Washington Law Review Washington Law Review
Volume 91 Number 3
10-1-2016
Kill the Snitch: How Kill the Snitch: How
Henriquez-RivasHenriquez-Rivas
Affects Asylum Eligibility for Affects Asylum Eligibility for
People Who Report Serious Gang Crimes to Law Enforcement People Who Report Serious Gang Crimes to Law Enforcement
James Carr
Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr
Part of the Immigration Law Commons
Recommended Citation Recommended Citation
James Carr, Notes and Comments,
Kill the Snitch: How Henriquez-Rivas Affects Asylum Eligibility for
People Who Report Serious Gang Crimes to Law Enforcement
, 91 Wash. L. Rev. 1313 (2016).
Available at: https://digitalcommons.law.uw.edu/wlr/vol91/iss3/12
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Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law
Digital Commons. For more information, please contact lawref@uw.edu.
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1313
KILL THE SNITCH: HOW HENRIQUEZ-RIVAS AFFECTS
ASYLUM ELIGIBILITY FOR PEOPLE WHO REPORT
SERIOUS GANG CRIMES TO LAW ENFORCEMENT
James Carr
“[El Salvador] is a good place to kill. If you kill, you will get
away with it.”
1
Abstract: In 2015, El Salvador became the murder capital of the world. Like its Central
American neighbors, El Salvador has experienced a significant increase in gang violence
during the past decade, as evidenced by its 2015 homicide statistics showing over 6,600
registered homicides in the country despite a population of only 6.3 million people. Rising
crime rates and widespread gang influence are forcing many affected Central Americans to
seek asylum in the United States.
Individuals may qualify for asylum if they have a well-founded fear of persecution on
account of race, religion, nationality, political opinion, or membership in a particular social
group. Some of the most recent immigration case law explores the definition of membership
in a particular social group. In 2013, the Ninth Circuit’s decision in Henriquez-Rivas created
a new particular social group by extending asylum eligibility to individuals who witness and
testify to serious crimes committed by gangs. Henriquez-Rivas eliminates the requirement for
a particular social group to be visible to the naked eye. According to the Ninth Circuit, if a
proposed particular social group is understood by society to constitute a group, then that
group is “socially distinct” and therefore cognizable.
This Comment argues that the particular social group created by Henriquez-Rivas should
be expanded to include people who report serious gang crimes to law enforcement without
the need to testify in court.
INTRODUCTION
In 1998, twelve-year-old Rocio Brenda Henriquez-Rivas’ father was
brutally assaulted and murdered in El Salvador by four M-18 gang
members.
2
Henriquez-Rivas observed the men assault her father and
heard the gunshots that killed him as she fled the scene.
3
She identified
two of the suspects from a lineup and testified against them in court.
4
1. Jared Goyette, Óscar Martínez on Why El Salvador Is a ‘Good Place to Kill,’, PUB. RADIO
INT’L (Apr. 20, 2016, 12:15 PM), http://www.pri.org/stories/2016-04-20/scar-mart-nez-why-el-
salvador-good-place-kill [https://perma.cc/3RYA-5U4P] (containing comments made by
investigative journalist Óscar Martínez).
2. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1085 (9th Cir. 2013).
3. Id.
4. Id. at 1086.
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1314 WASHINGTON LAW REVIEW [Vol. 91:1313
Both men were convicted and sentenced to prison terms of seven years
and twenty-five to thirty years, respectively.
5
When Henriquez-Rivas
returned to her father’s home to collect some paperwork, an individual
warned her that gang members recently visited her house and claimed
responsibility for killing her father.
6
A few years later, an unknown man
visited Henriquez-Rivas’ school and asked if anyone knew “Rocio
Henriquez.”
7
Henriquez-Rivas feared the gang intended to harm her
because she testified in court and because the gang was ordered to pay
restitution to Henriquez-Rivas’ family.
8
In 2005, she fled to the United
States and applied for asylum.
9
Now assume that shortly after Henriquez-Rivas filed her asylum
application, another individual from El Salvador, Jaime,
10
also applied
for asylum. Imagine the facts in Jaime’s case are strikingly similar to
those of Henriquez-Rivas. Jaime witnessed his father’s assault at the
hands of M-18 gang members and escaped before anyone could harm
him. As Jaime fled the scene, he heard the gunshots that killed his father.
Jaime reported the crime to the local police and provided them with
physical descriptions of each of the gang members involved in the
assault and murder. However, unlike Henriquez-Rivas, Jaime refused to
testify in court against the gang members because he feared the gang
would exact revenge on him for his testimony. Given the level of
corruption within the police department, Jaime also suspected law
enforcement had already betrayed his trust by identifying him to the M-
18. One week before trial, Jaime received a series of anonymous phone
calls threatening his life. He promptly left El Salvador and sought
asylum in the United States.
The Immigration and Nationality Act of 1965 (INA) establishes the
framework for determining whether refugees such as Henriquez-Rivas
and Jaime should be granted asylum and a permanent home in the
United States.
11
According to the INA’s definition, a “refugee” is
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Jaime’s hypothetical scenario is a reality for many Central American immigrants fleeing gang
violence. See Part III.A for examples of recent police corruption and gang influence in El Salvador.
11. See U.S. CITIZENSHIP & IMMIGRATION SERVS., ASYLUM OFFICER BASIC TRAINING, ASYLUM
ELIGIBILITY PART III: NEXUS AND THE FIVE PROTECTED CHARACTERISTICS 5 (2009),
https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asyl
um/AOBTC%20Lesson%20Plans/Nexus-the-Five-Protected-Characteristics-31aug10.pdf
[https://perma.cc/EYQ5-KDV6] [hereinafter U.S. CITIZENSHIP & IMMIGRATION SERVS. PART III].
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2016] KILL THE SNITCH 1315
someone who is (1) unable or unwilling to return to his or her home
country (2) because of either past persecution or a well-founded fear of
persecution (3) on account of race, religion, nationality, political
opinion, or membership in a particular social group.
12
Of these five
protected interests, the term “particular social group” (PSG) is the most
ambiguous.
13
The Board of Immigration Appeals (BIA) first confronted this
ambiguity with its oft-cited PSG analysis in In re Acosta.
14
After nearly
thirty years of attempts to refine its definition, certain elements of PSGs
remain a divisive issue among the circuit courts.
15
While some circuits
accept the BIA’s PSG analysis, others have either completely abandoned
it or modified the analysis to maintain consistency with the BIA’s
decisions made after In re Acosta.
16
In 2013, the Ninth Circuit decided Henriquez-Rivas v. Holder
17
and
recognized Henriquez-Rivas’ membership in a PSG while rejecting the
BIA’s interpretation of PSG requirements.
18
In overruling the BIA, the
Ninth Circuit determined that Henriquez-Rivas had a well-founded fear
12. 8 U.S.C. § 1101(a)(42)(A) (2012) (“The term ‘refugee’ means . . . any person who is outside
any country of such person’s nationality or, in the case of a person having no nationality, is outside
any country in which such person last habitually resided, and who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of the protection of, that country 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 . . . .”).
13. Donchev v. Mukasey, 553 F.3d 1206, 1215 (9th Cir. 2009) (citing Elien v. Ashcroft, 364 F.3d
392, 396 (1st Cir. 2004); Lwin v. INS, 144 F.3d 505, 510 (7th Cir. 1998)).
14. 19 I. & N. Dec. 211 (B.I.A. 1985). The BIA’s decision in In re Acosta held that the common
characteristic that defines a PSG “must be one that the members of the group either cannot change,
or should not be required to change because it is fundamental to their individual identities or
consciences.” Id. at 233.
15. The circuits are divided on the “social visibility” requirement of the particular social group
definition set forth by the BIA in In re C-A-, 23 I. & N. Dec. 951, 959–60 (B.I.A. 2006) and later
clarified by the BIA in In re S-E-G-, 24 I. & N. Dec. 579, 586–89 (B.I.A. 2008). The Third and
Seventh Circuits expressly reject social visibility. See Valdiviezo-Galdamez v. Attorney Gen., 663
F.3d 582, 607 (3d Cir. 2011); Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir. 2009). The
Fourth Circuit has declined to even address social visibility. See Martinez v. Holder, 740 F.3d 902,
910 (4th Cir. 2014). The First (Rojas-Perez v. Holder, 699 F.3d 74 (1st Cir. 2012)), Second (Ucelo-
Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007)), Fifth (Orellana-Monson v. Holder, 685 F.3d 511,
520 (5th Cir. 2012)), Sixth (Al-Ghorbani v. Holder, 585 F.3d 980, 991, 994 (6th Cir. 2009)), Eighth
(Davila-Mejia v. Mukasey, 531 F.3d 624, 629 (8th Cir. 2008)), Ninth (Rojas v. Lynch, 807 F.3d
1123 (9th Cir. 2015)), Tenth (Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015)), and
Eleventh (Castillo-Arias v. U.S. Attorney Gen., 446 F.3d 1190, 1197 (11th Cir. 2006)) Circuits all
accept variations of the BIA’s “social visibility” requirement from In re C-A-.
16. See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087–88 (9th Cir. 2013); Valdiviezo-
Galdamez, 663 F.3d at 605–08; Gatimi v. Holder, 578 F.3d 611, 615–16 (7th Cir. 2009).
17. 707 F.3d 1081 (9th Cir. 2013).
18. Id. at 1083.
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1316 WASHINGTON LAW REVIEW [Vol. 91:1313
of persecution because of her membership in a newly recognized PSG:
“witnesses who testify against gang members.”
19
The Ninth Circuit’s
decision confirmed that a PSG exists in the absence of “on-sight”
visibility if the member’s identity has come to the attention of gang
members.
20
Although the decision did not address asylum eligibility for
people in Jaime’s position—Salvadoran witnesses who report serious
gang crimes to law enforcement—the court’s PSG analysis supports
expanding eligibility to witnesses who do not testify.
21
This Comment addresses the lack of relief available to individuals
like Jaime. Part I provides a brief history of asylum law and analyzes the
evolution of PSGs. Part II identifies the effects of the Ninth Circuit’s
Henriquez-Rivas decision on PSGs and how different circuits have either
accepted or rejected that view. Part III explores the possibility of
expanding the PSG created under Henriquez-Rivas to include applicants
who report gang crimes without testifying in court, such as Jaime. This
Comment argues that individuals from certain countries who report
serious gang crimes to law enforcement should be eligible for asylum
because they are considered members of a PSG by their respective
societies.
22
I. EVOLUTION OF THE PARTICULAR SOCIAL GROUP
CRITERIA
As violence and murder rates steadily rise throughout the Northern
Triangle—an area consisting of El Salvador,
23
Guatemala,
24
and
Honduras
25
—there has been a marked increase in the number of people
fleeing the area and seeking asylum abroad.
26
The United States
19. Id.
20. Id. at 1088 (citing In re C-A-, 23 I. & N. Dec. at 960).
21. See infra note 192; see id. at 1091–94 for a discussion of “social distinction” and how it
applies to the PSG analysis.
22. Part III focuses almost exclusively on El Salvador and the impact of gangs on Salvadoran
society. However, this Comment does not limit the scope of its argument to El Salvador. The same
arguments, as well as relevant country conditions evidence, may be applied to countries with similar
levels of gang influence, such as Guatemala and Honduras.
23. El Salvador experienced 103 homicides per 100,000 people in 2015. David Gagne, InSight
Crime’s 2015 Latin America Homicide Round-up, INSIGHT CRIME (Jan. 14, 2016),
http://www.insightcrime.org/news-analysis/insight-crime-homicide-round-up-2015-latin-america-
caribbean [https://perma.cc/778D-Z33U].
24. Id. (Guatemala experienced 29.5 homicides per 100,000 people in 2015).
25. Id. (Honduras experienced 56.7 homicides per 100,000 people in 2015).
26. Children on the Run, UNITED NATIONS HIGH COMM’R FOR REFUGEES,
http://www.unhcr.org/en-us/children-on-the-run.html [https://perma.cc/L27E-UK96].