A few months ago, I represented a young man in removal proceedings who was seeking asylum. Like many other young men from Central America, my client fled from his native country after the notorious street gang, MS-13, targeted him for recruitment.
When I filed my client’s asylum application at one of his hearings, the Immigration Judge sarcastically asked me if I was familiar with Fourth District case law on gang-related asylum claims. When I acknowledged that precedent was against my client, the Immigration Judge questioned how I could “ethically” file an asylum application on my client’s behalf.
The case law the Immigration Judge alluded to was the 2008 Immigration Appeals case, Matter of S-E-G-. In this case, the Board held that young Salvadoran men who resist recruitment in gangs are not members of a particular social group, and therefore ineligible for asylum relief. In a companion case, Matter of E-A-G-, the Board held that individuals who resist gang membership, as well as youth who are perceived to be affiliated with gangs, are not members of a particular social group. While the Sixth and Seventh Circuits have challenged the Board’s social visibility doctrine, the Fourth District has not deviated from the approach developed by the Board in S-E-G- and E-A-G-.
Although Fourth District case law does not currently favor my client’s asylum application, this judge’s diatribe was both unwarranted and inappropriate. My client has a right to file an asylum application and, if denied, the right to have the merits of his case heard on appeal. What recourse does this young man fleeing in fear of persecution and torture in his country have, if not to at the minimum file a claim for asylum and argue the merits of his case in court? Is this not our system of justice to shape and develop law through judicial decisions?
Though American jurisprudence is built on judicial precedent, our common law system does not forbid change. Changes in the law are often appropriate and necessary to allow the law to evolve and keep pace with an ever-changing society. In regards to my client’s case, since 2009, the 6th and 7th Circuits have already issued rulings that have directly questioned the Board’s social visibility doctrine. Such changes are impossible though without individuals like my client issuing challenges to judges’ rulings and forcing dialogue to continue about the judicial interpretation of the asylum statute.
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