to help rob a store. Andres feared he would be next.

It’s a sad situation, especially given the boys’ young age at the time — but does it qualify the two for asylum in the United States? Unfortunately not, under current U.S. law — at least, in the Fifth Circuit (which covers Louisiana, Mississippi, and Texas).

The two brothers did indeed try to gain asylum, saying that they feared persecution from the Mara 18 gang. U.S. immigration authorities apparently found them believable. But there was one major problem in the case. (No, it’s not that the persecution didn’t come from an official Salvadoran source, but from common criminals — that issue is taken care of by the fact that the group fits into the category of one that is beyond the government’s capacity to control.)

The problem is establishing the critical “nexus” between the persecution and its basis in either the boys’ race, religion, nationality, political option, or particular social group. Lack of such a nexus is the downfall of many an asylum case, and ultimately led the Fifth Circuit Court of Appeals to deny the Orellana-Monson’s claim (in an opinion issued June 25, 2012).

The lawyers for the brothers did their best to fit the two within a particular social group. Such groups don’t necessarily have to match up to any predefined list — the lawyers described them as Salvadoran males between the ages of 8 and 15 who have been recruited by Mara 18 but have refused to join the gang because of their principal opposition to the gang and what they want; and their family members.

The Fifth Circuit found, however, that this supposed group lacked “particularity.” It explained that such a group “is exceedingly broad and encompasses a diverse cross section of society.” The judge’s quoted another court’s opinion in a similar case stating, “Only shared experience — that of gang recruitment — unites them. The gangs target a wide swath of society, and we have no evidence before us that they target young men with any particular political orientation, interests, lifestyle, or any other identifying factors.” In other words, one might say, the definition of this group struck the court as too random to qualify under this legal standard.

The Fifth Circuit further concluded that the Orellana-Monsons’ group lacks the required “social visibility” to qualify for asylum. It stated, “There is little evidence that people who were recruited to join gangs but refused to do so would be ‘perceived as a group’ by society. There is no indication that the gang themselves would even see such ‘non-recruits’ as a group within Salvadoran society.” This argument seems to suggest — without actually coming out and saying so — that the group needs to have formed before the persecutor’s contact with it. And in fact the court does mention a Seventh Circuit court opinion finding “that a member of a family seeking police protection from Mara 18 was not a member of a particular social group, as a social group cannot be defined by its relationship to its persecutor alone or by the fact that its members face dangers in retaliation for the actions against the persecutor.”

To see the entire court opinion, go to the Fifth Circuit’s website at