REDACTED

REDACTED2011

Confidential
Via FedEx
US Department of Homeland Security
Bureau of Citizenship and Immigration Services
Asylum Office
1525 Wilson Boulevard
Arlington, VA 20598-2500
Re:

REDACTED
REDACTED

Dear Officer:
We represent REDACTED
(REDACTEDan 18-year-old native and
REDACTED
citizen of El Salvador.
is eligible and deserving of asylum under Section 208 of the
Immigration and Nationality Act (INA) of 1952, as amended, 8 U.S.C. 1158. On behalf of
REDACTEDwe submit this memorandum and supplemental documents in support of her
application for asylum. As supported by her I-589, documentation, and testimony, REDACTED
claims are based on past persecution and a well-founded fear of future persecution on account of
her membership in the social group of Salvadoran young women who refuse to be victims of
violent sexual predation by gang members and because of her anti-gang/anti-machista political
opinions.
Members of the Mara Salvatrucha gang (MS-13) kidnapped, beat, and gang-raped this young
woman, and then put a gun to her head and warned that if she ever uttered a word about it that
they would kill your family first and then kill you. She has since lived in a state of constant
fear. REDACTEDshould be granted asylum based on the severe abuse she has suffered and the
high risk of harm to her physical and mental health should she be forced to return to El Salvador.

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I.

FACTUAL SUMMARY

REDACTEDwas

REDACTED

born on
, 1993 in REDACTED, El Salvador. See Tabs 1 (Birth Certificate)
& 2 (Affidavit of REDACTED
(REDACTEDAff.), 3. On
1
September 30, 2010, when she was 17 years old, she was abducted by eight members of MS-13
as she was walking home from school. See REDACTEDAff., 10. The gang members, who were
carrying guns, grabbed her and said, shut up, be quiet, youre going to walk with us and not say
anything. Id. MS-13 took her to an abandoned house,2 where the men told her to sit in a corner
and be silent, or they would hit her. Id. 12. She soon tried to escape, but did not make it out of
the room before the men caught her. Id. The men punched and kicked her repeatedly on her
shoulders, legs, and sides, and told her to be silent, or they would kill her. Id. One of them said
he wanted REDACTEDto be his girlfriend, and she adamantly refused. Id. 13.
The men, who were drinking hard liquor and smoking drugs, forced REDACTEDto drink a small
amount of the alcohol (only around 3/4 of a glass), and said that it was for her to relax. Id.
She passed out, and the men gang-raped her. Id. 13-14. Afterwards, they threw a bucket of
cold water on her to wake her. Id. 14. REDACTEDfound herself lying naked on the ground, and
bleeding between her legs. Id. As she was lying on the floor, one of the men put a gun to her
head and said if you say anything about this to anyone we will kill your family first and then we
will kill you. Id. REDACTEDtook the threat seriously; she never uttered a word about itnot to
the police, nor even to her family. Id. 2, 9.
Following the rape, REDACTEDwas afraid to leave her house, and hid there for weeks at a time.
Id. 16, 19. But even on the rare occasions when she had to leave her house, she was trailed
and harassed by the MS-13 gang members who raped her. For example, in or around October,
one of her rapists groped her from behind on a public bus on her way home from school. Id.
17. She turned around and recognized the man, and he laughed at her; she immediately got off
the bus. Id. On another day in December, she encountered MS-13 in town. Again they
recognized her, and laughed at her. Id. 19. Further, because the REDACTEDis right across the
street from her house, REDACTEDbelieves that the gang members know where she lives. And on
several other occasions, she has seen her attackers hanging around her house. Id. 18, 20.

In her initial asylum application (I-589), REDACTEDnoted she was raped in September 2009, rather than
September 2010. See REDACTEDAffidavit, 27. She was afraid that the doctors would want to examine her if the
rape had only occurred a few months before, and she did not want to be subjected to that. Id. She was also afraid to
talk about the rape because she was afraid the gang would find out if she talked. Id. At the time, she did not believe
anyone would care whether the dates were accurate or not and this is the only misstatement on her application. Id.
2

She knew it was MS-13, because some of the men had their shirts off, and she recognized their tattoos. Id. 11.

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On December 30, 2010, she saw one of the men who raped her and another MS-13 gang member
drunk outside her house, walking in the direction of a nearby cantina. Id. 20. Within a few
hours, the owner of that cantina was murdered. REDACTEDlearned that he was killed over his
refusal to provide liquor to two intoxicated gang members. Id. REDACTEDbelieves that it was the
same men. Id. This incident confirmed her belief that she had to leave the country if she ever
wanted to be free from their threat. Id.
REDACTEDfears

returning to El Salvador because MS-13 knows they can rape her again at any
time, and that their threat to murder her and her family will keep her silent. Id. 24. She also
fears that the authorities cannot protect her from future assaults. Id. 9. This is why other
young girls like her do not say anything eithera belief that the government cannot protect them
and fear of reprisal. Id. 9. Further, she has reason to believe that MS-13 is looking for her. In
REDACTED
early May, REDACTEDbrother,
, told her that an unidentified man called him in El
Salvador looking for her and asking where she is. Id. 21. She and her brother suspect that it
was MS-13. Id. 21. In the days following, REDACTEDreceived so many harassing calls from that
number, and other unrecognizable numbers, that he had to switch to a new number. Id. 21.
She also fears that MS-13 will punish her for trying to escape from them to the U.S. Id. 25.
II.

COUNTRY CONDITIONS IN EL SALVADOR

A brief look at the country conditions in El Salvador makes two truths plain: 1) gangs dominate;
2) women are dominated. Together, these two facts conspire to make a young woman like
REDACTEDparticularly vulnerable to gang abuse in El Salvador. Gangs, like MS-13 and M-18,
which are predominantly comprised of young males, know that young women are theirs for the
having. Once had, the gangs demand that these young women are theirs forever. Even worse,
this behavior is endorsed by the Salvadoran government, which does not effectively police gangs
or protect women from sexual assault, and is tolerated by Salvadoran society, in which the use of
violence in gender relations is widely perceived as normal.
The Affidavit of Thomas J. REDACTEDPh.D., see Tab 3 ( REDACTEDAff.), provides an excellent
overview of the country conditions of El Salvador, including the prevalence of the MS-13 and
M-18 gangs, the gangs culture, mentality, political agenda, strategy, and tactics, the Salvadoran
governments inability to control them, and the strong correlation between gang affiliation and
violence against women. Furthermore, Dr. REDACTEDconclusion that REDACTEDhas an
extraordinarily high risk of egregious physical harm and, in particular, sexual violence, if
returned to El Salvador, is firmly supported by an abundance of evidence from the U.S. State
Department, the United Nations, Amnesty International, and other official sources.

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A.

Gangs Dominate In El Salvador

El Salvador is one of the most violent countries in the world.3 Its homicide rate is over 65 per
100,000 inhabitants the highest in all Central America.4 Gang violence, in particular, has
plagued El Salvador.5 Some have estimated that between 100,000 and 200,000 gang members
operate throughout Central America, with as many as 20,000 30,000 in El Salvador alone.6
Approximately twelve people are killed each day on average in El Salvador, with gangs
accounting for up to sixty percent of all homicides.7 And REDACTED the canton where Ms.
REDACTEDis from, is significantly more violent than other areas of El Salvador.8
Los Angeles Mara Salvatrucha gang (aka MS-13), and its rival, the 18th Street Gang (aka
Mara 18 or M-18), are by far the two largest gangs in the country.9 Membership in MS-13
and M-18 are predominantly made up of young males,10 who join for easy access to drugs,
alcohol, and frequent sexual relations.11 Because they enjoy almost complete impunity, the
3

Tab 18, UN Human Rights Council, Report of the Special Rapporteur on Violence Against Women, its Causes
and Consequences, Follow-up Mission to El Salvador, U.N. Doc. A/HRC/17/26/Add.2 10 (Feb. 14, 2011) (by
Rashida Manjoo) [hereinafter Special Rapporteur 2011], available at
http://www.universalhumanrightsindex.org/documents/848/2042/document/en/pdf/text.pdf. See also Tab 8,
AMNESTY INTL, ANNUAL REPORT 2011, THE STATE OF THE WORLDS HUMAN RIGHTS, EL SALVADOR COUNTRY
REPORT 135 [hereinafter Amnesty Report 2011], available at http://amnesty.org/en/region/el-salvador/report2011.
4

Tab 18, Special Rapporteur 2011, at 10.

Id.

Tab 11, BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEPT OF STATE, ISSUE PAPER: YOUTH
GANG ORGANIZATIONS IN EL SALVADOR 1-2 (2007) [hereinafter DEPT OF STATE, YOUTH GANGS], available
at http://www.ansarilawfirm.com/docs/DOS-Issue-Paper-El-Salvador-Gangs-June-2007.pdf; Tab 16, CLARE
RIBANDO SEELKE, CONG. RESEARCH SERV., RL34112, GANGS IN CENTRAL AMERICA 5 (2011) [hereinafter CRS
REPORT, GANGS IN CENTRAL AMERICA]; Tab 13, CLARE RIBANO SEELKE, AND PETER J. MEYER, CONG. RESEARCH
SERV., RS21655, EL SALVADOR: POLITICAL, ECONOMIC, AND SOCIAL CONDITIONS AND U.S. RELATIONS 3 (2009)
[hereinafter CRS REPORT, EL SALVADOR], available at http://www.fas.org/sgp/crs/row/RS21655.pdf. See also
REDACTEDAff. at 40.
7

Tab 22, El Salvador Arrests 17 in US Extortion Ring Bust, AGENCE FRANCE PRESS, (May 6, 2011).

Tab 19, Dinorah Azpuru, The Salience of Ideology: Fifteen Years of Presidential Elections in El Salvador, 52
LATIN AM. POLITICS AND SOCIETY 103, n.20 (July 1, 2010) [footnote found on p.16 of Tab 19].
9

Tab 15, OVERSEAS SECURITY ADVISORY COUNCIL, U.S. DEPT OF STATE, EL SALVADOR CRIME AND SAFETY
REPORT 3 (2011) [hereinafter DEPT OF STATE, EL SALVADOR CRIME & SAFETY], available at
https://www.osac.gov/Pages/ContentReportPDF.aspx?cid=10561; Tab 11, DEPT OF STATE, YOUTH GANGS, at
2.
10

Tab 11, DEPT OF STATE, YOUTH GANGS, at 2.

11

Id. at 3.

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gangs do not hesitate to use deadly force.12 MS-13 and M-18 are becoming increasingly
sophisticated and diversified in their operationsthey now engage in drug-trafficking,
kidnapping, contract killings, alien smuggling, trafficking in persons, smuggling of contraband
goods, rape, torture, assault, and extortion, and have strong connections to organized crime
operations.13
Power and control are key elements in gang culture:
Within gang culture being respected is synonymous with being feared
and is based on ones propensity for violence, bravado, audacity, and door-die commitment to the gang and the lifestyle. Together, respect and
reputation constitute fundamentally important elements of gang culture
and members go to great lengths to gain respect and build their
reputation within their own gang, among rivals, and with the public.
Once established, members must preserve their reputation by violently
confronting anyone who challenges them or engages in activities
construed as an insult or act of disrespect, as failure to do so is
ruinous to members status within their own gang, rivals, and the public.14
Fleeing to avoid future persecution is perceived by the gang as an act of disrespect necessitating
a violent and punitive response.15 Therefore, the level of risk to the individual and/or the family
is likely to be substantially higher upon return than prior to their departure.16 Once an individual
is targeted, the gravity of the threat does not diminish across time, even over the course of
years.17
The Salvadoran government is completely unequipped to confront or respond effectively to the
gangs.18 In 2003-2004, the government passed tough anti-gang legislation and tactics known as
Mano Dura (tough or firm hand), but reports show that these have been largely ineffective at
eradicating the gang problem, and in fact murder rates, violence, and gang-related crimes have

12

Tab 15, DEPT OF STATE, EL SALVADOR CRIME & SAFETY, AT 2.

13

Tab 11, DEPT OF STATE, YOUTH GANGS, at 3; see also Tab 16, CRS REPORT, GANGS IN CENTRAL
AMERICA, at 6.
14

Tab 3, REDACTEDAff., 25.

15

Id. at 26.

16

Id. at 27.

17

Id.

18

Id. at 20.

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all increased and remained at elevated levels since their implementation.19 Current governmental
responses, the Proscripcin de Pandillas (Gang Prohibition laws), which is simply Mano Dura
with a new name, likewise fail to comprehensively address any of the root causes of the gang
problem. The laws are ineffective because the Government lacks the capacity and political will
to fulfill them.20 Most individuals arrested under Mano Dura and its progeny are released for
lack of evidence.21 Making matters worse, many wrongfully arrested youths are recruited into
gang life while in prison.22 And since the implementation of Mano Dura, gangs have responded
by declaring war on society, and become more clandestine and organizationally sophisticated.23
In many areas of El Salvador, gangs operate virtual fiefdoms.24 Widespread poverty, social,
economic and political marginalization of large segments of the population, lack of respect for
the rule of law, judicial impunity, cultural norms of domestic violence, and a virtually
uncontrolled proliferation of guns and other weapons all facilitate the growth and spread of
gangs in El Salvador.25 Government corruption and ineffective policing and prosecution are also
serious problems.26 The public has minimal confidence in the judicial system due to lack of
access to justice, lack of accountability, corruption, and because gangs continue to exercise
influence within the judicial system.27 For these reasons, and also because it would predictably
result in violent gang reprisals, the public rarely seeks police support or pursues prosecutions for
the gangs crimes.28

19

Tab 13, CRS REPORT, EL SALVADOR, at 4; Tab 16, CRS REPORT, GANGS IN CENTRAL AMERICA, at 11;
5-12.

REDACTEDAff.,
20

REDACTEDAff.,

21

Tab 13, CRS REPORT, EL SALVADOR, at 4; Tab 16, CRS REPORT, GANGS IN CENTRAL AMERICA, at 11;
7.

13-20.

REDACTEDAff.,
22

Tab 16, CRS REPORT, GANGS IN CENTRAL AMERICA, at 11.

23

REDACTEDAff.,

24

Tab 11, DEPT OF STATE, YOUTH GANGS, at 3.

25

Id. at 2.

9 (since the implementation of Mano Dura the country has experienced significant increases
in gang crime and violence, deterioration of public confidence in government, widespread vigilantism and rampant
extrajudicial execution of known and suspected gang members, and significant disruption of the political discourse
and process.)

26

Tab 10, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEPT OF STATE, EL SALVADOR COUNTRY
REPORTS ON HUMAN RIGHTS PRACTICES 2010 14 (April 8, 2011) [hereinafter DEPT OF STATE, EL SALVADOR
HUMAN RIGHTS], available at http://www.state.gov/g/drl/rls/hrrpt/2010/wha/154505.htm.
27

Id. at 8 (street gang intimidation and violence against witnesses contributed to a climate of impunity from
criminal prosecution).
28

Tab 3, REDACTEDAff., 20.

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Though all who live in El Salvador fear these gangs, women are particularly vulnerable. Women
are raped by gang members, sometimes as part of gang initiation rites,29 and killed in acts of
retribution.30 Gangs in El Salvador are now murdering more women than ever before and the
murders are becoming more brutal.31 Most of the women are raped before they are killed and
bodies recovered show signs of torture.32 In short, there is a strong correlation between gang
affiliation and violence against women; females are generally devalued in gang culture and
gangs justify violence against women using the same cognitive framework as is used for those
who have fallen into disfavor for gang-related incidents.33
B.

Violence Against Women Is Widespread And Accepted

In Salvadoran Culture

Young Salvadoran women are particularly vulnerable to violence and sexual exploitation of the
sort suffered by REDACTED34 Violence against young women in El Salvador is pervasive,
considered normal, and broadly accepted within Salvadoran society and government. 35 In El

29

Tab 11, DEPT OF STATE, YOUTH GANGS, at 5; see also Tab 14, MS-13 Web Site, available at
http://ms13gang.com/MS-13-bio.html ([I]n order to join MS-13 you must first commit a violent act against
someone else either a beating, a rape, or a murder.); Tab 12, Mo Hume, Its as if you dont know, because you
dont do anything about it: gender and violence in El Salvador, 16 ENVIRONMENT AND URBANIZATION 63, 68-69
(Oct. 2004) [hereinafter Hume, gender and violence], available at http://eau.sagepub.com/content/16/2/63
(describing a MS-13 gang initiation rite, in which women are offered two optionsgolpes (being beaten for 13
seconds) or trencito (being gang-raped by 13 men); the women who enter the gang by el trencito are considered not
worth as much as the girls who are beaten and are seen by the men as wanting the act).
30

Tab 11, DEPT OF STATE, YOUTH GANGS, at 5; Tab 20, Ramita Navai, Children are the New Killers in
Ruthless Game with Guns, THE LONDON TIMES, at p.16 (June 11, 2010) [hereinafter Navai, New Killers] (as
one of the victims mothers put it: If the gangs so much as think youve talked to someone about a killing never
mind the police theyll kill you.).
31

Tab 20, Navai, New Killers, at 16 (citing Salvadoran coroner).

32

Tab 17, UN Commission on Human Rights, Report of the Special Rapporteur on Violence Against Women, its
Causes and Consequences, Mission to El Salvador, U.N. Doc. E/CN.4/2005/72/Add.2 24 (Dec. 20, 2004) (by
Yakin Ertrk) [hereinafter Special Rapporteur 2004], available at
http://www.unhcr.org/refworld/docid/42d66e500.html (observing increasing trend of extremely violent murders of
young women from 2002-2003).
33

Tab 3, REDACTEDAff., 28.

34

Tab 18, Special Rapporteur 2011, at 11 (women are patently disadvantaged in all aspects of Salvadoran
society, from education, to employment, to political participation, and thus more vulnerable to violence and
exploitation).
35

Tab 12, Hume, gender and violence, at 63, 67-68 (the use of violence in gender relations is widely perceived in
Salvadoran society as normal; this is not to say that all men engage in gendered violence, but rather, that this
extremism is seen as falling within the accepted boundaries of male behavior).

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Salvador, [d]eeply rooted patriarchal attitudes and the pervasiveness of a machista culture that
reinforces stereotypes about the roles and responsibilities of women and men in the family, the
workplace and society constitute serious obstacles to womens rights, in particular their right to
be free from all forms of violence.36
This machista culture extends to the Salvadoran government and justice system. Quite simply,
the government fails to take violence against women seriously.37 Impunity for perpetrators of
sexual violence crimes is widespread, owing not only to fear of social stigma and revictimization by victims and witnesses, but also to weaknesses in investigation and prosecution
processes.38 In sum, the failure of authorities to . . . investigate, prosecute and punish
perpetrators of gender-based violence [has] contribut[ed] to an environment of impunity that has
resulted in little confidence in the justice system; . . . impunity for crimes, socio-economic
disparities and the machista culture fostered a generalized state of violence, subjecting women to
a continuum of multiple violent acts, including murder, rape, domestic violence, sexual
harassment and commercial sexual exploitation.39
Rape is an especially pernicious and ineffectively prosecuted danger to young Salvadoran
women. Most rapes in El Salvador (more than 80%) go unreported due to societal and cultural
pressures, fear of reprisal, ineffective punishment of offenders, and fear of publicity.40 The result
is a vicious cycle in which women can be repeatedly targeted because of their own reluctance to
report crimes.41 Further, according to several reports, violence against women is now reaching

36

Tab 18, Special Rapporteur 2011, at 11.

37

Of the 2,660 cases of murder of women recorded from 2001 to May 2009, the majority remain under
investigation and unpunished; of the 2,057 cases of sexual violence brought to court in 2008, only 200 have resulted
in convictions. Tab 18, Special Rapporteur 2011, at 61. See also id. at 59 (The pervasiveness of patriarchal
attitudes in the law enforcement and justice system, coupled with a lack of resources and insufficient knowledge on
existing applicable legislation, has led to inadequate responses to cases of violence against women and the persisting
social acceptance of such acts.); Tab 10, DEPT OF STATE, EL SALVADOR HUMAN RIGHTS, at 17 (laws against rape
are not effectively enforced; El Salvadors Office of the Attorney General received reports of 676 cases of rape of
adults from January through July 2009, and only obtained convictions in about 11% of the cases).
38

Tab 18, Special Rapporteur 2011, at 61.

39

Id. at 5.

40

Tab 10, DEPT OF STATE, EL SALVADOR HUMAN RIGHTS, at 17. In 2010, 2,193 cases of rape were reported. Id.
However, police and experts estimate that less than 20 percent of rapes are reported. Tab 15, DEPT OF STATE, EL
SALVADOR CRIME & SAFETY, at 3.
41

Tab 23, Violence Against Women is on the Rise, VOICES FROM EL SALVADORS WEBLOG (March 4, 2011),
http://voiceselsalvador.wordpress.com/category/violence/page/2/ (last visited Aug. 22, 2011).

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epidemic levels.42 Femicides, i.e., brutal killings of women, and sexual violence, have risen
dramatically in El Salvador in the last few years.43 In many of the cases, the women were
abducted and raped and their bodies mutilated.44 The highest levels of sexual violence and
femicides are found among young women aged between 10 and 29 years.45 Again, these crimes
are attributed to El Salvadors growing gang presence, poor gender relations, and a failed
criminal justice system.46
III.

REDACTEDSHOULD RECEIVE A GRANT OF ASYLUM

A.

Past Persecution And Well-Founded Fear Of Future Persecution

The evidence in this case establishes that REDACTEDis entitled to asylum because she has been
persecuted and has a well-founded fear of future persecution.47 A presumption of future
persecution is established if the applicant demonstrates that she has suffered past persecution,
and this presumption is only rebuttable by a preponderance of the evidence that shows changed

42

Tab 21, Hannah Stone, El Salvador Sees Epidemic of Violence Against Women, IN SIGHT CRIME IN THE
AMERICAS (May 23, 2011) [hereinafter Stone, Epidemic], available at http://www.insightcrime.org/insight-latestnews/item/960-el-salvador-sees-epidemic-of-violence-against-women (In the first three months of this year, there
were 160 femicides (i.e. brutal murders of women), putting the country on track for 640 such killings this year
higher than any year since 1999, the first year statistics were kept).
43

Tab 18, Special Rapporteur 2011, at 25-27 (Extremely violent murders of women and girls . . . have
increased alarmingly over recent years . . . reflecting a culture of hatred towards women and an indicator of the
failure of the criminal justice system.).
44

Id. at 26; cf. Tab 8, AMNESTY REPORT 2011, at 135. (in some 477 killings reported between January and
September 2009, a significant rise over the previous year, the women were abducted and raped and their bodies
mutilated; the UN Committee Against Torture thus expressed concern about the various forms of violence against
women and girls).
45

Tab 18, Special Rapporteur 2011, at 22, 26; see also Tab 17, Special Rapporteur 2004, at 24 (observing
increasing trend of extremely violent murders of young women ages 15 to 20 years of age from 2002-2003).
46

See Tab 17, Special Rapporteur 2004, at 15 (there is no doubt that the maras are a source of violence,
including violence against women.); Tab 15, DEPT OF STATE, CRIME & SAFETY, at 2-3; Tab 11, DEPT OF
STATE, YOUTH GANGS, at 5 (noting that there have been reports that female gang members must undergo gang
rape by other members as an initiation rite); Tab 21, Stone, Epidemic ([S]ome femicides are directly linked to El
Salvadors gangs, or maras . . . . [I]n a culture where females are sometimes seen as property, gangs use the killing
and women to strike at their rivals . . . . [S]ome rights groups [have argued] that the killings reflect power relations
between the genders more than organized crime. Where there is a high level of violence, poor and young women
make easy targets.).
47

See 8 C.F.R. 208.13(b); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).

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country conditions such that her fear is no longer well-founded or that she could avoid future
persecution by relocating to another region of her country.48
The past harm REDACTEDsuffered indisputably rises to the level of persecution. She was
abducted, beaten, drugged, and gang-raped by members of MS-13. The Board of Immigration
Appeals and the courts have held that rape alone can constitute sufficient persecution to support
a claim for asylum.49
REDACTEDalso

has a well-founded fear of future persecution by MS-13. To establish wellfounded fear of persecution, an alien seeking asylum need only show that her removal would
create a reasonable possibility, as low as a ten percent chance, of persecution.50
is subjectively genuine and objectively reasonable.51 MS-13 threatened her at
gunpoint that if she ever spoke out about her attack that they would kill her and her family.52
Ever since she was abducted and gang raped, she has lived in a state of constant fear. See
REDACTEDAff., 16, 19 (describing how she hid in her home to the greatest extent possible
until she could escape to the United States).
REDACTEDfear

On the few occasions she had to leave her home, she encountered the MS-13 gang members who
had raped her, and they groped her, laughed at her, and harassed hera clear acknowledgement
that they recognized her and took sadistic delight in having victimized her. See REDACTEDAff.,
17, 19; REDACTEDAff., 32. Having seen them around her apartment, she believes MS-13
knows where she lived, and has been looking for her since she fled the country. See REDACTED
Aff., 18, 21. Further, within a few hours of seeing one of her rapists with another gang
member drunk outside her house, a nearby cantina owner was killed by gang members who had

48

8 C.F.R. 208.13(b)(1)(i); see also Lin-Jian v. Gonzales, 489 F.3d 182, 188 (4th Cir. 2007) (finding that a
claim for asylum based on past persecution does not require the alien to show he or she subjectively fears
persecution in the country of origin).
49

In re D-V, 21 I&N Dec. 77 (BIA 1993) (well-founded fear of persecution in Haiti established by female
applicant who was gang-raped and beaten by soldiers), cited in Zubeda v. Ashcroft, 333 F.3d 463, 473 (3d Cir.
2003); Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir. 1987) (Salvadoran woman raped and brutalized by army
sergeant had been persecuted within terms of the INA), overruled on other grounds, Fisher v. INS, 79 F.3d 955,
9663 (9th Cir. 1996).
50

Crespin-Valladares v. Holder, 2011 WL 546531, at *126 (4th Cir. Feb. 16, 2011).

51

See Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987); Chen v. INS, 195 F.3d 198, 201-02 (4th Cir. 1999) (to
demonstrate well-founded fear of persecution, asylum seeker must establish both genuine subjective fear of
persecution and that reasonable person in like circumstances would fear persecution).
52

See Navas v. INS, 217 F.3d 646, 658 (9th Cir. 2000) (death threats alone can constitute persecution).

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been refused liquor, and she believes that the killers were the same men she had seen outside her
house earlier walking towards the cantina.53
Critically, REDACTEDcould not avoid future persecution by relocating. MS-13 and M-18 exercise
effective control over El Salvador, a country roughly the size of Massachusetts. MS-13 has
become a sophisticated organization, often with connections to organized crime and corrupt
public officials and it maintains a well-established communication network.54 Further, it would
be virtually impossible for REDACTEDto resettle in a new community in El Salvador without
immediately being recognized as a deportee and an unaccompanied young female.55 Without a
family network or protective male presence, she would be particularly vulnerable to gangs and
other predators.56 In addition, for the reasons set forth herein, she is at significantly increased
risk of being subjected to future violence by MS-13 because she has previously been victimized
by the gang and because she fled the country. REDACTEDherself also believes that shed have to
live with her family in REDACTED if she is returned to El Salvador. Given her individual
circumstances, and current country conditions, relocation to another part of El Salvador would be
dangerous and unreasonable.57
B.

REDACTEDPersecution Is On Account Of Her Membership In The Particular

Social Group Of Salvadoran Young Woman Who Refuse To Be Victims Of

Gang Dominance And Sexual Predation
REDACTEDis

unable to return to El Salvador because of past persecution and a well-founded fear

of future persecution on account of two protected grounds. First, REDACTEDpersecution is on

53

REDACTEDis currently seeking professional help to cope with the trauma of her torture. See REDACTEDAff.,
26. REDACTED

REDACTED
54

See Tab 3, REDACTEDAff., 5, 37, 40.

55

See id. 37-41.

56

See id. 36.

57

See 8 C.F.R. 1208.13(b); see also Matter of D-I-M-, 24 I&N Dec. 448, 450-51 (BIA 2008) (factors to be
considered in whether relocation is reasonable include social and cultural restraints, age, gender, social, and familial
ties).

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account of her membership in the particular social group of Salvadoran young women who
refuse to be victims of violent sexual predation by gang members.58
Membership in a particular social group means a member of a group of persons who all share a
common, immutable characteristic.59 The common characteristic that defines the group 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.60 There must be a nexus
between the shared characteristic and the persecution suffered such that the persecutors were
motivated, at least in part, by the immutable characteristic and view the members of the social
group as warranting suppression or infliction of harm.61 The focus should not be on the size of
the social group, but rather on whether the members of that group are sufficiently likely to be
persecuted on account of their group membership.62
Both the BIA and U.S. Federal Courts have stated that, as a matter of law, sex or gender alone
can constitute a particular social group.63 This view is consistent with the view taken by the
Department of Homeland Security64 as well as the UNHCR.65 All the persecution REDACTEDhas
58

See 8 C.F.R. 1208.13(b) (listing membership in a particular social group as one of the enumerated grounds
upon which an applicant may base a claim for asylum); see also Tab 24, Matter of Sandra, Case # A97, U.S.
Immigration Court, Baltimore, Maryland (Nov. 8, 2006) (Sandra) (finding that the respondent properly asserted
that she was persecuted as a member of the particular social group of young women who refuse to be the victims of
violent sexual predation of gang members).
59

Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir. 2011).

60

Id.; Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985).

61

See Lopez-Soto v. Ashcroft, 383 F.3d 228, 236 (4th Cir. 2004); Parussimova v. Mukasey, 555 F.3d 734, 740-41
(9th Cir. 2009).
62

Niang v. Gonzalez, 422 F.3d 1187, 1199-200 (10th Cir. 2005); Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir.
2010) ([W]e have rejected the notion that a persecuted group may simply represent too large a portion of a
population to allow its members to qualify for asylum.).
63

See Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (the shared characteristic may be as innate as sex,
color, or kinship ties) (emphasis added); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) ([T]o the extent that the
petitioner in this case suggests that she would be persecuted or has a well-founded fear that she would be persecuted
in Iran simply because she is a woman, she has satisfied [membership in a particular social group].) (emphasis
added); Mohammed v. Gonzalez, 400 F.3d 785, 797 (9th Cir. 2005) ([T]he recognition that girls or women of a
particular clan or nationality (or even in some circumstances females in general) may constitute a social group is
simply a logical application of our law.); Perdomo, 611 F.3d at 669 (remanding a BIA decision that had decided an
alien could not claim as a cognizable social group all women in Guatemala; the size and breadth of a group does
not preclude it from qualifying as a cognizable social group).
64

See In re: R-A-, No. A 73 753 922, DHSs Position on Respondents Eligibility for Relief, at 20, 22 (Feb. 19,
2004) (gender is clearly an immutable trait and women could constitute a particular social group), available at
http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf.

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suffered, and her fear of future persecution, flow from the fact that she is a woman. She was
kidnapped, beaten, and gang-raped by MS-13 because she is a woman.66
Violence against women is rampant because male offenders, especially gang members, devalue
women and act with near impunity.67 Therefore, women, especially young women in the lower
socio-economic classes, are uniquely and disproportionately vulnerable to rape and other forms
of sexual violence by gangs.68 That a persecutor uses violence to enforce power and control over
the applicant because of her status in society is highly relevant to determining the persecutors
motive.69
Though the fact that REDACTEDis a young Salvadoran woman alone constitutes a cognizable
social group, hers is even more limited and discreet. It does not include all young women in El
Salvador, but only those who have been previously targeted by gang members for sexual
exploitation and who refuse to submit to the advances of these men.70
This social group shares two additional immutable characteristics. First, this social group has a
shared past experience of being victimized by violent sexual predation by gang members.71
Those who have been previously targeted by MS-13 are at exponentially higher risk of physical
harm or death.72 Once a young woman like REDACTEDis subjugated through sexual exploitation
65

See UNHCR, Guidelines on International Protection: Membership of a Particular Social Group, at 4

(HCR/GIP/02/02, 7 May 2002) ([W]omen may constitute a particular social group under certain circumstances
based on the common characteristic of sex, whether or not they associate with one another based on that shared
characteristic.).
66

See Tab 24, Sandra, at p.19 (recognizing, in a similar case, that the rape victim was initially targeted because
she is female, an immutable characteristic).
67
68

See Tab 3, REDACTEDAff., 28.

See id. at 11; supra, n. 40-46.

69

Gafoor v. I.N.S., 231 F.3d 645, 650 (9th Cir. 2000) (Persecutors do not always take the time to tell their
victims all the reasons they are being beaten or kidnap[p]ed or killed. Sometimes, they may not want their motives
known[, but . . . ] the motives may be so clear to both parties that no explanation is needed.), superseded on other
grounds, see Gomez-Mendoza v. Holder, No. 08-70930, 2011 U.S. App. LEXIS 11367, at *3 (9th Cir. May 24,
2011); In re: R-A-, No. A 73 753 922, DHSs Position on Respondents Eligibility for Relief, at 35-36 (evidence that
the abuser uses violence to enforce power and control over the applicant because of social status, which is highly
relevant to motive, may include circumstantial evidence that such patterns of violence are (1) supported by the legal
system or social norms in the country in question, and (2) reflect a prevalent belief within society, or within relevant
segments of society, and that cannot be deduced simply by evidence of random acts within that society).
70

See Tab 24, Sandra, pp. 18-19.

71

See Acosta, 19 I&N Dec. at 233 (the shared characteristic may be as subtle as a shared past experience).

72

Tab 3, REDACTEDAff., 33.

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like MS-13s gang-rape ritual here she forever becomes the sexual property of the gang.73
These rape victims are then subjected to multiple abductions and rapes of increasing brutality,
often culminating in a hideous torture rape in which the victims are murdered and
dismembered.74
In this case, the MS-13 gang members behavior towards REDACTEDafter the rape demonstrates
that they view her as their sexual property. One of her rapists groped her on a public bus. On
several occasions, they laughed at her, acknowledging that they recognized her and took sadistic
delight in having victimized her. They were seen loitering around her apartment. REDACTED
suspects that they are looking for her. Though REDACTEDdid not give MS-13 another
opportunity to re-assert their ownership over her through another act of sexual violence she hid
in her apartment as much as possible until she could escape to the United States it would only
have been a matter of time had she stayed in El Salvador.
Second, the social group has a defining immutable and fundamental characteristic in that its
members refuse to submit to the gangs demands. The recent case of In the Matter of Sandra,
Case # A97, U.S. Immigration Court, Baltimore, Maryland (Nov. 8, 2006) [see Tab 24], though
non-precedential, illustrates why her refusal to submit is relevant to her social group. In Sandra,
the young woman was told by a gang member that he wanted to be her boyfriend. Id. at 16. He
assaulted her physically and sexually. Id. The gang member followed her regularly and he was
sometimes accompanied by other gang members. Id. Further, he held a knife to her body
several times and threatened to kill her. Id. She finally fled her country, and believed that if she
went back, the man would kill her. Id. at 6.
The Sandra court accepted the same particular social group being asserted here:
Respondents opposition to being raped or otherwise sexually subjugated
[by M 18] could certainly be characterized as so fundamental to her
conscience that it ought not be required to be changed. Likewise . . . the
penalty for . . . not complying with the demands of the gang members
would be severemost likely rape or even death. Respondent and others
in this particular social group should not be forced to decide between

73

See id. 34; see also Tab 25, In the Matter of __, U.S. Immigration Court, Baltimore, Maryland (May 2, 2011)
(citing expert opinion of Tom REDACTED(respondent demonstrated that she was persecuted on account of her
membership in the particular social group of Salvadoran women who are viewed as gang property by virtue of the
fact that [they were] successfully victimized by gang members once before.).
74

See REDACTEDAff., 33-35.

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becoming victims of gang members sexual demands and the
consequences for not complying. Id. at 19 (emphasis added).75
Like in Sandra, REDACTEDrefusal to be a victim of past or future persecution by MS-13
demonstrably contributes to her persecution. Eight armed and dangerous gang members
kidnapped her to an abandoned house. Once there, at the risk of her life, she resisted them by
trying to escape. She paid the price: she was beaten and told to shut up or she would be killed.
In addition, one of the men said, I want you to be my girlfriend, i.e., my property. She
denied him, again at the risk of insulting the gang, and was subsequently gang raped. She then
had a gun held to her head and was told that if she said anything about what had happened to
anyone, they would kill her family and then her. Knowing the police would not protect her, she
did not report her attack. Nor did she tell her family about it to protect them from MS-13s
reprisal. Ultimately, REDACTEDrefusal to be subjugated through a lifetime of sexual violence is
manifested by her escape to the United States. In MS-13 gang culture, fleeing or going into
hiding to avoid future persecution is perceived as a challengean insult and act of
disrespect which necessitates a violent and punitive response.76 REDACTEDrefusal to be a
victim is thus fundamental to her identity and conscience.
C.

REDACTEDPersecution Also Is On Account Of Her Political Opinion

REDACTEDhas

also suffered past persecution, and will likely be subjected to future persecution,
on account of an imputed political opinion. Persecution can occur where the persecutor imputes
or attributes to the victim certain political opinionseven where the victim does not hold or has
not expressed such opinions.77 The applicants own beliefs are unimportant; the focus is on the
subjective belief of the persecutor, that is, whether the persecutor attributes a political view to the
victim and acts on that attribution. Importantly, most acts of persecution involve more than one

75

See also Fatin v. INS, 12 F.3d 1233, 1241 (3rd Cir. 1993) (finding that a social group defined as those Iranian
women who find [gender-specific religious laws] so abhorrent that they refuse to conform despite enormous
penalties for non-compliance could be a social group because if her opposition was so profound that she would
choose to suffer the consequences of noncompliance, her beliefs may well be so fundamental to her identity or
conscience that they ought not be required to be changed).
76

Tab 3, REDACTEDAff., 26-27.

77

Singh v. Gonzales, 406 F.3d 191, 196-97 (3rd Cir. 2005), superseded on other grounds, see Ndayshimiye v. AG
of the United States, 557 F.3d 124, 129 (3d. Cir. 2009); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997); Morales
v. INS, 208 F.3d 323, 331 (1st Cir. 2000) (There is no doubt that asylum can be granted if the applicant has been
persecuted or has a well-founded fear of persecution because he is erroneously thought to hold a particular political
opinion.); In re S-P-, 21 I&N Dec. 486, 489 (BIA 1996) (persecution for imputed grounds, e.g., where one is
erroneously thought to hold particular political opinions, can satisfy the refuge definition).

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motive. REDACTEDimputed opinion need not be the only reason for her persecution, so long as
the imputed political opinion is one central reason for an asylum applicants persecution.78
The actions of women, whether organizationally or individually, who resist or defy cultural
practices in their country, should be seen as expressing political opinions.79 Lazo Majano v. INS,
813 F.2d 1432 (9th Cir. 1987) is both analogous and instructive. There the court decided
whether a woman who had been bullied, beaten, raped, and enslaved by a man had been
persecuted due to a political opinion. The court stated:
[I]f the situation is seen in its social context, Zuniga is asserting the
political opinion that a man has a right to dominate and he has persecuted
Olimpia to force her to accept this opinion without rebellion. . . . [His
statements and actions] reflect[] a . . . generalized animosity to the
opposite sex, an assertion of a political aspiration and the desire to
suppress opposition to it. Olimpia was not permitted by Zuniga to hold an
opinion to the contrary. When by flight, she asserted one, she became
exposed to persecution for her assertion. Persecution threatened her
because of her political opinion.80
As discussed above, rape is about power and control. Like the man in Lazo Majano, MS-13
asserted its opinion that men have a right to dominate women and attempted to force REDACTED
to accept that opinion without rebellion. REDACTEDasserted a political opinion to the contrary
when she fled. In El Salvador, a woman who flees to escape physical and sexual coercion
designed to force her to submit to male domination expresses a political opinion. Exaggerated
sexual prowess and violence against women are central to mens identities in that country,81
especially in gang culture, and extreme violence is reinforced by deeply-rooted gender
stereotypes and tolerated by the Salvadoran people and government.82 REDACTEDpolitical
78

See 8 U.S.C. 1158(b)(1)(B)(i); Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir. 2009). The BIA has
interpreted 8 U.S.C. 1158(b)(1)(B)(i)s one central reason standard to mean only that the protected ground
cannot be incidental, tangential, superficial, or subordinate to another reason for harm. In re J-B-N-, 24 I&N Dec.
208, 214 (BIA 2007). Cf. Ndayshimiye, 557 F.3d at 129 ( a persecutor may have more than one central motivation
for his or her actions; whether one of these central reasons is more or less important than another is irrelevant.).
79

ROBERT JOBE, MARK SILVERMAN & LARRY KATZMAN, ASYLUM AND RELATED IMMIGRATION PROTECTIONS 421 (8th ed. 2009).
80

813 F.2d. at 1435 (emphasis added), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996).

81

See Tab 12, Hume, gender and violence, at 67 (explaining that the men interviewed in her study of gender and
violence in El Salvador felt more manly as a result of threatening and beating women, never giving in, being brave,
having sexual relations with many women, leaving women pregnant, having lots of children, feeling more important
than other men, being proud.).
82

Tab 18, Special Rapporteur 2011, 11.

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opinion is further evidenced by her refusal to become the MS-13 gang members girlfriend, her
attempted escape from the abandoned house, and her act of hiding in her apartment until she
could escape. And thus, REDACTEDhas suffered past persecution and reasonably fears future
persecution on account of her anti-gang/anti-machista political opinion that MS-13 gang
members do not have a right to dominate and possess women.
IV.

CONCLUSION

REDACTEDhas

demonstrated that she fulfills the definition of a refugee pursuant to INA

101(a)(42)(A) based on her past persecution and her well-founded fear of future persecution on
account of her membership in a social group of Salvadoran young women who refuse to be
victims of violent sexual predation by gang members, and her anti-gang/anti-machista political
opinions. Moreover, relocation to another part of El Salvador would be dangerous and
unreasonable, and there has been no fundamental change in country conditions in El Salvador or
REDACTEDcircumstances such that her fear of persecution is no longer well-founded. There are
no negative factors to consider in her case. For these reasons, we respectfully request that
REDACTEDapplication for asylum be approved.

Sincerely,

Daniel P. Schaefer
(202) 420-3567 direct dial
schaeferd@dicksteinshapiro.com

Jonathan D. Uffelman
(202) 420-3021 direct dial
uffelmanj@dicksteinshapiro.com

DPS/cnm
Enclosures

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