Growing Violence In Central America Challenges Traditional Views On Who Qualifies For Asylum

Yesterday, the 9th U.S. Circuit Court of Appeals instructed immigration officials to consider recognizing young Guatemalan women as a “particular social group” for asylum purposes. Under the Immigration and Nationality Act (INA) an individual qualifies for asylum only if that person meets the legal definition of a refugee. Traditionally, asylum petitions from Latin Americans have been dismissed outright as “fraudulent or frivolous.” Refugees are often viewed as people “fleeing oppressive political regimes or have been members of religious or ethnic minorities facing persecution.” However, as violence soars in Mexico and parts of Central America, judges are faced with a growing need to take asylum claims from Latin America much more seriously than they did before.

An immigration judge initially denied Guatemalan immigrant Yajayra Perdomo asylum, arguing that women between the ages of 14 and 40 should not be recognized as a “particular social group.” The Board of Immigration Appeals agreed. However, the 9th Circuit repealed the decision, calling the board’s ruling “inconsistent with its own precedent and this court’s case law.” “[W]e clearly acknowledged that women in a particular country, regardless of ethnicity or clan membership, could form a particular social group,” Judge Richard Paez wrote. The 9th Circuit left it up to the Board to issue a decision whether Perdomo qualifies for asylum.

The court also ruled that fear of “femicide” constitutes a valid asylum claim. Since the year 2000, more than 3,800 women and girls (mostly from ages 13 to 36) have been murdered in Guatemala. The Hastings College of Law has noted in the past that “Guatemala’s legal system is rife with provisions that minimize the seriousness of violence against women.” Amnesty International writes that “investigations into crimes against women, including transgender women, are often inadequate and obstructed by investigating police who act with a gender bias.”

Watch a report by Al Jazeera on femicide in Guatemala:

While females are often killed “simply because of their gender,” violence cuts across gender lines in Guatemala and other neighboring countries. The United Nations Development Program found that “Central America is the most violent region of the world, with the exception of those regions where some countries are at war or are experiencing severe political violence.” More than 5,600 murders were registered in Guatemala in 2009. Ninety-eight percent of those murders went unpunished. El Salvador ended 2009 with a “historic number” of 4,365 homicides. Honduras is said to have the highest murder rate: 66.8 for every 100,000 inhabitants. Mexico, which is significantly larger and more populous than three other Central American countries has a homicide rate of 12 per 100,000.

In August 2009, A DHS spokesman told the Wall Street Journal that the government is “developing regulations to better define grounds for asylum.” In 2009, the government reopened the monumental case of a Salvadoran family who argue that the Court should consider resistance to joining gangs as grounds for asylum. However, not everyone is so lucky. Last month, the New York Times reported that Benito Zaldívar, a Salvadoran immigrant who was deported back to El Salvador after a court denied his asylum petition was shot in the face as “revenge” for speaking against the gang. “I’ve done about a hundred cases of Salvadoran males who refused to join gangs,” said Roy Petty, Zaldívar’s lawyer. “I have to tell them you are probably going to lose. The immigration system did not believe these people were really in danger.”

In Washington, there’s little appetite amongst politicians to deal with the “illogical” and “perverse” legal hurdles of the U.S. asylum system. In March, Senator Patrick J. Leahy (D-VT) boldly sponsored the Refugee Protection Act which “addresses shortfalls in current law that place unnecessary and harmful barriers before refugees with legitimate asylum claims.” The bill is currently stalled in Congress.