A New Approach: Gang-Based Asylum in the Age of "Zero Tolerance"
![handle is hein.journals/huribri23 and id is 70 raw text is: SPECIAL COVERAGE: GLOBAL
A New Approach: Gang-based Asylum in
the Age of Zero Tolerance
by Caylee Watson
A record number of migrants are fleeing the Northern
Triangle. In recent years, about 265,000 migrants have
left annually. This number is on track to more than
double in 2019.[1] Gang violence, corruption, and a
lack of economic opportunity and security challenge
Guatemala, El Salvador, and Honduras. [2] Homicide
rates in the Northern Triangle have been among the
world's highest for decades. [3] It is no secret that the
U.S. foreign policy in the 1970s through the 1990s
laid the foundation for much of the instability in the
region. Over the past twenty years, the U.S. has at-
tempted, with limited effect, to remedy the situation
by aiding programs that try to combat the underlying
issues causing some of the instability.
During the 2016 presidential campaign, Donald
Trump promised to reduce illegal immigration. [4]
When he became president, in addition to developing
a scheme to build a wall on the Mexican northern-U.S.
southern border, President Trump enacted zero-tol-
erance policies that led to family separation. [5] Since
Trump took office three years ago, not only has the
United States seen an influx in irregular entries at the
southern border, but the zero-tolerance policies may
even violate domestic and international law. [6]
For example, in the spring of 2018, the Trump Admin-
istration (Administration) implemented a zero-tol-
erance policy which sought to criminally prosecute all
adults entering the United States irregularly, including
asylum seekers, and those traveling with children.
[7] Simultaneously, the Administration cut hundreds
of millions of dollars in aid to the Northern Triangle
because the countries failed to slow migration flows
to the United States.[8] These policies contradict each
other - experts agree that cutting off assistance aimed
to help programs improve safety and economic secu-
rity in the region was only going to cause migration
to increase. [9] In fact, the policies have failed to slow
the number of migrants and have led to overcrowded
detention centers and a massive backlog in U.S. immi-
gration courts.
One aspect of immigration policy that the Admin-
istration cannot override through proclamation or
executive order is asylum law. Under the Refugee
Convention and Protocol, the U.S. cannot deny entry
to asylum seekers.[10] Domestically, an asylum ap-
plicant meets the definition of a refugee under INA
§ 101(a)(42) if the person seeking asylum is unable
or unwilling to return to ... [his or her] country [of
origin] because of persecution or a well- founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.[11]
However, in the past year, alongside the above-men-
tioned executive orders, the Attorney General (AG)
has decided a number of cases that impede tradition-
al Asylum law. [12] In Matter of A-B- and Matter of
L-E-A-, the AG attempted to limit the scope of the
frequently utilized protected ground, particular social
group by asylum applicants fleeing gang violence in
the Northern Triangle. [13] Prior to Matter of L-E-A-
and Matter of A-B-, an applicant could demonstrate
that they were persecuted as a member of a particular
social group if they could show that they were perse-
cuted because of gender-based domestic violence or
because of their familiar ties. Now, in circuit courts
that lack overriding precedent, both Attorney General
Sessions' and Barr's interpretations present problems
for applicants. This article suggests a supplementary
approach-(imputed) political opinion-for attorneys
representing asylum applicants fleeing gang-based
persecution.
For an applicant to establish their eligibility for asylum
on account of political opinion, the applicant must
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A New Approach: Gang-Based Asylum in the Age of "Zero Tolerance"
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