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A SPECIAL SECTION:  Haiti since the January 12, 2010 Earthquake
                                                         
Posted July 1, 2010
                                       
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Losing Asylum, Then His Life
 
asylum 2

STEVE HEBERT FOR THE NEW YORK TIMES
Carlos Zalivํdar was able to witness his son's burial only by a video mailed to him.
 

By JULIA PRESTON
 
One man is dead, shot in the mouth in El Salvador, presumably for speaking ill of a gang. Another man lives in hiding in the Salvadoran countryside, hoping his former gang will not mete out a similar punishment to him.

Both men had once fled to the United States, where they sought asylum, saying they faced mortal threats from street gangs in El Salvador. In recent years the immigration courts have seen a surge of thousands of such gang-related claims from Central Americans. They have rarely been granted.

But the cases of these two Salvadorans, Benito Zaldํvar, who was killed, and Nelson Benํtez Ramos, have added new credibility to those claims. They have increased the pressure on the courts and the Obama administration to clarify asylum law so foreigners facing life-threatening dangers from gangs would have a chance at refuge in this country.

Immigration judges have rejected asylum for people running from Central American gangs on the grounds that the threats were vague and that the petitioners' lives did not appear to be truly at risk.

In Mr. Zaldํvar's case, the Board of Immigration Appeals found that he had failed to show that the gang he feared, Mara-18, was specifically coming after him. Mr. Zaldํvar "indicated that the gang members threatened to hurt his family if he did not join," the judges wrote, "but neither the respondent nor anyone in his family has ever been harmed."

Mr. Zaldํvar was deported to El Salvador in December after his asylum petition failed. His murder just two months later was the proof he foretold that his fears of the gang were not exaggerated.

"I've done about a hundred cases of Salvadoran males who refused to join gangs," said Roy Petty, an immigration lawyer in Missouri who represented Mr. Zaldํvar. "I have to tell them you are probably going to lose. The immigration system did not believe these people were really in danger."

As a boy, Mr. Zaldํvar said in an immigration court statement, he was left with grandparents in La Libertad, a town on the coast of El Salvador, when his parents came in 1994 to work in the United States. Mr. Zaldํvar said the Mara-18 gang had started trying to recruit him when he was not yet a teenager.

The gang was more forceful with him than with his friends, Mr. Zaldํvar declared in the statement. "I think it was because the gang members knew I didn't have a big family to take care of me," he said.

Then his grandmother died. In 2003, when he was 15, Mr. Zaldํvar decided he could no longer safely resist the gang, and he fled El Salvador to join his parents, legal immigrants living in Carthage, Mo.

Their temporary immigration status did not allow them to bring their son through legal channels, and Mr. Zaldํvar was caught by border agents when he crossed into the United States illegally. He applied for asylum, saying that if he returned to El Salvador, the Mara-18 would exact revenge for his refusal to join.

As the case proceeded, he was permitted to rejoin his parents. "I'm going to high school in Carthage," he informed the court at one point, "and I feel safe for the first time in my life."

On Feb. 28, eight weeks after he was deported, a white van pulled alongside Mr. Zaldํvar as he rode his bicycle through La Libertad. According to sworn statements in court documents, several witnesses saw a Mara-18 gunman shoot him in the face, which they understood as revenge for speaking against the gang.

Mr. Zaldํvar's father, Carlos, said in an interview that entreaties from a daughter still living in El Salvador had persuaded him not to return for his son's funeral. "It left me with an empty place," Carlos Zaldํญvar said in anguish. "But she said the gangs could blow me away, too."

In general, legal standards for asylum in the United States are not easy to meet. Asylum seekers must show they have a "well-founded fear of persecution" because of their race, religion, nationality, political opinion or "œmembership in a particular social group." In 2009, a total of 9,614 foreigners were granted asylum, according to official figures. Guatemala, the Central American country with the highest number of successful petitions, had 265 grants. As the immigration debate becomes increasingly polarized, there is little interest among politicians or the public in seeing the asylum numbers increase.

While the civil wars of Central America subsided by the 1990s, the number of people seeking refuge from criminal gangs there has soared in the last decade as the maras, as they are known in Spanish, have extended their violent networks across the region. In many cities the gangs have become more powerful than the police.

To put it bluntly, 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,โ€ the United Nations Development Program concluded in a report in October that studied homicide rates across the globe. The bloodshed in Central American came primarily from criminal gangs.

At the same time, American immigration judges, always careful not to open the asylum door to any flood, have made it more difficult for Central Americans running from gangs. In a landmark ruling in 2008, the Board of Immigration Appeals denied a petition by three Salvadoran teenagers who fled recruitment by a gang called the MS-13, saying they had not shown that they were in more peril than Salvadorans in general.

"Gang violence and crime in El Salvador appear to be widespread, and the risk of harm is not limited to young males who have resisted recruitment," the board found.

The judges created several legal hurdles for asylum seekers fleeing gangs, requiring them to prove that they are part of a "particular social group" that is widely recognized in their home society as being under attack, something like a persecuted ethnic minority.

"The law has been kind of ripped apart," said Deborah Anker, a law professor and director of the Immigration and Refugee Clinical Program at Harvard. "Requirements have been imposed that make no sense in terms of prior jurisprudence and are impossible to interpret."

Some federal appeals courts have taken the same view. Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, has repeatedly rejected the new standards as "illogical" and "perverse."

In March, Attorney General Eric H. Holder Jr. formally declined to step in to clarify the administration's position. Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Judiciary Committee, offered a refugee bill in March that would erase the recent court decisions and return to a less complicated standard that some people escaping gangs could hope to meet. But the bill is not advancing, with Congress focused on other issues.

So Mr. Benํtez waits in El Salvador, after being deported last year. Recruited by the MS-18 gang when he was 14, Mr. Benํtez quit after nine years when he became an evangelical Christian, and he fled to join other Christian relatives in the United States.

In December, the Seventh Circuit, in a decision written by Judge Posner, rejected the immigration court's finding that Mr. Benํtez's fears did not meet the asylum test and granted his request.

But he remains in El Salvador, while his lawyer, Mr. Petty, negotiates with immigration authorities to allow him to come back to the United States.

With an indigo MS-13 tattoo etched on his forehead, he is literally a marked man. In a telephone interview last week, he said he was staying with relatives, skipping from house to house, rarely venturing outside.

"There are gangs everywhere here," Mr. Benํtez said. "When you leave the gangs, even your best friend will murder you."
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This article has been revised to reflect the following correction: Correction: June 29, 2010 An earlier version of this article included a reference to the annual limit of 80,000 on the number of refugees admitted from abroad to the United States. Foreigners seeking asylum, which is granted to people who are already in this country, are not included in the refugee limit.

Copyright 2010 The New York Times Company.  Reprinted from The New York Times, International, of Monday, June 28, 2010.
                                                            
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