Publication Date



Should immigrants fleeing gang violence be entitled to
refuge in the United States? Today, the response of most
U.S. courts is "no." The principal means by which an
individual fleeing his home country seeks safety in the
United States is by qualifying for asylum or withholding
of removal. Notwithstanding some critical distinctions
between asylum and withholding of removal, each
protection requires a claimant to demonstrate his fear of

persecution is on account of race, religion, nationality,
membership in a particular social group or political
opinion. Yet rather than evaluating gang-based claims
upon existing refugee standards, the courts are
manipulating the refugee criterion of "membership in a
particular social group" through heightened tests of
"particularity," "social visibility," and administrative
exclusion. In so doing, virtually all permutations of gang-
based claims are being denied. Those refused protection
include not only active gang members but former gang
members, perceived gang members, gang resisters, and the
families of such groups.
Membership in a particular social group does not
possess the almost intuitive definition like those enjoyed by
race, religion, nationality, and political opinion. Yet, each
of the five factors is intended to be fairly and evenly
treated. After reviewing the ill-conceived and ill-applied
nature of the three developments within particular social
group analysis, this Essay argues for a return to
consistency without the danger of a gang insurgency.