The UN
Refugee Agency

GUIDANCE NOTE ON REFUGEE CLAIMS
RELATING TO VICTIMS OF ORGANIZED
GANGS

United Nations High Commissioner for Refugees (UNHCR)
Division of International Protection
Geneva
March 2010

The Office of the United Nations High Commissioner for Refugees (UNHCR) issues
Guidance Notes on thematic legal issues pursuant to its mandate, as contained in the Statute of
the Office of the United Nations High Commissioner for Refugees, and subsequent General
Assembly resolutions in conjunction with Article 35 of the 1951 Convention relating to the
Status of Refugees and Article II of its 1967 Protocol. Guidance Notes seek to provide
guidance in the particular thematic area concerned, by analysing international legal standards,
jurisprudence and other relevant documents.
Guidance Notes are in the public domain and are available on Refworld,
http://www.refworld.org. Any questions relating to specific aspects of this Note may be
addressed to the General Legal Advice Unit of the Division of International Protection (DIP),
UNHCR, Geneva, e-mail HQPR02@UNHCR.ORG.

TABLE OF CONTENTS

I.

INTRODUCTION................................................................................................1

II. OVERVIEW OF GANGS AND THEIR PRACTICES ...................................1
III. TYPOLOGY OF VICTIMS OF ORGANIZED GANGS ................................4
a) Resistance to gang activity .................................................................................................. 4
b) Former and current gang members ................................................................................... 5
c) Victims and critics of State’s anti-gang policies and activities ......................................... 5
d) Family members................................................................................................................... 6

IV. LEGAL ANALYSIS ............................................................................................6
a) Well-founded fear of persecution ....................................................................................... 7
b) Agents of persecution .......................................................................................................... 8
c) Link to a Convention ground ............................................................................................ 10
d) Convention grounds........................................................................................................... 10
(i) Religion........................................................................................................................... 11
(ii) Race and nationality...................................................................................................... 11
(iii) “Membership of a Particular Social Group”............................................................... 12
(iv) Political opinion............................................................................................................ 16
e) Internal flight alternative .................................................................................................. 18
f) Exclusion ............................................................................................................................. 19
(i) Excludable acts in the context of asylum claims relating to gangs................................. 19
(ii) Individual responsibility ................................................................................................ 20

V.

CONCLUSION ..................................................................................................20

I.

INTRODUCTION

1. Gang violence is a feature of everyday life in some countries of the world. Entire
communities may be dominated by gangs and gang culture. The violence affects
men, women and children alike. Many victims are young people who are targeted
by gangs for recruitment and to carry out crime. This Note provides guidance on
the assessment of asylum claims caused by, or associated with, organized gangs. It
presents a brief overview of these gangs and their activities as well as a typology
of victims of gang-related violence. 1
2. As organized gangs have become increasingly common in various parts of the
world, asylum claims connected with their activities have multiplied in regions as
far apart as Europe and Central America. During recent years, an increasing
number of claims have been made especially in Canada, Mexico, and the United
States of America, notably by young people from Central America who fear
persecution at the hands of violent gangs in their countries of origin. 2 Most of the
examples and jurisprudence relied on in this Note illustrating the risks and legal
issues involved therefore refer to this particular region. The Note may also be of
relevance for similar types of claims arising in other regions.
3. The main question addressed in this Note is whether victims of criminal gangs or
activities associated with those groups may be considered in need of international
protection under the 1951 Convention relating to the Status of Refugees and its
1967 Protocol and, if so, under what circumstances.

II.

OVERVIEW OF GANGS AND THEIR PRACTICES

4. Although there is no universally recognized definition of a “gang”, the term is
commonly used to denote a group of two or more members which carries out
criminal activities as its primary or secondary objective. 3 For the purpose of this
Note, the term “gang” refers to the relatively durable, predominantly street-based
groups of young people for whom crime and violence is integral to the group’s
identity. The term is also used to refer to organized criminal groups of individuals
for whom involvement in crime is for personal gain (financial or otherwise) and
their primary “occupation.” The notion of “organized gangs” may also include
vigilante type groups involved in criminal activities. 4 Members of gangs typically
1

2

3

4

For further information about gangs, see the background research for this Note: UNHCR, Living in
a World of Violence: An Introduction to The Gang Phenomenon (publication forthcoming).
For further information, see Washington Office on Latin America, “Central American GangRelated
Asylum:
A
Resource
Guide”,
May
2008,
http://www.wola.org/media/Gangs/WOLA_Gang_Asylum_Guide.pdf (hereafter “WOLA, A
Resource Guide”); Capital Area Immigrants’ Rights, “Seeking asylum from Gang-Based Violence
in Central America: A Resource Manual”, Aug. 2007.
The U.S. Federal Bureau of Investigation, for instance, defines a gang as “a criminal enterprise
having an organizational structure, acting as a continuing criminal conspiracy, which employs
violence and any other criminal activity to sustain the enterprise.” See also Deborah L. Weisel,
“Contemporary Gangs: An Organizational Analysis,” LFB Scholarly Publishing LLC, 2002, pp.
34–36.
See “State failure and extra-legal justice: vigilante groups, civil militias and the rule of law in West
Africa”: New Issues in Refugee Research, Research Paper No. 166, UNHCR Policy Development
and
Evaluation
Service,
http://www.unhcr.org/cgibin/texis/vtx/search?page=search&docid=48f351722&query=State%20failure%20and%20extra-

1

share common social, cultural and psychological characteristics. Their members
may be from marginalized segments of society, 5 the same socio-economic class or
within a certain age range.6 Gangs may also be organized along ethnic, political or
religious lines. 7
5. Certain behavioural characteristics can be used to identify gangs. They may be
defined by qualities of exclusivity, as only certain individuals are recognized and
permitted access. In addition, as part of crafting their identity and defining
themselves, gangs and their members engage in rivalries with other gangs. There
are also expectations of loyalty and consequences for perceived violations of those
expectations within gangs. Typically, membership in a gang has been displayed by
common attire, adherence to a certain dress code, hairstyle, jewellery and/or body
tattoos and other identifying marks on the body. More recently, however, many
gangs have moved away from these traditional identifiers in order to remain more
clandestine in their activities.
6. The individual organization and culture of gangs vary considerably, however.
Members of a gang tend to share a common mentality which defines the way in
which they perceive and respond to events. Central to this mentality is the notion
of respect and responses to perceived acts of disrespect. Because respect and
reputation play such an important role in gang culture, members and entire gangs
go to great lengths to establish and defend both. Refusals to succumb to a gang’s
demands and/or any actions that challenge or thwart the gang are perceived as acts
of disrespect, and thus often trigger a violent and/or punitive response.
Significantly, once an individual or family has been targeted for retaliation, the
gravity of the threat does not diminish over time.
7. Some gangs, such as the Maras, 8 rely heavily on forced recruitment to expand and
maintain their membership. They typically recruit young people who are poor,
homeless and from marginalized segments of society or particular neighborhoods.
Initiation rituals are characterized by violent and abhorrent acts, requiring recruits
to endure physical and sexual violence as well as to commit serious crimes,

5

6

7

8

legal%20justice:%20vigilante%20groups,%20civil%20militias%20and%20the%20rule%20of%20l
aw%20in%20West%20Africa.
See, for instance, about the Yakuza in Japan, Kristof, N. D., “Japan’s Invisible Minority: Better off
Than in Past, but Still Outcasts”, New York Times, 30 Nov. 1995.
The Committee on Economic, Social and Cultural Rights, in its Concluding Observations on El
Salvador, E/C.12/SLV/CO/2, 27 June 2007, http://www.unhcr.org/refworld/docid/46b9d7532.html,
expressed concerns that the Maras are “composed mainly of socially and economically
marginalized young men”.
For further information about different types of gangs, see, for instance, Immigration and Refugee
Board of Canada, Kenya: The Mungiki sect; leadership, membership and recruitment,
organizational structure, activities and state protection available to its victims (2006–October
2007), 1 Nov. 2007, http://www.unhcr.org/refworld/docid/4784def81e.html; Immigration and
Refugee Board of Canada, Croatia: Treatment of Muslims and Muslims of mixed descent by
skinheads, nationalist and racist groups; availability and accessibility of state protection for
Muslims (1995-2004), 18 May 2004, http://www.unhcr.org/refworld/docid/41501c160.html; U.S.
Bureau of Citizenship and Immigration Services, Jamaica: Jamaican Posses, 22 Sep. 1999,
http://www.unhcr.org/refworld/docid/3ae6a6a10.html; Anderson, A., “The Red Mafia: A Legacy of
Communism”, ‘Economic Transition in Eastern Europe and Russia: Realities of Reform’”, ed.
Lazear, P. Edward, Stanford California, The Hoover Institution Press, 1995.
The Mara Salvatrucha or MS-13 gang and the Mara 18 or M-18 gang, hereinafter collectively
referred to as “the Maras”, are the most notorious of the Central American gangs.

2

including murder. 9 Membership of a gang is usually seen as a life-long
commitment. Thus, any desertion carries heavy consequences; gangs tend to
punish defectors severely, including through intimidation, death threats and/or
physical revenge (which sometimes extends to family members). 10
8. As indicated above, a key function of gangs is criminal activity. Extortion,
robbery, murder, prostitution, kidnapping, smuggling and trafficking in people,
drugs and arms are common practices employed by gangs to raise funds and to
maintain control over their respective territories. Some gangs, such as the Maras,
have become increasingly violent with a sharper focus on criminal activities in
order to increase their economic profit. 11
9. Gang members may in some countries also unite in conflict against law
enforcement agents. 12 Some States in Central America have, as a response,
adopted the so-called “mano dura” (“strong hand”) approach to the gang
phenomenon. 13 Responses have, inter alia, included “social cleansing” practices,
such as extrajudicial killings, police violence, arbitrary or unlawful arrests and
detention 14 as well as inhumane prison conditions. 15 Such measures appear to be
directed against gang members and those suspected of being gang members, and
they are often supported or condoned by the State. As noted by the UN Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions:
The evidence shows that social cleansing is more than the actions of a
few rogue officers. This does not mean that it has risen to the level of
officially sanctioned policy, but the frequency and regularity of social
cleansing does indicate that it presents an issue of institutional
responsibility. 16
9

10

11

12
13

14

15
16

Report of the International Human Rights Clinic, No place to hide: Gang, State and Clandestine
Violence in El Salvador, Human Rights Programme, Harvard Law School, Feb. 2007 (hereinafter
“IHRC,
No
place
to
hide”),
http://www.law.harvard.edu/programmes/hrp/documents/NoPlacetoHide.pdf, pp. 31–32.
Desertion is perceived to undermine the internal discipline of the gang as well as to impact the
gang’s ability to dominate its territory and carry out its activities, ibid, pp. 33–34.
See, for instance, Writenet, Central America (Guatemala, El Salvador, Honduras, Nicaragua):
Patterns of Human Rights Violations, Aug. 2008 (hereinafter “Writenet, Report on Central
America”), http://www.unhcr.org/refworld/docid/48ad1eb72.html; IHRC, No place to hide, above
fn. 9; USAID, Central America and Mexico Gang Assessment, Bureau for Latin American and
Caribbean Affairs Office of Regional Sustainable Development, Apr. 2006,
http://www.usaid.gov/locations/latin_america_caribbean/democracy/gangs_assessment.pdf.
WOLA, A Resource Guide, above fn. 2, p. 5.
In the views of some observers, these “zero tolerance” responses have been ineffective in
addressing gang-related crime and raise additional human rights concerns. See Writenet, Report on
Central America, above fn. 11, pp. 25–26, 37; IHRC, No place to hide, above fn. 9 pp. 44–45.
The Committee on the Rights of the Child expressed concerns in its Concluding observations on
Honduras,
CRC/C/HND/CO/3,
3
May
2007,
http://www.unhcr.org/refworld/docid/478c93e72.html, that “many children are arrested and
detained on the mere allegation that they may belong to a mara because of their appearance, e.g.
due to the way of dressing or to the presence of a tattoo or a symbol”, and recommended that the
State party “ensure that persons below 18 are not deprived of their liberty unlawfully or arbitrarily,
in particular as a consequence of the application of anti-maras measures”.
See, for instance, Writenet, Report on Central America, above fn. 11.
Human Rights Council, Addendum to the Report of the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions, Mission to Guatemala (21-25 August 2006), 19 Feb.
2007, A/HRC/4/20/Add.2, http://www.unhcr.org/refworld/docid/461f844d2.html , para. 21.

3

III.

TYPOLOGY OF VICTIMS OF ORGANIZED GANGS

10. Gang-related violence may be widespread and affect large segments of society, in
particular where the rule of law is weak. Ordinary people may be exposed to gangviolence simply because of being residents of areas controlled by gangs.
Individuals, local businesses, buses and taxis may be subjected to demands for
“renta” and threats of violence if refusing to comply with these demands. 17
11. Certain social groups may, however, be specifically targeted. This includes people
who are marginalized in society and, consequently, more vulnerable to forced
recruitment, violence and other forms of pressure from gangs. It is important to
note that although gang-related violence mostly affects men and boys, women and
girls may also be exposed to such violence. Lack of protection by the State, lack
of opportunities and family care, poverty and a need for social belonging may
push children and youth into joining gangs. The primary victims of youth gangrelated violence are other young people, including those who are involved in
gangs and those who are not. 18 Several distinct categories of applicants in gangrelated asylum claims can be identified and are briefly outlined below.
a) Resistance to gang activity
12. Gangs may direct harm at individuals who in various ways have resisted gang
activity or who oppose, or are perceived to oppose, the practices of gangs.
Members of this group need to be understood in their specific country and societal
contexts. In areas where criminal activity is widespread and law enforcement is
incapable of protecting people from gang violence, a person expressing opposition
to gangs will often stand out from the rest of the community. Such “gangresisters” may be grouped broadly into the following categories:
a. individuals at risk of, or who refuse, recruitment, such as young men and
adolescent boys of a certain social status;
b. individuals, such as young women and adolescent girls, who refuse sexual
demands by gangs, including for prostitution and trafficking purposes, 19 or
to become sexual property of gangs;
c. business owners and others unable or unwilling to meet extortion or other
unlawful demands for money or services by gangs; 20

17

18

19

“Renta” is money collected by gang members from local businesses, public transportation drivers,
households, etc., as part of an organized extortion system. See IHRC, No place to hide, above fn. 9,
p. 81.
See Commission on Human Rights, Extrajudicial, summary or arbitrary executions: Report
submitted pursuant to Commission on Human Rights resolution 2002/36: Addendum - Mission to
Honduras,
14
June
2002,
E/CN.4/2003/3/Add.2,
http://www.unhcr.org/refworld/docid/3dec85782.html, which noted that the “killing of children by
unknown perpetrators is routinely attributed to inter-gang wars between the maras. It is alarming
that a section of the Honduran press often demonizes street children and blames the high level of
violence in the country on child gangs … [i]n the end, every child with a tattoo and street child is
stigmatized as a criminal”, para. 29; WOLA, Transnational Study on Youth Gangs, Mar. 2007,
http://www.wola.org/media/Gangs/executive_summary_gangs_study.pdf, p. 9.
For persons who have been trafficked by gangs, please refer to UNHCR, Guidelines on
International Protection No. 7: “The Application of Article 1A(2) of the 1951 Convention and/or
1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of
Being Trafficked,” 7 Apr. 2006, http://www.unhcr.org/refworld/docid/443679fa4.html.

4

d. witnesses of crimes committed by gangs, or individuals who have reported
such incidents to the authorities who subsequently become vulnerable to
violence as a form of deterrence or retribution; 21
e. law enforcement agents may become targets because of their efforts to
combat gangs;
f. NGO workers, human rights activists, lawyers and participants in
community- or church-based groups who oppose gangs, thus becoming the
targets of intimidation tactics and violence by gangs;22
g. other individuals who are, or are perceived to be, a threat to gangs or as not
conforming with their practices, including ethnic and sexual minorities.
b) Former and current gang members
13. In certain circumstances, former and current gang members may be considered as
victims of gang-related violence, in particular, as a result of forced recruitment,
violent gang rituals and the enforcement of a gang’s membership code. Victims
due to their former gang membership typically involve gang members who have
deserted the gangs or who were forcibly recruited and managed to escape. 23 Such
applicants could fear retaliation and violence from their own and/or rival gangs
and not always benefit from the protection of law enforcement agencies. Although
seeking to disassociate themselves from the gangs, they may continue nevertheless
to be perceived as members, for instance, because of remaining gang tattoos.
14. Current gang members could fear harm from another gang or private individuals.
More frequently, however, their fear may relate to harm emanating from law
enforcement agents. This category also includes individuals who have joined
gangs outside their country of origin but may fear harm if returned.
c) Victims and critics of State’s anti-gang policies and activities
15. Gang-related claims to asylum could also involve victims of State’s unlawful or
arbitrary measures to combat the gang phenomenon (for instance, the abovementioned social cleansing practices). Such measures could be directed against
current gang members but may also involve other individuals who are mistakenly
perceived to belong to gangs, such as former gang members and young people
whose age, appearance or social background resemble those of gang members.
The “Mano Dura” and similar approaches have occasionally targeted groups that

20

21

22

23

See, for instance, Jose Francisco Marquez-Perez, Petitioner v. Mukasey, No. 06-61153, U.S. Court
of Appeals for the 5th Circuit, 29 Feb. 2008 (non-precedent decision),
http://www.unhcr.org/refworld/docid/4b6aca8d2.html, where the proposed group involved
“business owners in El Salvador who [were] targeted by gang members for money;” X (Re),
Immigration and Refugee Board of Canada (Refugee Division), No. T99-04988, 17 Nov.
1999, http://www.unhcr.org/refworld/docid/4b6be1ad2.html,
which
concerned
a
Polish
businessman who had fled threats and extortion demands of former police officers.
Yoli v. Canada (Minister of Citizenship and Immigration), F.C.J. No. 182 2002 FCT 1329, Canada,
Federal Court, 30 Dec. 2002, http://www.unhcr.org/refworld/docid/4039fa464.html.
Emilia Del Socorro Gutierrez Gomez v. Secretary of State for the Home Department, 00/TH/02257,
U.K.
Asylum
and
Immigration
Tribunal,
24
Nov.
2000,
http://www.unhcr.org/refworld/docid/40487df64.html.
Santos-Lemus v. Mukasey, No. 07-70604, U.S. Court of Appeals for the 9th Circuit, 9 Aug. 2008,
http://www.unhcr.org/refworld/docid/4b6c22a82.html.

5

have no association with gangs but who may be considered “undesirable” in
society, 24 e.g. drug addicts, street children, 25 sexual minorities 26 and sex workers.
16. Unlawful or arbitrary measures, including extra-judicial killings, have also
sometimes been used against members of civil society who may be perceived as
critics of the government’s approach towards the gangs. This includes, for
example, human rights activists and former law enforcement officials who have
acted as “whistle-blowers” and reported corrupt or otherwise unlawful behaviour
of government officials in relation to gangs. 27
d) Family members
17. Family members of the above categories may also be routinely targeted by gangs.
Typically, families could be subjected to threats and violence as an act of
retaliation or to exert pressure on other members of the family to succumb to
recruitment attempts or extortion demands. Even though the applicant may not
have personally opposed the gangs or does not share the views of his/her family
members, the gang or in some cases agents of the State may attribute such
resistance or views to the applicant. For example, a woman (or girl) could be
exposed to harm due to being perceived by gangs as holding the same anti-gang
views as her father, husband, son or brothers.

IV.

LEGAL ANALYSIS

18. The increasing number of asylum claims resulting from gang-related activities,
especially in the context of Central America, has necessitated clarification
regarding the interpretation of the refugee definition contained in the 1951
Convention. Eligibility for international protection for individuals fleeing gangrelated violence will depend on a number of factors, including the risks faced by
the applicant, the severity and nature of the violence/human rights abuses suffered
or feared, the causal link with one of the grounds enumerated in the refugee
definition of the 1951 Convention, his/her involvement with gang activities as
well as the level of available State protection in the country concerned. Obviously,
exclusion considerations will need to be considered carefully in many such claims.
19. Proper consideration of the age and gender aspects of a claim will be particularly
important in applications made by children, youth and women; it is essential that

24
25

26

27

Writenet, Report on Central America, above fn. 11.
The Committee on the Rights of the Child in its Concluding Observations on Colombia,
CRC/C/COL/CO/3, 8 June 2008, http://www.unhcr.org/refworld/docid/45377ee30.html, was
particularly disturbed by threats posed by social cleansing and noted that the right to life of children
who live and/or work on the streets may be particularly threatened and also expressed concerns over
the vulnerability of street children to youth gangs, paras. 84–85.
In RRT Case N98/22948, RRTA 1055, Australia, Refugee Review Tribunal, 20 Nov. 2000,
http://www.unhcr.org/refworld/docid/4b7a97fd2.html, the Tribunal accepted that “urban death
squads and vigilante groups target sections of society who they consider to be disposable” and
upheld the claim for refugee status of a HIV positive gay Colombian man. The Tribunal found that
the identification of poor gay men as “disposables” would put them at risk of “social clean up”
operations which “target the urban poor, some gay men, transvestites, male and female prostitutes,
street children, vagrants and petty criminals”.
Writenet, Report on Central America, above fn. 11, p. 10.

6

their relevance not be overlooked or underestimated during the assessment of
claims. 28
a) Well-founded fear of persecution
20. When assessing the well-foundedness of the fear of persecution, it is important to
take into account a number of factors pertaining to the personal profile of the
applicant, including his/her background, experiences, activities, and family
situation. Gang-related asylum claims frequently reveal that one or more members
of the same family have been threatened, harmed, killed or forced to relocate.29
Harm inflicted on other individuals in similar situations, particularly other family
members, may support the well-foundedness of the fear of the applicant.
21. In general, gang-related harm involves different forms of physical and sexual
violence such as homicide, assault, rape, robbery, theft, arson and associated
threats. 30 Beatings, rape and other serious assaults will generally rise to the level
of persecution as would other serious human rights violations, such as trafficking
and kidnapping. 31 Threats of violence or death, even where the applicant has not
yet suffered violence, may also amount to persecution where the threat is deemed
credible in light of the particular context and background of the applicant.
22. Pressure to join a gang often takes place through a gradual escalation of threats
and violence. Coercing someone into a criminal gang or preventing him/her from
leaving it through the use of violence, threats or other forms of coercion is at
variance with a number of human rights, including the rights to freedom of
association and to liberty and security of the person. 32 Forcible recruitment
28

29

30

31

32

See, Doe v. Holder, Attorney General: Brief of the United Nations High Commissioner for Refugees
as
Amicus
Curiae
in
Support
of
Petitioner,
13
Nov.
2009, http://www.unhcr.org/refworld/docid/4b03eb182.html, pp. 17–19.
See, for instance, Matter of E-A-G-, 24 I&N Dec. 591, U.S. Board of Immigration Appeals, 30 July
2008, http://www.unhcr.org/refworld/docid/4ae9acc00.html.
See Francis Gatimi, et al v. Eric H. Holder, Jr. Attorney General of the U.S, No. 08-3197, U.S.
Circuit,
20
Aug.
2009,
Court
of
Appeals
for
the
7th
http://www.unhcr.org/refworld/docid/4aba40332.html. The Court examined whether violence by
gangs can amount to persecution and found that “the immigration judge ruled that the acts
committed by the Mungiki against Gatimi were not persecution but merely ‘mistreatment.’ That is
absurd.” See also - Sandra --, U.S. Department of Justice, Executive Office for Immigration Review
(hereafter “EOIR”), Baltimore, MD, 16 Dec. 2008, where the Court held that “being relentlessly
stalked, threatened, and physically and sexually assaulted by members of a violent gang whom the
Guatemalan government has heretofore been unable to control would qualify as ‘infliction of
suffering’ and thus be considered past persecution,” p. 17.
Such acts may violate the right to life and the right to liberty and security enshrined in the
International
Covenant
on
Civil
and
Political
Rights,
http://www.unhcr.org/refworld/docid/3ae6b3aa0.html (hereinafter “ICCPR”), respectively Arts. 6
and 9. In the case of children, such acts may also violate a range of rights set out in the Convention
on the Rights of the Child, http://www.unhcr.org/refworld/docid/3ae6b38f0.html (hereinafter
“CRC”), including the right to life and maximum survival and development (Art. 6), the right to
protection from all forms of violence (Art. 19), and the right not to be subject to abduction, sale and
trafficking (Art. 35).
See, for instance, the CRC, Arts. 6, 19, 20, 32. See also, the Committee on the Rights of the Child,
General Comment No. 4: Adolescent Health and Development in the Context of the Convention on
the
Rights
of
the
Child,
1
July
2003, CRC/GC/2003/4,
http://www.unhcr.org/refworld/docid/4538834f0.html, which noted that “Violence results from a
complex interplay of individual, family, community and societal factors. Vulnerable adolescents
such as those who are homeless or who are living in institutions, who belong to gangs or who have

7

attempts, including under death threat, by violent groups would normally amount
to persecution. 33 It is also important to recall, in particular with respect to children
who have been forced into or abducted by criminal gangs and are under the
control of gangs, that all forms of slavery and practices similar to slavery are
prohibited according to international human rights law. 34 Such practices,
including the sale and trafficking of human beings, 35 as well as forced or
compulsory labour, 36 would normally be considered as persecution.
23. Harm inflicted by State agents, such as police officers and prison guards, may
include extrajudicial killings, torture, arbitrary arrest and detention. 37 Although a
State has the
right, and responsibility to curb violence by enacting and enforcing
criminal laws for the protection of society, that obligation does not
extend to exercising that duty in such a way as to intentionally inflict
severe pain or suffering on individuals under its custody and control. 38
b) Agents of persecution
24. In most gang-related claims, the persecution emanates from criminal gangs and
other similar non-State groups. As stipulated by the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status, persecution may
“emanate from sections of the population that do not respect the standards

33

34

35

36

37

38

been recruited as child soldiers are especially exposed to both institutional and interpersonal
violence”, para. 19.
As an illustration as to how forced recruitment may constitute persection see, for instance, Dinora
Del Carmen Molina v. INS, 170 F.3d, 1247, U.S. Court of Appeals for the 9th Circuit, 26 Mar. 1999,
http://www.unhcr.org/refworld/docid/4152e0fbc.html, which concerned a guerrilla group in El
Salvador.
The Convention to Suppress the Slave Trade and Slavery, 25 Sep. 1926,
http://www.unhcr.org/refworld/docid/3ae6b36fb.html, provided the first basic definition of slavery:
“Slavery is the status or condition of a person over whom any or all of the powers attaching to the
right of ownership are exercised”, Art 1(1). See also, International Labour Organization, Worst
Forms
of
Child
Labour
Convention,
17
June
1999,
C182,
http://www.unhcr.org/refworld/docid/3ddb6e0c4.html, Art. 3.
See also, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime,
15 Nov. 2000, http://www.unhcr.org/refworld/docid/4720706c0.html, Art. 3.
International Labour Organization, Forced Labour Convention, C29, 28 June 1930, C29,
http://www.unhcr.org/refworld/docid/3ddb621f2a.html, defines forced or compulsory labor as “all
work or service which is exacted from any person under the menace of any penalty and for which
the said person has not offered himself voluntarily”.
The Committee on the Rights of the Child has, in the context of administration of juvenile justice,
expressed particular concern at the repressive measures taken in response to youth gangs. See, for
example, its Concluding Observations on El Salvador, CRC/C/15/Add.232, 30 June 2004,
http://www.unhcr.org/refworld/docid/42d3c19c4.html, paras. 67–68. Some State agents have been
implicated in ordering, facilitating or acquiescing to extrajudicial killings of gang members,
including while in prison; see, for instance, the Report of the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions on his Mission to Guatemala, above fn. 16, and the follow-up
report, A/HRC/11/2/Add.7, 4 May 2009, http://www.unhcr.org/refworld/docid/4a0932270.html.
See Matter of M-R-, EOIR Immigration Court, York PA, (unpublished), 24 May 2005, and
reasoning in relation to deferral of removal under the Convention Against Torture. The applicant
was a former gang member who feared that he would be imprisoned under Honduran anti-gang
legislation due to his past membership in MS-13 and that he would be subjected to severe pain and
suffering while imprisoned. The decision was over-turned, however, on appeal.

8

established by the laws of the country concerned”. The UNHCR Handbook further
provides that “Where serious discriminatory or other offensive acts are committed
by the local populace, they can be considered as persecution if they are knowingly
tolerated by the authorities or if the authorities refuse, or prove unable, to offer
effective protection.” 39
25. After determining whether the harm feared can be considered persecution in the
sense of the 1951 Convention, it is necessary to establish whether the State is
unwilling or unable to provide protection to victims of gang-related violence. The
authorities may be unwilling to protect a particular individual, for instance,
because of their own financial interest in the gang activities or because they
consider the person associated with or targeted by the gangs unworthy of
protection. The State could prove unable to provide effective protection,
especially when certain gangs, such as the Maras, yield considerable power and
capacity to evade law enforcement or when the corruption is pervasive.
26. The State may in certain circumstances be considered the agent of persecution in
gang-related claims. This may be the case, for instance, where individual State
agents collaborate with gang members or direct gangs to engage in violence and
other criminal activities while acting outside the scope of their official duties or as
part of unlawful measures to combat gang-related violence. 40 A State’s
responsibility is engaged where groups or individuals, even if formally separated
from the government structures, act at the instigation, or with the consent of, the
government.
27. An assessment of the availability of State protection will require detailed and
reliable country of origin information, including information about existing
programmes, to address the gang phenomenon and their effectiveness. As with all
other elements of refugee status determination, it is important to analyse the
individual circumstances of each case. A State is not expected to guarantee the
highest possible standard of protection to all its citizens all the time, but protection
needs to be real and effective. 41
28. Factors that may be indicative of available State protection and may help
adjudicators analyse claims include: efforts to reform and expand the criminal
justice system; attempts to end the practice of social cleansing; and the
establishment of witness protection programmes. Conversely, the following
factors are indicative of a lack of effective State protection: lack of measures to
ensure security to individuals at risk of harm by gangs; a general unwillingness on
39

40
41

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, 1 Jan. 1992,
http://www.unhcr.org/refworld/docid/3ae6b3314.html (hereinafter the “UNHCR, Handbook”), para.
65. See also the EU Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the
Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons
Who Otherwise Need International Protection and the Content of the Protection Granted, 19 May
2004, 2004/83/EC, http://www.unhcr.org/refworld/docid/4157e75e4.html, which explicitly refers to
non-State actors as agents of persecution (Art. 6 (c)).
See, for instance, Writenet, Report on Central America, above fn. 11
The existence of Mano Dura and other similar programmes launched to address gang-related crime
need not necessarily be taken as evidence that effective State protection is available. Some
observers have commented on the inability of these programmes to effectively deal with the gangs
and related crime; see, for instance, the Writenet, Report on Central America, above fn. 11.

9

the part of the public to seek police or governmental assistance because doing so
may be perceived as futile or likely to increase risk of harm by gangs; a
prevalence of corruption, impunity and serious crimes, such as extrajudicial
killings, drugs and human trafficking, implicating government officials, police and
security forces. 42
c) Link to a Convention ground
29. To meet the criteria of the refugee definition, an individual’s well-founded fear of
persecution must be related to one or more of the five Convention grounds. As
noted in the UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status “it is for the examiner, when investigating the facts of the case, to
ascertain the reason or reasons for the persecution feared.” 43 It must be shown that
the Convention ground is a contributing factor to the risk of being persecuted,
although it does not need to be the sole, or even dominant, cause. 44 Where the risk
of persecution derives from a non-State actor, the causal link may be satisfied:
(1) where there is a real risk of being persecuted at the hands of a nonState actor for reasons which are related to one of the Convention
grounds, whether or not the failure of the State to protect the claimant
is Convention related; or (2) where the risk of being persecuted at the
hands of a non-State actor is unrelated to a Convention ground, but the
inability or unwillingness of the State to offer protection is for a
Convention reason. 45
30. In many gang-related cases, in particular those concerning young people who
resist recruitment or other unlawful gang demands, an individual is targeted
because s/he lives in a poor neighbourhood, and/or is without family or other
social support networks. On that basis, individuals are at heightened risk of being
targeted because of their marginalization, social status and vulnerability.
d) Convention grounds
31. Jurisprudential developments suggest that gang-related asylum claims have most
frequently been analysed within the 1951 Convention ground of “membership of a
particular social group” and/or “political opinion”. This in itself does not exclude

42

43
44

45

See discussion on State protection in RPD File No. TA7-04670, TA7-04671, TA7-04672, (Private
Proceedings), Immigration and Refugee Board of Canada, CanLII 49548, Canada, Immigration and
Refugee Board, 31 Jan. 2008, http://www.unhcr.org/refworld/docid/4b6bea7e2.html, p. 3.
UNHCR, Handbook, above fn. 39, para. 67.
UNHCR, Position on Claims for Refugee Status under the 1951 Convention relating to the Status of
Refugees Based on a Fear of Persecution Due to an Individual's Membership of a Family or Clan
Engaged in a Blood Feud, 17 Mar. 2006, http://www.unhcr.org/refworld/docid/44201a574.html,
para. 13.
UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social
Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol
Relating
to
the
Status
of
Refugees,
7
May
2002,
http://www.unhcr.org/refworld/docid/3d36f23f4.html, (hereinafter “UNHCR, Guidelines on
Membership of a Particular Social Group”), para. 23.

10

the applicability of any of the other 1951 Convention grounds. It is also important
to note that the grounds are not mutually exclusive and may overlap. 46
(i) Religion
32. The 1951 Convention ground of religion may be relevant for the analysis of a
claim where the applicant’s religious beliefs are incompatible with gang life
style. 47 It could, for example, be the case where the applicant refuses to join a
gang because of his/her religious belief or conscience, or where a gang member
who experiences religious conversion wants to exit the gang. An individual’s
religion or beliefs may also be a ground for persecution where intolerance and
violence against people of other religions or beliefs in a particular society is
promoted by gangs. In such contexts, it is important to consider whether the
applicant’s religious conviction has been or could be brought to the attention of
gang members. 48
(ii) Race and nationality
33. Some gangs are motivated by racist or nationalist ideologies and operate in
environments where racial discrimination is common. Gangs may, for example,
fuel xenophobia and carry out hate crimes against foreigners as well as ethnic and
national minorities. In such contexts, individuals belonging to these minorities,
including indigenous groups, may be targeted by gangs because of their race or
nationality. In the absence of State protection, the 1951 Convention grounds of
race and/or nationality may thus be applicable where the applicant is persecuted
by a gang on account of his or her race, ethnicity or nationality. 49

46

47

48

49

UNHCR, Handbook, above fn. 39, para. 67. See also, Orozco-Polanzo (Re), No. A75-244-012, U.S.
EOIR,
Immigration
Court,
El
Paso,
Texas,
18
Dec.
1997,
http://www.unhcr.org/refworld/docid/4b6beec42.html. The applicant was a young male from
Guatemala who had refused recruitment attempts by two gangs as he did not believe in the values of
the gangs. The Court found that “the grounds of political opinion and membership in a particular
group are interchangeable”.
In Romero-Rodriguez v. U.S. Attorney General, 131 Fed.Appx.203, 2005 WL 1106550, U.S. Court
Circuit,
10
May
2005,
of
Appeals
for
the
11th
http://www.unhcr.org/refworld/docid/4b7aa25b2.html, the applicants claimed a fear of persecution
for their refusal to join a criminal organization due to their religious and conscientious upbringing.
See further UNHCR, Guidelines on International Protection No. 6: Religion-Based Refugee Claims
under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of
Refugees, 28 Apr. 2004, http://www.unhcr.org/refworld/docid/4090f9794.html , paras. 4, 14.
UNHCR, Handbook, above fn. 39, paras. 68–70, 74–76. See also decision V-95-00138, Canada,
Convention Refugee Determination Division, 16 Jan. 1997, which noted that racial discrimination
was common in Colombia and that young, poor, black men were common targets of gangs,
operating with the tacit approval of the government. It was determined that the applicant had
suffered from discrimination amounting to persecution on account of his race and socio-economic
group. However, he was found to have an internal flight alternative; X (re), File No. TA7-13448,
TA7-13528; TA7-13529, TA7-13530, Canada, Immigration and Refugee Board, 28 July 2008
(amended 16 Sep. 2008), http://www.unhcr.org/refworld/docid/4b7bad512.html, which concerned
a Roma family fearing harm from skinhead gangs; Refugee Appeal Nos. 76259, 76260 & 76261,
New
Zealand,
Refugee
Status
Appeals
Authority, 16
Dec.
2008,
http://www.unhcr.org/refworld/docid/4a1a8c002.html.

11

(iii) “Membership of a Particular Social Group”
34. UNHCR defines a particular social group as:
a group of persons who share a common characteristic other than their
risk of being persecuted, or who are perceived as a group by society.
The characteristic will often be one which is innate, unchangeable, or
which is otherwise fundamental to identity, conscience or the exercise
of one’s human rights. 50
This definition combines the two alternate approaches emerging in State practice,
that is, the “protected characteristics” approach and the “social perception”
approach into one definition. In UNHCR’s view, both approaches are legitimate.
The group only needs to be identifiable through one of the approaches, not both. 51
35. Although a social group cannot be “defined exclusively by the persecution that the
members of the group suffer or by a common fear of being persecuted”, the fact
that members of a group have been or are being persecuted may serve to illustrate
the potential relationship between persecution and a particular social group. 52
However, in order to be recognized, it is not necessary for a group to be victim of
a higher incidence of crime or human rights violations than the rest of the
population. As with other types of claims, the size of the group is also not
relevant. 53
Innate and immutable characteristics
36. Individuals who resist forced recruitment into gangs or oppose gang practices may
share innate or immutable characteristics, such as their age, gender and social
status. 54 Young people of a certain social status are generally more susceptible to
recruitment attempts or other violent approaches by gangs precisely because of the
characteristics that set them apart in society, such as their young age,
impressionability, dependency, poverty and lack of parental guidance. Indeed,
recent studies have found that the recruitment practices of Central American gangs

50
51

52

53
54

UNHCR, Guidelines on Membership of a Particular Social Group, above fn. 45, paras. 11–13.
Ibid, para. 14. “Social visibility” and “particularity” have been introduced in U.S. jurisprudence as
additional requirements for recognition of a particular social group in a number of decisions,
including in relation to gangs. Recently, however, in Francis Gatimi, et al., v. Eric H. Holder,
above fn. 30, the “social visibility” requirement was questioned. For further information about
UNHCR’s position on the issue, see Valdiviezo-Galdamez v. Holder, Attorney General. Brief of the
United Nations High Commissioner for Refugees as Amicus Curiae in Support of the Petitioner, 14
Apr. 2009, http://www.unhcr.org/refworld/docid/49ef25102.html; Doe v. Holder, UNHCR,
Amicus Curiae, above fn. 28.
A v Minister for Immigration & Ethnic Affairs, Australia, High Court, 24 Feb. 1997,
http://www.unhcr.org/refworld/docid/3ae6b7180.html. The Court found that “while persecutory
conduct cannot define the social group, the actions of the persecutors may serve to identify or even
cause the creation of a particular social group in society.”
UNHCR, Guidelines on Membership of a Particular Social Group, above fn. 45, para. 18.
See, for instance, VM (FGM - Risks - Mungiki - Kikuyu/Gikuyu) Kenya v. Secretary of State for the
Home Department, UKAIT 00049, U.K. Asylum and Immigration Tribunal, 9 June 2008,
http://www.unhcr.org/refworld/docid/484d4a222.html, which involved a female asylum-seeker
fearing persecution in the form of enforced female genital mutilation from her partner, a member of
the Mungiki organization; the recognized group was “women (girls) in Kenya”.

12

frequently target young people. 55 Thus, an age-based identification of a particular
social group, combined with social status, could be relevant concerning applicants
who have refused to join gangs. The immutable character of “age” or “youth” is in
effect, unchangeable at any given point in time. 56
37. Past actions or experiences, such as refusal to join a gang, may be considered
irreversible and thus immutable. 57 For instance, In Matter of S-E-G (2008), the
United States Board of Immigration Appeals accepted that “youth who have been
targeted for recruitment by, and resisted, criminal gangs may have a shared past
experience, which, by definition, cannot be changed.” 58 Past association with a
gang may be a relevant immutable characteristic in the case of individuals who
have been forcibly recruited.
Characteristics fundamental to one’s conscience and exercise of human rights
38. Resisting involvement in crime by, for instance, evading recruitment or otherwise
opposing gang practices may be considered a characteristic that is fundamental to
one’s conscience and the exercise of one’s human rights. At the core of gang
resistance is the individual’s attempt to respect the rule of law 59 and, in the case of
those who refuse to join the gangs, also the right to freedom of association,
including the freedom to not associate. 60 Former gang members may also be
considered as seeking to exercise their right to rehabilitation and reform. 61 The
ethical belief at stake, namely the belief to be “law-abiding”, may be considered to
be of such a fundamental nature that the person concerned ought not be required
to renounce it, as this, in effect, would be tantamount to requiring him/her to give
in to the demands of the gangs and become involved in crime. 62 United States

55

56

57
58
59
60

61

62

Youth within the age range of 8–18 years may be particularly vulnerable to recruitment. See, for
instance, the USAID, Central America and Mexico Gang Assessment Report, above fn. 11, p. 15.
UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2
and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 Dec.
2009, http://www.unhcr.org/refworld/docid/4b2f4f6d2.html, para. 49. See also, Matter of S-E-G-, et
al., 24 I&N Dec. 579, U.S. Board of Immigration Appeals, 30 July 2008,
http://www.unhcr.org/refworld/docid/4891da5b2.html, in which the Court acknowledged that “the
mutability of age is not within one’s control, and that if an individual has been persecuted in the
past on account of an age-described particular social group, or faces such persecution at a time
when that individual’s age places him within the group, a claim for asylum may still be
cognizable,” p. 583.
UNHCR, Guidelines on Membership of a Particular Social Group, above fn. 45, para. 6.
See Matter of S-E-G, above fn. 56.
ICCPR, Art. 14.
ICCPR,
Art.
22;
American
Convention
on
Human
Rights,
http://www.unhcr.org/refworld/docid/3ae6b36510.html, Art. 16.
These fundamental principles underpin ICCPR, Arts. 10(3), 14. See further Human Rights
Committee, CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality
before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established
by Law, 13 Apr. 1984, http://www.unhcr.org/refworld/docid/453883f90.html, para. 16; CCPR,
General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 10
Apr. 1992, http://www.unhcr.org/refworld/docid/453883fb11.html, paras. 10–13.
Islam (A.P.) v. Secretary of State for the Home Department Regina v. Immigration Appeal Tribunal
and Another Ex Parte Shah (A.P.) (Conjoined Appeals). UNHCR Intervening: Case for the
Intervener, 25 Mar. 1999, http://www.unhcr.org/refworld/docid/3eb11c2f4.html; Doe v. Holder,
UNHCR, Amicus Curiae, above fn. 28, p. 27.

13

courts, for instance, have recognized particular social groups such as “young
people who refuse to join a gang because they oppose crime”. 63
39. Some applicants claim a fear of persecution as a result of pursuing their
occupation, for example, business owners and public transportation staff who have
been pressured by gangs to pay “renta” and other extortionate demands. 64
Requiring an applicant to abandon his or her occupation in order to avoid
persecution amounts to a violation of the right not to be arbitrarily deprived of the
right to work. 65 A particular social group based on the applicant’s occupation may
in certain circumstances therefore be recognized where disassociation from the
profession is not possible or this would entail a renunciation of basic human
rights. This could also include journalists who have investigated crimes committed
by gangs or former law enforcement officers who have reported corrupt behaviour
on the part of some Stage agents. 66
40. An applicant who is a family member of a “gang resister” (or gang member) could
also be persecuted for reasons of his/her family membership, for example, where
the family has a known record of being opposed to a gang. In such cases, the
applicant’s “family” may be regarded as a relevant particular social group. 67
Family members may also experience persecution because of their imputed
membership in any of the above-mentioned groups. 68
The social perception approach
41. The social perception approach may also be relevant for the identification of a
relevant social group. In a cultural context where it is risky for people to oppose
gangs, often in closely knitted neighbourhoods that are effectively controlled by
gangs, gang resisters may be set apart in society. In addition to youth and gender,
those targeted for gang recruitment and other gang-related practices may be
perceived by society as a social group by reason of their origin, social background
63
64

65

66

67

68

Orozco-Polanco (Re), above fn. 46.
See, for instance, RRT Case No. 0906782, RRTA 1063, Australia, Refugee Review Tribunal, 24
Nov. 2009, http://www.unhcr.org/refworld/docid/4b5708f42.html, where the recognized particular
social group was “bus, public transport and truck drivers.”
International
Covenant
on
Economic,
Social
and
Cultural
Rights,
http://www.unhcr.org/refworld/docid/3ae6b36c0.html, Arts. 2(2), 6.
RPD File No. TA7-04670, TA7-04671, TA7-04672, above fn. 42. The principal applicant was
targeted by an organized crime gang as a result of articles he had written. The Board found that “the
PC is a XXXXX and he should not be expected to abandon his vocation and go into hiding in
another location in Mexico”.
“Family” or “kinship ties” have been recognized by several jurisdictions as constituting a
“particular social group” for the purpose of the refugee definition. See, for instance, Matter of
Acosta, A-24159781,
U.S.
Board
of
Immigration
Appeals,
1
Mar.
1985,
http://www.unhcr.org/refworld/docid/3ae6b6b910.html; Sanchez Trujillo v. INS, 801 F.2d 1571,
Circuit,
15
Oct.
1986,
U.S.
Court
of
Appeals
for
the
9th
http://www.unhcr.org/refworld/docid/4a3a3af50.html. The Court noted that “perhaps a prototypical
example of a ‘particular social group’ would consist of the immediate members of a certain family,
the family being a focus of fundamental affiliational concerns and common interests,” para. 26.
See, for instance, Orejuela v. Gonzales, 423 F.3d 666, U.S. Court of Appeals for the 7th Circuit, 8
Sep. 2005, http://www.unhcr.org/refworld/docid/4b7a9a0a2.html. The applicant was targeted by
FARC (Revolutionary Armed Forces of Colombia) which had killed her husband. The Court
granted the application based on the fact that the political opinion of her husband had been imputed
to her. See further, Del Carmen Molina v. INS, above fn. 33.

14

or class. 69 Examples abound of young people from certain areas or backgrounds
who are regularly targeted by gangs for recruitment, extortion or other purposes. 70
42. Imputed gang membership may amount to being a member of a relevant social
group in the case of youth or others who are erroneously perceived to be gang
members but who, in fact, have no affiliation with a gang. For example, youth
who happen to be present when gang members are arrested may be erroneously
considered gang members. When gangs exercise de facto control over some
neighbourhoods of certain cities, it is consequently plausible for a young person to
be targeted by virtue of his/her tie to that neighbourhood. Youth may also be
targeted if they are friends with gang members.
Special considerations concerning applicants with past or current gang affiliation
43. Claims concerning individuals with present or past voluntary affiliation with
gangs require a careful assessment of whether the applicant is indeed a member of
a particular social group. In UNHCR’s view, voluntary membership in organized
gangs normally does not constitute membership of a particular social group within
the meaning of the 1951 Convention. Because of the criminal nature of such
groups, it would be inconsistent with human rights and other underlying
humanitarian principles of the 1951 Convention to consider such affiliation as a
protected characteristic. 71
44. In such cases, it is important to take into account the circumstances under which
the applicant joined the gang. An individual who has been forcibly recruited into a
gang would primarily be considered a victim of gang practices rather than a
person associated with crime. This applies in particular to young people who may
have less capacity or means to resist gang pressures. Children who lack the
requisite maturity and mental capacity would normally not be considered to have
voluntarily joined a gang. 72 However, even if gang association occurred on a
69

70

71

72

Social groups with low socio-economic status have been recognized by some jurisdictions. See, for
example, MA6-03043, CanLII 47104, Canada, Immigration and Refugee Board, 29 Feb. 2009,
http://www.unhcr.org/refworld/docid/4b7aa3662.html, which recognized that “poor Haitian women
with HIV/AIDS” can constitute a particular social group; MA0-06253, CanLII 26873, Canada,
Immigration
and
Refugee
Board,
18
Jan.
2001,
http://www.unhcr.org/refworld/docid/4b7aa5692.html, which found that “in a country where major
landholders, with impunity and the use of violence, still oppose agrarian reforms designed to
provide poor and disadvantaged peasants with a minimum of dignity and chance for survival,
membership in such an agricultural cooperative is a sacred and essential right which no one should
be compelled to waive”. See also, RRT Case N98/22948, above fn. 26.
USAID, Central America and Mexico Gang Assessment Report, above fn. 11, p. 15. See further
Goodwin-Gill and Jane McAdam, The Refugee in International Law, 2007 ed., pp. 85–86; Michelle
Foster, International Refugee Law and Socio-Economic Rights, Refuge from Deprivation, 2007, pp.
303–313.
In Arteaga v. Mukasey, 511 F.3d 940, U.S. Court of Appeals for the 9th Circuit, 27 Dec. 2007,
http://www.unhcr.org/refworld/docid/4b6be7662.html, the Court noted that “to do as Arteaga
requests would be to pervert the manifest humanitarian purpose of the statute in question and to
create a sanctuary for universal outlaws. Accordingly, we hold that participation in such activity is
not fundamental to gang members’ individual identities or consciences, and they are therefore
ineligible for protection as members of a social group”, at 946. See also, Chacon v. INS, 341 F.3d
Circuit,
18
Aug.
2003,
533,
U.S.
Court
of
Appeals
for
the
6th
http://www.unhcr.org/refworld/docid/4b6bf1ac2.html.
In Canada (Minister of Citizenship and Immigration) v. X, CanLII 47735, Canada, Immigration and
Refugee Board, 31 May 2007, http://www.unhcr.org/refworld/docid/4b7a9d2d2.html, the Board

15

voluntary basis, former gang members, including those who have engaged in, or
have been convicted of, criminal activity, may constitute a particular social group
under certain circumstances provided they have denounced their affiliation with
the gang and credibly deserted from it. In such cases, it is important to assess
whether the applicant is fleeing persecution or prosecution/punishment for a
common law offence. 73 It will also be necessary to consider whether any of the
exclusion clauses apply (as further addressed below, at (g) Exclusion).
(iv) Political opinion
45. Gang-related refugee claims may also be analysed on the basis of the applicant’s
actual or imputed political opinion vis-à-vis gangs, and/or the State’s policies
towards gangs or other segments of society that target gangs (e.g. vigilante
groups). In UNHCR’s view, the notion of political opinion needs to be understood
in a broad sense to encompass “any opinion on any matter in which the machinery
of State, government, society, or policy may be engaged”. 74
46. The 1951 Convention ground of political opinion needs to reflect the reality of the
specific geographical, historical, political, legal, judicial, and socio-cultural
context of the country of origin. 75 In certain contexts, expressing objections to the
activities of gangs or to the State’s gang-related policies may be considered as
amounting to an opinion that is critical of the methods and policies of those in
power and, thus, constitute a “political opinion” within the meaning of the refugee
definition.
47. It is important to consider, especially in the context of Central America, that
powerful gangs, such as the Maras, may directly control society and de facto
exercise power in the areas where they operate. The activities of gangs and certain
State agents may be so closely intertwined that gangs exercise direct or indirect
influence over a segment of the State or individual government officials. Where
criminal activity implicates agents of the State, opposition to criminal acts may be
analogous with opposition to State authorities. Such cases, thus, may under certain
circumstances be properly analysed within the political opinion Convention
ground. 76 Some jurisdictions have recognized that opposition to a criminal activity

73
74

75

76

adopted the reasoning in Poshteh v. Canada (Minister of Citizenship and Immigration), A-207-04,
2005
CAF
85,
Canada,
Federal
Court
of
Appeal,
4
Mar.
2005,
http://www.unhcr.org/refworld/docid/47e0e21b2.html, i.e. that “in the case of a minor under the age
of 12, for example, it would be highly unusual for there to be a finding of membership [in a
criminal organization, in this case a gang]” and that “[T]here is a continuum that the closer the
minor is to age 18, the greater the presumption of understanding of his actions.”
UNHCR, Handbook, above fn. 39, paras. 56–59.
UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution Within the
Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of
Refugees, 7 May 2002, http://www.unhcr.org/refworld/docid/3d36f1c64.html, para. 32. This
interpretation has also received support in academic commentary; see for instance, Goodwin-Gill
and Mc Adam, The Refugee in International Law, above fn. 70, p. 87.
Refugee Appeal Nr. 76044, New Zealand, Refugee Status Appeals Authority, 11 Sep. 2008,
http://www.unhcr.org/refworld/docid/48d8a5832.html, para. 84.
See, for instance, Emilia Del Socorro Gutierrez Gomez v. The Secretary of State for the Home
Department, above fn. 22, which noted that “the risk of extortion threats from a criminal gang will
not normally be on account of political opinion, but in some societies where criminal and political
activities heavily overlap, the picture may be different”, para. 40; Vassilev v. Canada (Minister of
Citizenship and Immigration), CanLII 5394 (F.C.), 131 F.T.R. 128, Canada, Federal Court, 4 July

16

or, conversely, advocacy in favour of the rule of law may be considered a political
opinion. 77
48. Although not every expression of dissent will amount to political opinion, it may
be political where the dissent is rooted in a political conviction. 78 Where an
applicant has refused the advances of a gang because s/he is politically or
ideologically opposed to the practices of gangs and the gang is aware of his/her
opposition, s/he may be considered to have been targeted because of his/her
political opinion. 79
49. In certain circumstances, an applicant who fears harm because of his/her
opposition to a government’s policy or to the authorities’ investigation of gangrelated crime may qualify as a refugee on account of his/her political opinion.
Such action could be viewed as a criticism of the State’s inability to ensure law
and order or imply an accusation of corruption amongst State authorities. 80 The
political opinion ground would be particularly relevant where gang activity is
closely intertwined with some parts of the authorities and/or the applicant has
acted as a “whistle-blower” against corruption or other unlawful measures by
certain State agents. 81
50. In some cases, the opinion of the applicant may be characterized as neutral rather
than as opposition. 82 This may, for example, be the case where a person expressly
declines to join a gang, telling the gang that s/he is satisfied as s/he is. In such
situations, neutrality is not the absence of an opinion but rather a conscious and

77

78

79

80

81

82

1997, http://www.unhcr.org/refworld/docid/4b6bf8502.html. The Court found that “in this case
criminal activity permeates State action. Opposition to criminal acts becomes opposition to State
authorities. On these facts it is clear that there is no distinction between the anti-criminal and
ideological/political aspects of the claimant's fear of persecution. One would never deny that
refusing to vote because an election is rigged is a political opinion.”
The U.S. Immigration Court, for instance, has found that the applicant had the political opinion of
“believing in following the rule of law and earning an honest living and of opposing gang lifestyle
and its accompanying illegal activities”. See Matter of Orozco-Polanco, above fn. 46.
(Attorney General) v. Ward, 2 S.C.R. 689, Canada, Supreme Court, 30 June 1993,
http://www.unhcr.org/refworld/docid/3ae6b673c.html. The Court found that “Not just any dissent to
any organization will unlock the gates to Canadian asylum; the disagreement has to be rooted in a
political conviction.”
Klinko v. Canada (Minister of Citizenship and Immigration), 3 F.C. 327; [2000] F.C.J. No. 228,
Canada, Federal Court, 22 Feb. 2000, http://www.unhcr.org/refworld/docid/403f18574.html.
See, for instance, TA2-15177, CanLII 55276, Canada, Immigration and Refugee Board, 7 Mar.
2003, http://www.unhcr.org/refworld/docid/4b7aa7032.html, which involved a claimant from Peru
whose knowledge of misappropriation of funds in the government resulted in threats against his
family and the kidnapping of his sister. The claimant was found to have a well-founded fear of
persecution by reason of imputed political opinion; Demchuk v. Canada, CanLII 8677
(F.C.), Canada,
Immigration
and
Refugee
Board,
9
Sep.
1999,
http://www.unhcr.org/refworld/docid/4b7aa8572.html.
Grava v. INS, 205 F.3.d. 1177, U.S. Court of Appeals for the 9th Circuit, 7 Mar. 2000,
http://www.unhcr.org/refworld/docid/4152e0fa6.html. The Court found that threats against a
whistle-blower who reported corrupt behaviour of government officials might be on account of
political opinion.
See, for instance, Sangha v. INS, 103 F. 3d, 1482, 1487, U.S. Court of Appeals for the 9th Circuit,
1997, http://www.unhcr.org/refworld/docid/4152e0fc15.html. The Court noted that “in these cases,
the victim was recruited by a political group. The victim refused, and the political group threatened
death if he did not comply. We reasoned in those cases that the victim’s refusal showed his political
neutrality, which was the equivalent of a political opinion, and that the persecutor’s threats were
persecution on account of that political opinion.”

17

deliberate choice of the applicant and may constitute a political opinion. This may
be especially so in an “environment in which political neutrality is fraught with
hazard.” 83 A political opinion can be expressed both affirmatively and negatively.
No doubt, rejecting a recruitment attempt may convey anti-gang sentiments as
clearly as an opinion expressed in a more traditional political manner by, for
instance, vocalizing criticism of gangs in public meetings or campaigns. 84
51. Political opinion can also be imputed to the applicant by the gang without the
applicant taking any action or making a particular statement him/herself. 85 A
refusal to give in to the demands of a gang is viewed by gangs as an act of
betrayal, and gangs typically impute anti-gang sentiment to the victim whether or
not s/he voices actual gang opposition. Family members who are related to those
who oppose gang practices may be perceived to hold the same opinion. 86
e) Internal flight alternative
52. The option of internal flight or relocation must be both relevant and reasonable.
Relocation is normally not considered relevant where the feared persecution
emanates from, or is condoned or tolerated by, State agents, as State agents are
presumed to exercise authority in all parts of the country. 87 This, therefore,
generally precludes relocation where State agents are complicit with the gang
activities or in cases involving a fear of arbitrary and unlawful State measures.
53. Where the applicant fears persecution by a non-State agent, the first analysis
includes an assessment of the ability of the gang (or other similar group) to pursue
the applicant in the proposed alternative location and the protection that would be
available there from State authorities. 88 It is important to distinguish the reach of
gangs which operate in relatively small countries, from gangs active in larger
countries. Given that many of the Central American gangs, such as the Maras,
have country- or even region-wide reach and organization, there may generally be
no realistic internal flight alternative in claims relating to these gangs. 89

83

84
85

86

87

88
89

Calderon-Medina (Re), No. A 78-751-1981, U.S. EOIR Immigration Court, Newark, NJ, 1 May
2002, http://www.unhcr.org/refworld/docid/4b6bfb332.html.
Matter of D-V, U.S. EOIR, Immigration Court, San Antonio, Texas, (unpublished), 9 Sep. 2004.
An imputed political opinion is defined as a political opinion that is attributed to the asylum-seeker
by his/her persecutors. See, Vasquez v. INS, 177 F.3.d 62, 65, U.S. Court of Appeals for the 1st
Circuit, 24 May 1999, http://www.unhcr.org/refworld/docid/4b6c02142.html. The Court held that
whether correctly or incorrectly attributed, an imputed political opinion “may constitute a reason for
political persecution within the meaning of the Act.”
Althea Sonia Britton v. Secretary of State for the Home Department, EWCA Civ 227, U.K. Court of
Appeal, 7 Feb. 2003, http://www.unhcr.org/refworld/docid/403e49454.html. The appellant and her
family became the targets of a gang for political reasons (her cousins left a political party in which
they had been active members, and as result were suspected of betraying it).
UNHCR, Guidelines on International Protection No. 4: "Internal Flight or Relocation Alternative"
Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the
Status of Refugees, 23 July 2003, http://www.unhcr.org/refworld/docid/3f2791a44.html, para. 13.
Ibid, para. 15.
As noted by WOLA, A Resource Guide, above fn. 2, p. 3, “Even if one were able to move to
another city, the gang presence is pervasive and relocation would not provide safety from
persecution by gangs. Abandoned children without family support are even less likely to be able to
relocate.”

18

54. Experiences of individuals fleeing gang violence often reveal that the victim may
have sought protection internally within his/her country or relocated in the region,
in order to escape the gangs. Such attempts have often been unsuccessful as gangs
can locate the individual in urban as well as in rural areas, appearing at the
applicant’s home and place of work as well as near the homes of family members.
Young people, without adult support, are likely to face even more difficulties
relocating without their family’s assistance.
f) Exclusion
55. The clauses contained in Article 1F of the 1951 Convention provide for the
exclusion from refugee status of individuals who, otherwise, would meet the
refugee definition set out in Article 1A(2) of the 1951 Convention but who are
deemed not deserving of international protection on account of the commission of
certain serious and heinous acts. Since Article 1F is intended to protect the
integrity of asylum, it needs to be applied scrupulously. 90
56. In cases where there are indications that an individual has been associated or
involved with criminal activities which may bring him/her within the scope of
Article 1F of the 1951 Convention, adjudicators will need to undertake an
exclusion assessment. 91 Bearing in mind UNHCR’s Exclusion Guidelines, a
number of issues which are particularly relevant to gang-related asylum claims are
highlighted below.
(i) Excludable acts in the context of asylum claims relating to gangs
57. Given the context in which gangs operate, Article 1F(b) of the 1951 Convention
will be most relevant. It provides for the exclusion from refugee status of persons
who have committed “a serious non-political crime outside the country of refuge
prior to being admitted to that country as a refugee”. 92

90

91

92

Art. 1F stipulates that “the provisions of the 1951 Convention shall not apply to any person with
respect to whom there are serious reasons for considering that he [or she] (a) has committed a crime
against peace, a war crime, or a crime against humanity, as defined in the international instruments
drawn up to make provision in respect of such crimes; b) has committed a serious non-political
crime outside the country of refuge prior to his [or her] admission to that country as a refugee; c)
has been guilty of acts contrary to the purposes and principles of the United Nations.” UNHCR’s
interpretative legal guidance on the substantive and procedural standards for the application of Art.
1F is set out in UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion
Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 Sep. 2003,
(hereafter:
“UNHCR,
Guidelines
on
Exclusion”)
http://www.unhcr.org/refworld/docid/3f5857684.html; UNHCR, Background Note on the
Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of
Refugees, 4 Sep. 2003, (hereafter “UNHCR, Background Note on Exclusion”),
http://www.unhcr.org/refworld/docid/3f5857d24.html; UNHCR, Statement on Article 1F of the
1951 Convention, July 2009, (hereafter “UNHCR, Statement on Article 1F”),
http://www.unhcr.org/refworld/docid/4a5de2992.html, and UNHCR, Handbook, above fn. 39,
paras. 140–163.
UNHCR’s interpretative legal guidance on the substantive and procedural standards for the
application of Art. 1F stated above should be referred to by decision makers when examining
asylum claims relating to gangs and other groups involved in criminal activities.
UNHCR, Background Note on Exclusion, above fn. 90, para. 37.

19

58. Many of the crimes committed by gangs, such as extortion, robbery, murder,
homicide, violent assaults, rape, prostitution, kidnapping and trafficking in people,
drugs and arms, and other violent crimes would generally qualify as serious
offences under Article 1F(b) of the Convention.
(ii) Individual responsibility
59. For exclusion to be justified, individual responsibility needs to be established in
relation to a crime falling within the scope of Article 1F. Three issues need to be
addressed in this context: (i) the involvement of the applicant in the excludable
act; (ii) the applicant’s mental state (mens rea); and, (iii) possible grounds for
rejecting individual responsibility. 93
60. In other words it is important to determine, based on credible and reliable
information, that the individual committed or participated in the commission of
the material elements of the crime(s) in question with the requisite mental element
(mens rea). 94 Depending on the circumstances, a person may incur individual
responsibility: (i) by perpetrating excludable crimes him/herself; (ii) for crimes
perpetrated by others, either by provoking others to commit such crimes (e.g.
through planning, inciting, ordering); or (iii) by making a substantial contribution
to the commission of the crimes such that others know that his/her acts facilitated
the criminal conduct (e.g. by aiding, abetting, or participating in a joint criminal
enterprise). 95 In relation to gang-related asylum claims, the latter is particularly
relevant.
61. The fact that an individual was part of a gang does not in itself entail individual
liability for excludable acts. However, for applicants who were associated with a
gang that has reportedly been involved in “serious non-political crimes” it is
necessary to conduct a thorough assessment of their activities, roles and
responsibilities. In some cases, depending on the gang’s objectives, activities,
methods and other circumstances, individual responsibility for excludable acts
may be presumed if membership in a particularly violent group is voluntary.

V.

CONCLUSION

62. Clearly not all individuals who are affected in some way by the activities of
organized gangs qualify for international protection. Victims of gang violence
would, for instance, normally not be eligible for refugee status where the State is
able or willing to provide effective protection. Gang members who flee legitimate
prosecution for criminal activities would normally not meet the inclusion criteria
of the 1951 Convention. In some situations, however, the very methods through
which a State seeks to protect against gang violence may themselves be
repressive. Additionally, those who have committed serious non-political crimes

93
94

95

Ibid, paras. 50–63.
As reflected in the Rome Statute of the International Criminal Court, 17 July 1998,
http://www.unhcr.org/refworld/docid/3ae6b3a84.html, Art. 30, the mental element generally
required for individual responsibility is “intent” (with regard to conduct or consequences) and
“knowledge” (with regard to circumstances or consequences).
UNHCR, Background Note on Exclusion, above fn. 90, paras. 50–56.

20

would normally not be considered as victims of gangs but as ordinary criminals
and be excluded from refugee protection under the 1951 Convention.
63. Gang violence may affect large segments of society, especially where the rule of
law is weak. Evidently, however, certain individuals are particularly at risk of
becoming victims of gangs. They may be targeted because of their age,
occupation, socio-economic status and their refusal to comply with gangs. Many
asylum claims originate from marginalized youth who have been caught up in the
violence. Their family members are often also drawn into the equation when
gangs threaten to retaliate or exercise pressure to compel compliance with their
demands.
64. One of the complex legal questions that needs to be considered in gang-related
asylum claims is the establishment of a link between the persecution feared and
one or more of the grounds enumerated in the 1951 Convention. Jurisprudence in
this regard is far from uniform. In some jurisdictions, it has been argued that to
fear harm “at the hands of gangsters” is not for a Convention ground; the claimant
is simply targeted because of his/her money or for reasons of retribution by an
organized gang. A link to the 1951 Convention ground “membership of a
particular social group” has sometimes been dismissed because the possible
“group” is merely defined by the persecution feared.
65. As reflected in some of the recent jurisprudential developments referred to in this
Note, the necessary causal link can, under certain circumstances, be established.
UNHCR’s perspective is that the interpretation of the 1951 Convention grounds
needs to be inclusive and flexible enough to encompass emerging groups and
respond to new risks of persecution. Young people, in particular, who live in
communities with a pervasive and powerful gang presence but who seek to resist
gangs may constitute a particular social group for the purposes of the 1951
Convention. Additionally, people fleeing gang-related violence may have a wellfounded fear of persecution on account of their political opinion, especially where
criminal and political activities heavily overlap. In the absence of effective State
protection, individuals may also fear persecution at the hands of gangs which
pursue religious or ethnic ideologies through violent means.

21