Central American Gang Related Asylum Cases: Background, Leverage Points And The Use Of Expert Witnesses
IntroductionGiven current case law there is a widespread belief that Central American gang related cases are essentially unwinnable. Based on conversations with seasoned immigration attorneys and my experience as a trial consultant and expert witness, however, I encourage readers to modify this perception by adding a caveat: These cases are essentially unwinnable without engaging a skilled expert who becomes familiar with the circumstances of each case and partners with attorneys to develop strategy and assist in case preparation. Skilled trial consultants and expert witnesses are able to provide a number of essential and interrelated services. First, based on their understanding of both the socio-political context of Central America and the defining features of gang culture, experts are able to discern the important, often subtle nuances of a case; analyze the way in which those facts interact and contribute to the presenting situation; and predict the potential risk to respondents if returned to their country of origin. Through this process, experts assist attorneys to identify the most salient features of a case and to put those facts in the proper context, as well as playing an essential role in the development of case strategy. Second, through detailed affidavits and/or testimony, experts are able to provide immigration judges and asylum officers (if invited to do so by the AO) with a comprehensive overview of the Central American socio-political context vis-à-vis gangs, a professional and nuanced interpretation of specific case facts and circumstances, and an assessment of gang mentality and culture insofar as they potentially affect individual respondents. By providing individualized affidavits and testimony, the expert paints a picture which reflects the totality of circumstances and predicts, articulates, and justifies the risks to respondents, if returned. Once accomplished, this establishes a foundation for attorneys to move forward with the presentation of key legal arguments. Note: I have been involved in numerous cases where experts at previous stages simply provided country condition affidavits and/or testified as to the scope and nature of the gang problem within the country in question. Given the climate of the courts with respect to Central American gang related cases, this is not likely to be sufficient. In addition to discussing country conditions and the gang situation in general, it is imperative that expert affidavits and testimony also discuss the details of each individual case, place those facts and circumstances within the larger context, and describe the particular risks to respondents arising from those contextual and environmental variables. Third, because asylum officers and immigration judges generally possess a limited and/or distorted understanding of both the Central American socio-political context and gang culture, experts fulfill an essential function by educating court officials. Through well written affidavits and testimony, experts substantially increase the likelihood that decision-makers will enter into deliberations with a contextual understanding of the socio-political environment respondents fled and would return to, and an appropriate conceptual framework for understanding gangs and the threat they represent given case specific facts. Finally, experts may assist attorneys to draft examination questions and prepare respondents and other witnesses for direct and cross examination. Because of the court's position as pertains to Central American gang related cases, it is imperative that attorneys proactively defuse anticipated government arguments in a systematic manner, and experts can play an important role in developing and structuring examination questions and assisting in the preparation of witnesses in such way as to accomplish that objective. The Scope of Central American Gang Related Cases Thus far, the spotlight has been on young people fleeing gang recruitment and the court's unwillingness to view these youth as a particular social group is well known (although the re-opening of the Matter of S.E.G. provides a basis for cautious optimism). Despite the prevailing dim view with respect to young this population's efforts to seek relief through immigration courts there may be, depending on the nuances of the case and the totality of circumstances, opportunities to develop strategies which the courts may view in a more favorable light than the "youth fleeing gang recruitment" social group argument. It is also important to recognize that youth fleeing gang recruitment constitute only a portion of the gang-affected Central American population seeking relief through U.S. Immigration Courts. A significant percentage of respondents were threatened or subjected to persecution by gangs because they: 1) espoused anti-gang political opinions, 2) participated in community or church-based gang prevention and intervention activities, 3) witnessed or were victims of gang crimes, 4) engaged in investigations or otherwise cooperated with law enforcement, and/or 5) are kin to someone who had fallen into disfavor with gangs. There are oftentimes potentially viable strategies in these cases, but the facts must be properly leveraged and arguments informed by attorneys' understanding of the socio-political context of Central America and the culture of gangs. Historical Overview Beginning in the 1980's, prior to the development of gangs as they exist in the region today, nearly a million Central American youth and their family members migrated to the U.S. to escape civil conflicts within the region.1 Upon arrival, they found themselves out of their culture, living in poverty, and marginalized by other immigrant groups. A small percentage of these youth joined existing Hispanic gangs including 18th Street, a gang established many years prior to the wave of Central American immigration, whereas others formed gangs of their own, most notably the Mara Salvatrucha (MS13). Partially in response to increasing levels of criminal activity, the U.S. initiated a policy of mass deportations to Central America during the 1990s.2 Many of these deportees were traumatized by early exposure to war, had no ties to family or community within their countries of origin, were raised in the U.S., spoke little or no Spanish, and now had significant gang experience. These repatriations contributed to the proliferation of gangs in two ways: First, upon return many deportees were left to fend for themselves on the streets, as regional governments had no support programs in place to assist them during the transition back to their home countries; and second, U.S. policy at the time prohibited immigration officials from disclosing information about criminal deportees to receiving governments.3 As a result, seasoned gang members and youth at high risk for gang membership poured into the region by the thousands, where they lived in the shadows and under governmental, law enforcement and social service radar screens. Needless to say this contributed mightily to the proliferation of gangs in the region. The proliferation of gangs was also related to the fact that the region's societal and economic infrastructures had been decimated by protracted civil conflict and as wars came to an end, having nowhere else to go, many demobilized guerrillas and former military personnel turned to crime and the formation of gangs. Moreover, the region was awash in weapons and as former combatants, members of these emerging gangs were well versed in their use, desensitized to violence, and prepared to employ terror as a strategy for establishing their criminal organizations and extending their reach. Together, MS 13 and their rivals, 18th Street, now represent the nexus of the gang phenomenon in the Central American region. It is important to recognize that while construed as a "gang problem," the phenomenon substantially more complex, as it involves the dynamic relationships between gangs, organized crime and drug cartels. This is not to suggest that all gangs are involved with these more sophisticated criminal actors, but the overlap is significant and disentangling gangs from these other crime groups has become increasingly difficult. Current Situation MS13 and 18th Street affiliated clicas (individual gangs) are ubiquitous in small, medium-sized and large urban areas in El Salvador, Honduras, and Guatemala. With regional membership estimates that range between 70,0004 and 300,000,5 gangs are commonly portrayed by government officials and the media-correctly or incorrectly-as the main contributor to the region's high rates of crime and violence and the principal threats to its socio-political stability, economic growth, and international image.6 Within the region, gangs currently exist in two distinct but interrelated forms:7 First, youth gangs that engage in robbery, extortion, street level drug dealing, and other opportunistic crime but which lack high levels of sophistication or well established linkages to other gangs or criminal organizations outside their own neighborhoods. Second, highly organized adult-directed clicas, which, in addition to the crimes listed above, are also active in international trafficking in narcotics, weapons, stolen vehicles, and persons. Frequently these adult-driven clicas are connected to organized crime, drug cartels and corrupt public officials and benefit from the organizational savvy and resources of these sophisticated criminal actors. Not surprisingly there is a fluid dynamic between youth and adult gangs, with no clear lines of demarcation between them. Both youth and adult-driven clicas employ extraordinary levels of terror and violence as tools for establishing, maintaining, and expanding their positions. Regional and U.S. Governmental Responses Regional governments responded to the ascent of gangs with approaches known colloquially as Mano Dura (Tough, or Firm Hand).8 Both El Salvador and Honduras amended their penal codes to criminalize gang membership and allow for arrest and extended incarceration for "Illicit Association," independent of the conviction of other crimes. The government of Guatemala did not formally adopt Mano Dura legislation, but its strategy mirrors the law enforcement and military approaches of its neighbors. Regional governments place little or no emphasis gang prevention, rehabilitation, or social reinsertion programs and the extent to which such government support does exist the effectiveness of those programs is undermined by lack of political will, grossly inadequate funding, and widespread corruption. As a strategy, Mano Durisma ignores empirically validated principles for responding to gang problems, has been denounced internationally because of the egregious human rights violations it spawned, and arguably intensified the gang problem through unintended negative consequences.9 Mano Dura forced gangs to become more clandestine and organizationally sophisticated, created crises in each of the country's prison systems, and contributed to increased gang crime and violence. Further, because of states' failure to resolve the problem public confidence in government is virtually non-existent, resulting in both rampant vigilantism and a significant disruption of the political discourse and process. Vigilantism is visible through the resurgence of civil war era style "death squads" responsible for the extrajudicial execution of thousands of known and suspected gang members throughout the region since the mid-1990s.10 Current and former gang members I have spoken to throughout the region have stated that the Mano Dura strategy has had the effect of actually driving many deeper into gangs, despite their desire to extricate themselves from that culture. Despite recognizing the need for a comprehensive strategy that addresses the root causes of the problem,11 U.S. support to regional governments has focused primarily on law enforcement measures. These include Central American police training, development of shared law enforcement databases, inter-agency intelligence sharing, creation of an MS13 task force and FBI field office in El Salvador, and coordinated international sweeps targeting gang members in the U.S. and Central America. The U.S. has invested in prevention and rehabilitation through the U.S. Agency for International Development and a number of other organizations with which the U.S. government is affiliated (e.g., the Inter-American Development Bank, Organization of American States, United Nations, World Bank, Pan-American Health Organization, Inter-American Coalition for the Prevention of Violence) but none of these organizations is specifically tasked with or budgeted for addressing a phenomenon of this nature or magnitude. Consequently, the level of investment and expertise is inadequate in relation to the scope of the problem, and responses often fail to directly target those involved with or most at-risk for gang activity in the areas where they live and move. Law Enforcement Response and Capacity Despite the inclination to interpret the "get-tough" Mano Dura type approaches as reflective of a governmental commitment to confront the gang problem, the actual response has been disjointed and wildly inconsistent. At times police arrest of known and suspected gang members but due to under-resourced, inept, and corrupt investigative and judicial systems-coupled with gang members' intimidation of witnesses, police, prosecutors, and judges-prosecutions almost never occur.12 At other times, officers avoid even entering gang-affected neighborhoods, as if waiting for rival gang members to kill each other off and/or because they are terrified of the gangs and unwilling to confront them.13 Many citizens and representatives from civil society have advised me that for all practical purposes there is no police presence in many gang-affected neighborhoods. Not surprisingly, gangs essentially "own" these neighborhoods and not only extort inhabitants to live, move, and operate within them but have impunity to dispense their own brand of cruel "justice" to those who fall into disfavor. I am personally familiar with numerous cases involving rape and murder that have gone uninvestigated despite the fact that victims and family members reported the identities of the perpetrators to police. Another issue is the fact that Central America is characterized by rampant corruption among police and public officials who are invested in gangs operating with impunity. Thousands of police officers, bureaucrats, prosecutors, judges, and elected officials are in collusion with gangs14 and the resulting corruption is so rampant as to significantly undermine efforts to establish the rule of law in the region and make a mockery of government claims to be addressing the problem. The combination of resource scarcity, ineptitude, corruption, and gangs' intimidation of police, prosecutors and judges results in a situation where governments are unwilling and/or unable to respond appropriately or effectively to the problem.15 And beyond the fact that police fail to respond or investigate when summoned by the public, none of the affected countries have protocols in place to provide protection for witnesses or victims, so contacting police is not only futile but dangerous because it increases the likelihood of future persecution. Gang Mentality and its Implications for Asylum Seekers An exhaustive discussion of gang mentality is beyond the scope of this article but the concept of "respect" and responses to perceived acts of "insult" and "disrespect" are critical and warrant review.16 To be "respected" is synonymous with being feared, which is based on one's propensity for violence, bravado, audacity, and do-or-die commitment to the gang and the lifestyle. Being "respected, in turn, serves as the basis for an individual's "reputation." The need for "respect" and "reputation" represent a compelling force in gang members' lives and they go to great lengths to establish and preserve both with members of the own gang, rivals, and the public. These same principles apply to gangs as a whole in that entire gangs are driven by the need for "respect" and "reputation." This is of direct relevance to attorneys and advocates because the implications of gang mentality underlie many Central Americans' decision to flee their home countries. Rebuffing recruitment efforts, refusing to pay extortion demands or provide material support, espousing anti-gang political sentiments, participating in community-based gang prevention and intervention activities, reporting gang activity to police, pursuing prosecution, or fleeing to avoid gangs are acts that gang members perceive as challenges; "insults" and acts of "disrespect" which demand a violent and punitive response. Feeling powerless to end the cycle of persecution, many who have been targeted by gangs see migration to the U.S. as their only viable alternative. There are several key factors to highlight with respect to gang mentality and applicants' risk of future persecution. First, once an individual or family has been targeted for retribution, the gravity of the threat does not diminish with time; even over the course of years. Second, because fleeing to the U.S. to avoid a gang is itself interpreted as an "insult" and an act of "disrespect," the risk to respondents who are returned is likely to be greater than it was at the time they left their country. Third, the threat to individuals who have been targeted routinely generalizes to other members of that person's family, both those who remain in their country as well as those who flee and are later forced to return. Each of these points relate directly to the risk of future persecution to respondents, and can be leveraged by attorneys in developing case strategy and when presenting arguments. Gangs' Political Objectives and Strategies Gangs and other criminal organizations throughout Central America seek to establish a socio-political climate favorable to their criminal enterprises by influencing the political process. During decades of civil conflict in Central America politically motivated atrocities were routinely committed in order to terrorize political opponents and the public into submission. As a direct descendant of that strategy, gangs and the organized crime groups and drug cartels they are frequently associated with now blend criminality with tactics generally associated with terrorism and warfare.17 The strategic use of random violence, kidnapping, torture and murder are employed as part of a coordinated effort to terrorize and co-opt police, bureaucrats, prosecutors, judges and elected officials in order to shape a socio-political environment within which they are free to operate with impunity. These actions are intended to demonstrate gangs' and other crime groups' audacity, power, and capacity to render states impotent to effectively limit or control them. Analysts from the U.S. military characterize Central American gangs and organized crime groups as non-state actors engaged in efforts to establish political control and domination through "asymmetrical warfare."18 These analysts correctly point out that crime groups' motives differ from those of traditional insurgents but their objective is the same: to impose their power and undermine the operational capacity and authority of legitimate state actors. In areas of Central America gangs now act as de facto governments; not because they perform civic functions as did some guerilla organizations during the region's civil wars, but because they have undermined states' capacity to fulfill basic functions of governance to the point of making legitimate institutions largely irrelevant. Within this void, gangs and other criminal organizations operate with near impunity, and anyone who interferes with or opposes their efforts to establish political control is subject to acts of intimidation, terror and brutality. Significantly, many actions taken by respondents which resulted in their being targeted by gangs (and the subsequent decision to flee to the U.S.) have been viewed by the courts as expressions of political opinion, or a response to imputed political opinion. Internal Relocation as a Strategy for Return For at least three reasons, government assertions that respondents in these cases can be returned and relocated internally may be unrealistic. First, throughout Central America there exists an informal but extraordinarily efficient communication network which ensures that the arrival of deportees from the U.S. is known soon after, and in many cases before, returning to their home country. This informal "grapevine" represents a direct risk to deportees, as it renders implausible the possibility that they can return without gang members being aware of their presence, thereby setting up a scenario where they are likely to again be targeted. Second, gangs have their own networks and communication structures in place which practically speaking may make it impossible for someone to effectively hide upon return. This is particularly true if respondents' circumstances would necessitate a return to the area where past persecution occurred, or where they had family who had been identified by the pursuing gang(s). The region is characterized by countries which range in size from roughly that of Massachusetts in the case of El Salvador, to West Virginia in the cases of Guatemala and Honduras. Within these relatively small geographical areas are tens of thousands of gang members who are networked in across the region and who have access to the sophisticated communication technologies. I know of numerous cases where respondents have relocated to other areas of their countries as many as three and four times, and in each case they have been located by the gangs and the threats renewed. Finally, while there are rural areas in the region where gangs do not have a strong presence, those areas are characterized by subsistence agriculture and levels of grinding poverty that are so extreme that even those with multi-generational ties to the agrarian lifestyle are forced to migrate to urban areas in search of employment. Given these economic realities, it would be utterly untenable for deportees with no ties to subsistence agricultural communities or the land to relocate to the countryside and survive. Key Points to Remember When Developing Case Strategies The discussion in the above sections provides guidance on ways in which case specific facts may be leveraged in the development of case strategy. Key points to remember:
End Notes1For a comprehensive discussion of the Central American gang phenomenon see: Central American Gangs: An Overview of the Phenomenon in Latin America and the U.S., Journal of Gang Research, 15(1), pp. 35-52. Thomas Boerman, 2007. Central America and Mexico Gang Assessment. U. S. Agency for International Development, 2006. Central American Gang Related Asylum: A Resource Guide. Washington Office on Latin America, 2008. No Place to Hide: Gang, State, and Clandestine Violence in El Salvador. Harvard Law School. 2006. 2No Place to Hide: Gang, State, and Clandestine Violence in El Salvador. Harvard Law School. 2006. Central America and Mexico Gang Assessment. U. S. Agency for International Development, 2006. 3Central American gangs: An Overview of the Phenomenon in Latin America and the U.S. Journal of Gang Research, 15(1), pp. 35-52. Boerman, T. 2007. Central America and Mexico Gang Assessment. U. S. Agency for International Development, 2006. This situation has not changed substantially since high numbers of repatriations began in the 1990s. Regional governments still do not have comprehensive re-entry services available to either administrative or criminal deportees, and while U.S. law now authorizes disclosure of information on criminal deportees, numerous Central American governmental and non-governmental representatives I have interviewed have advised that practices for information sharing are still not standardized and law enforcement officials still rely heavily on their own assessment of deportees' gang status at the time of re-entry. This sets the stage for significant problems with both over and under-identification of gang members, i.e., erroneously identifying deportees as gang affiliated when they are not, and failing to appropriately identify bona fide gang members due to lack of recognition skills. 4Gangs in Central America. Congressional Research Service, Number RS22141. Ribando, C. (2005, May 10). 5North American transnational youth gangs: Breaking the chain of violence. The Heritage Foundation Backgrounder, Number 1834. Johnson, S., & Muhlausen, D.B. March 21, 2005. 6While gangs' influence is clearly destructive and the violence they perpetuate horrific, understanding of their actual contribution to the region's extraordinarily high rates of crime and violence is based largely on speculation, as no empirical analysis has been conducted and little effort has thus far been made to disentangle gangs' contribution to the problem from that of other sources of crime. 7Central American gangs: An Overview of the Phenomenon in Latin America and the U.S. Journal of Gang Research, 15(1), pp. 35-52. Boerman, T. 2007. Gangs and Transnational Criminals Threaten Central American Stability. Lt. Col. Howard L. Gray. 2009. U.S. Army War College, Strategy Research Project. http://www.stormingmedia.us/63/6318/A631894.html No Place to Hide: Gang, State, and Clandestine Violence in El Salvador. Harvard Law School. 2006 8Central America and Mexico Gang Assessment. U. S. Agency for International Development, 2006. ICJ Attacks on Justice - Honduras, 2005 http://www.icj.org/IMG/HONDURAS.pdf 9Central American gangs: An Overview of the Phenomenon in Latin America and the U.S. Journal of Gang Research, 15(1), pp. 35-52. Boerman, T. 2007. Gangs and Transnational Criminals Threaten Central American Stability. Lt. Col. Howard L. Gray. 2009. U.S. Army War College, Strategy Research Project. http://www.stormingmedia.us/63/6318/A631894.html No Place to Hide: Gang, State, and Clandestine Violence in El Salvador. Harvard Law School. 2006. 10The extrajudicial execution of known and suspected gang members has been well documented by governmental and non-governmental human rights groups, national ombudsman, the U.S. State Department, the United Nations, the international media, international development and donor agencies, gang intervention specialists, and the church. No precise figures are available as these executions are conducted by clandestine groups, many with known or suspected official connections. Killings are routinely conducted in a manner reminiscent of the civil war era, when political opponents were abducted, tortured, murdered, and their bodies either left at the scene or dumped in public places as a means of conveying a message through terror. 11Gangs and crime in Latin America. U.S. Subcommittee on the Western Hemisphere, Committee on International Relations, U.S. House of Representatives (2005, April 20). Serial number 109-96. 12Marked for Death: The Maras of Central American and Those Who Flee Their Wrath. Georgetown Immigration Law Journal, 20(407). Jeffrey D. Corsetti. 2006. 13Ibid. No Place to Hide: Gang, State, and Clandestine Violence in El Salvador. Harvard Law School. 2006 14Marked for Death: The Maras of Central American and Those Who Flee Their Wrath. Georgetown Immigration Law Journal, 20(407). Jeffrey D. Corsetti. 2006. 15Ibid. 16The term Gang Mentality is commonly used to describe gang members' way of thinking, interpreting events, and responding to situations. The mentality can be broken down into components but in actuality each component feeds into, and is reinforced, by the others and becomes the foundation for gang culture. Gang mentality consists of the following components: 1) respect, 2) disrespect for rivals, 3) no insult goes unanswered, 4) consequences as a rite of passage, 5) problems handled within the gang, and 6) disregard for the rights of non-members. 17Gangs and Transnational Criminals Threaten Central American Stability. Lt. Col. Howard L. Gray. U.S. Army War College, Strategy Research Project. 2009. http://www.stormingmedia.us/63/6318/A631894.html Street Gangs: The New Urban Insurgency. Max G. Manwaring. Strategic Studies Institute, 2005. 18Ibid.
Thomas Boerman, Ph. D. Dr. Boerman's areas of professional focus include the personal and environmental factors that underlie the initiation, maintenance, and cessation of gang activity; and the development of school, community and institution-based gang prevention, rehabilitation, and social reinsertion programs in the U.S and Latin America. He has a B.A. in International Studies with a focus on Latin America, and has been involved in human rights issues in the region since 1985. Since 2004 he has served as a consultant to numerous international development and donor organizations active in addressing the gang phenomenon in El Salvador, Honduras, Guatemala, Mexico and Panama, and has worked as a trial consultant and expert witness in approximately 45 Central American gang related asylum cases since 2007.
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