There are a few things that may hamper the new Trump Administration’s plans to deport thousands of undocumented “criminal” aliens – namely the 1984 Convention Against Torture and asylum requests.
On Wednesday, the 9th U.S. Circuit Court of Appeals ruled that former gang members are not a social group entitled to protection under the Convention Against Torture, (CAT). Judge Consuelo Callahan said courts must defer to that interpretation by the Board of Immigration Appeals, (BIA).
But that wasn’t the end of it. In this particular case, the appeals court said the BIA failed to apply the correct standard for assessing the alien’s request for protection under CAT, namely that he may be subject to torture by the gang, police or clandestine death squads if sent home.
Since 2001, the 9th Circuit has said that CAT protection against deportation applies when it can be shown “more likely than not” the alien would be tortured, and that applies to “all applicants, even those who are former gang members convicted of an aggravated felony.” (Callahan dissented in this case in 2001.)
Wilfredo Garay Reyes, an El Salvadoran, fled to the U.S. illegally. In 2000, at the age of 17 he had joined the Mara 18, an El Salvadoran gang, and participated in three to five robberies of wealthy ranchers. But a new and violent leader took over the gang four months later and Garay participated as a driver, armed with a gun, in two or three bank robberies.
After six months in the gang he left it and went into hiding. But he feared retribution. Eventually he was found and shot in the leg. Months later he was attacked again in a billiard hall with machete-wielding attackers. He escaped. He had a gang tattoo removed and entered the U.S. illegally in 2001.
Garay is now 33, has a wife and two daughters. There is no indication Garay has been involved with gangs since he fled to the U.S., the court said.
In 2009, Immigration and Customs Enforcement, (ICE), ordered him to appear and be removed from the U.S. Garay conceded he was subject to removal but he sought asylum in 2010.
Garay argued that he was part of a distinct social group – former gang members who renounced membership — and that as a deportee from El Salvador he would be subject to reprisals from the gang and potential arrest and torture by police or clandestine death squads.
The 9th Circuit ruled Wednesday Garay was denied a fair opportunity by an immigration judge to show he could be subject to torture by former gang members, police or death squads, if sent home. The immigration judge mistakenly suggested that death is not a form of torture, although prior court rulings have found that it is.
In addition, the judge disregarded Garay’s written description of Mara 18’s practice of killing defectors by placing gas-filled tires around them and setting them on fire, the court said. And the Board of Immigration Appeals, (BIA), did not correct the error, wrote Callahan.
He will remain in the U.S. while his case is sent back to the immigration judge to correct the errors and reconsider his torture claim.
It is important to note, the case set an significant precedent that will be helpful to the Justice Department by saying courts must defer to the BIA’s interpretation that former gang members are not a social group protected under CAT.
The BIA rejected Garay’s claim for asylum based on his former gang membership saying it did not amount to a “distinct social group” entitled to protection. The 9th Circuit held, for the first time, the BIA’s interpretation of a “distinct social group” is entitled to deference by the appeals court.
That will make it tougher for gang defectors to claim CAT protection.
To gain asylum, Garay had to demonstrate he was persecuted or fear persecution on account of his former gang membership. The appeals court held that gang defectors was too amorphous and not a socially distinct group in the eyes of either El Salvadorans or Garay’s potential persecutors.
This aspect of the decision is important in light of the 2014 flood of children who crossed the border illegally into the U.S., many fleeing gang recruitment and drug violence.
By midsummer 2014, the numbers had grown to an unprecedented 57,000 children, 75 percent of them from Central America, who had cross into the U.S. unaccompanied by an adult. Another 22,000 were detained at the border with their parents.
President Obama declared it a “humanitarian crisis.”
Many were fleeing Mexico’s powerful Sinaloa and Los Zetas cartels, which had moved into Honduras, Guatemala and El Salvador, to transport cocaine, heroin and chemicals for methamphetamine.
It was in this cauldron that appeals court began to struggle with the BIA’s rigid use of the “social visibility” standard for aliens seeking asylum. (“Social distinction” is merely a new BIA name for “social visibility” standard, Callahan said.)
The 7th Circuit in Chicago and the 3rd Circuit in Philadelphia rejected the standard as unreasonable between 2009 and 2011.
The 9th Circuit, with the largest immigration docket in the U.S., said in 2013 that “social visibility” did not require literal visibility, but that courts should consider how others view the social group – concluding the perception of the persecutors “may matter the most.”
Over the next few years, expect to see the courts packed with thousands of aliens who have potentially legitimate claims for asylum or protection against torture as the new administration tries to speed up deportations.
The opinion by Callahan was joined by Judges Michael Daly Hawkins and Johnnie Rawlinson.
Case: Garay Reyes v. Lynch, No. 14-70686