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Immigration Law Associates, PC

4th Circuit Grants Review on Asylum Regarding MS-13 and Mara 18

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In a reversal of the Board of Immigration Appeals, the Fourth Circuit Court of Appeals remanded on July 18th, 2014, a case in which an asylum applicant seeks to remain in the United States on the basis of his kinship tie to a member of the Mara 18 street gang in El Salvador.

Wildon Manfredo Aquino Cordova sought withholding of removal from the US based on his kinship tie to a member of Mara 18, a street gang that has a contentious rivalry with the notorious MS-13 street gang. Aquino’s cousin, Jorge Vidal, joined Mara 18 under duress in 2010, and he became a target for MS-13. Despite refusing to join either Mara 18 or MS-13, Aquino faced repeated attacks, threats, and pressures from both MS-13 and Mara 18 members because of his cousin’s associations. To escape this persecution, Aquino fled El Salvador; since his departure, his cousin, Vidal, has since been killed by MS-13 gang members, as has his uncle. Fearing for his life, Aquino entered the US without inspection in July 2010, and he applied for asylum based on his membership in “a particular social group,” i.e., his kinship to a Mara 18 gang member.

The immigration judge and BIA both rejected this classification, finding that evidence of his abuse, his cousin’s death, and country conditions involving MS-13 and Mara 18 concerned “general conditions of upheaval and unrest associated with gang violence.” When defining the particular social group to which Aquino belonged, they classified him as “a person who is from El Salvador who came to the United States, returned to El Salvador and had problems with a gang, and the police did not help.” This analysis neglected to consider the importance of Aquino’s kinship to a gang member, despite established precedent affirming that family ties may form the basis for membership in a “particular social group” as required for a grant of asylum.  The BIA’s justification for denying asylum on this basis concluded that although the deaths of his uncle and cousin are “relevant to his case,” Aquino had not met the burden of showing that MS-13 “uniquely or specially targeted” his family. This logic argued that because his uncle and cousin were not targeted because of kinship ties, therefore Aquino had not been targeted because of kinship ties.

The Fourth Circuit rejected the BIA’s classification, holding that although Aquino’s uncle and cousin were not targeted because of their kinship ties, this did not invalidate Aquino’s own asylum claim based on his kinship ties. The Fourth Circuit remanded the case to the BIA to reconsider whether Aquino’s own kinship ties formed a proper basis for asylum and withholding of removal. The Court noted also that the strength of Aquino’s claim, while drawing support from his kinship with a targeted gang member, was most grounded in the actual and severe abuse he himself suffered, not on that suffered by his family.

This decision creates an interesting precedent for the millions of individuals in Latin America with kinship ties to MS-13, Mara 18, and other criminal gangs. Previous cases extended asylum to those directly involved with or persecuted by criminal gangs, but this case may mark a shift toward extending the same consideration to those who have a familial relationship with someone targeted by gangs. As hundreds of thousands of immigrants flee northward to escape escalating violence and insecurity in Central and South America, this case offers hope to some, at least, that their efforts to receive a grant of asylum may be slightly more tenable than before.

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