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Yesterday the U.S. Court of Appeals for the 4th Circuit issued its decision in Martinez v. Holder, a case that has been discussed at various times on this blog for its relevance in defining the contours of the protected ground of “particular social group.”

Asylum may be granted to an individual who can demonstrate that he or she has suffered persecution or has a well-founded fear of persecution in his or her home country on account of his or her race, religion, nationality, political opinion, or membership in a particular social group.  These five bases for asylum are known as “protected grounds.”  Whereas political opinion, race, religion, and nationality are all fairly intuitive, U.S. law has had to define “particular social group” on a case-by-case basis.

The watershed decision establishing what constitutes a particular social group is a 1985 decision by the Board of Immigration Appeals, Matter of Acosta.  In Acosta, the Board defined a particular social group as a group of individuals who share a certain immutable characteristic that can not be changed or is so fundamental to their identity that they should not be required to change.  In the two decades since Acosta, homosexuals, members of clans, family relationships, women opposed to female genital mutilation, women who refuse to conform to strict religious codes, and women seeking escape from domestic violence have all been recognized as social groups for the purposes of asylum.

In Martinez, the 4th Circuit considered whether a young man who was conscripted into a gang and who subsequently left the gang can obtain protection under U.S. asylum law.  Mr. Martinez was attacked on multiple occasions and was aware that gang leaders had given the “green light” to other gang members that they were free to murder their former compatriot.  In the underlying Board of Immigration Appeals (BIA) decision, the BIA decided that Congress could not have intended gang membership (and therefore former gang membership) to create an opportunity for protection under U.S. law – that Congress could not have intended for criminal gangs to be social groups worthy of protections of U.S. law.  The 4th Circuit was required to decide whether former gang membership is an “immutable” characteristic that warrants such protection.  On January 23, 2014, the court did just that:

We conclude that Martinez’s proposed particular social group of former MS-13 members from El Salvador is immutable for withholding of removal purposes in that the only way that Martinez could change his membership in the group would be to rejoin MS-13. We hold therefore that the BIA erred in its
ruling declining — on immutability grounds — to recognize the particular social group of former members of MS-13 who have renounced their membership in the gang.

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The government argues that the INA disqualifies groups whose members had formerly participated in antisocial or criminal conduct. Attaching this condition to qualification as a “particular social group,” however, is untenable as a matter of statutory interpretation and logic.

This decision has major implications for former gang members seeking asylum in the U.S., and equally major congratulations are due to Maureen Sweeney at the University of Maryland College of Law Immigration Clinic, who argued for Mr. Martinez, and FOBR Ben Casper, who argued for the American Immigration Lawyers Association, which filed a brief supporting Mr. Martinez’s claim to protection, for their excellent work on this case. Our very own Benach also was on brief as amicus, and both and Dree Collopy helped prepare oral argument.  As Maureen Sweeney put it in her racap of oral argument:

…I will say that two of our 3 judges seemed to really get what the case was about. …Judges seemed uninterested in whether initial membership in the gang was voluntary or not – they seemed to get that once the person left, that became the defining characteristic. And they didn’t seem particularly worried about letting in a bunch of bad guys. As Judge Neimeyer said, “That’s what you have all those bars in the statute for.” 

Congratulations to all for your part in securing the protection for former gang members seeking asylum in the U.S.