Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008)

Time and time again, the Board of Immigration Appeals (BIA) have shot down that affiliation with a gang, or non-affiliation of a gang, cannot be classified as a member of a social group for purposes of Asylum Applications and Withholding of Removal. In a decision dated May 3, 2005, an Immigration Judge found the respondent removable but granted his application for asylum pursuant to section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2000 & Supp. V 2005). The Department of Homeland Security (“DHS”) has filed a timely appeal contesting the Immigration Judge’s grant of asylum. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings and for the entry of a new decision.

(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.

(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect perception by others that he is such a gang member.


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