Nationals of Central American countries have crossed the Southern border into the United States for years. In the late 1980s and early 1990s, Salvadorans fled their home to escape a long and brutal civil war. Starting in the 2000s, the usual reason for Salvadorans to leave home became to escape drug trafficking and violence from gangs.
Asylum claims from Central America have been on the rise again in recent years. A 2013 article reported that two thirds of the more than 19,119 asylum requests were from El Salvador, Honduras, and Guatemala. (See Immigrant Asylum Requests on the Rise in the U.S., by Alicia A. Caldwell, The Huffington Post, July 16, 2013.) And in 2012, a reported 36,026 Central Americans stated that they left their country in fear. (See Hoping for Asylum, Migrants Strain U.S. Border, by Julia Preston, The New York Times, April 10, 2014.)
Many Salvadorans try to gain asylum in the United States because they have been harmed or fear harm by criminal gangs, who forcefully recruit certain populations and harm those who resist. Although Salvadorans who were persecuted by gangs can win asylum in the U.S., a lot depends on whether the claim is heard by an Immigration Judge or an Asylum Officer, and which judge or officer hears the claim.
The odds of winning asylum from an Immigration Judge appear to be low, with the court typically approving only about a third of the cases it hears.
Most Salvadorans are caught by U.S. Customs and Border Protection (CBP) and detained after crossing the Southern border with Mexico. In these cases, the law requires that the government agent ask whether the person is afraid to return to his or her country.
If the answer is “yes”, the person may be detained until an asylum officer conducts a “credible fear” interview. This credible fear interview is different than an asylum interview. (You cannot apply for asylum directly with the government if you have been caught.) If the officer conducting the credible fear interview decides that the detainee has a genuine fear, the detainee will be allowed to ask an immigration judge for asylum.
During the civil war in El Salvador, which ended in 1992, many asylum applicants were granted asylum after having suffered persecution. In fact, Salvadoran and Guatemalan asylum claims during that time were the reason for the eventual creation of the Nicaraguan Adjustment and Central Relief Act (NACARA) in 1997. This Act allows certain Salvadorans and Guatemalans to apply directly for a green card. Some Salvadorans still claim harm or fear of harm on account of being targeted during the civil war.
The most common type of claim currently heard from Salvadorans is based on harm or fear of harm by criminal gangs that the government of El Salvador cannot control. Criminal gangs such as the Maras rely on forced recruitment to expand their membership. They often target specific groups of people, particularly people who are poor or otherwise marginalized, to recruit. Gangs also harm people who refuse to join them. They also harm those former gang members who try to leave the gang. Many Salvadorans apply for asylum because they have been harmed or fear harm for refusing to join gangs or for leaving the gang.
If you are applying for asylum because you suffered harm in the war many years ago, it will be challenging to prove that you have a well-founded fear of future persecution in El Salvador. This is because there have been many positive changes in El Salvador, including a democratic government with free elections.
If you were harmed or fear harm because of gang activity, you will have to show that your persecution was based on one of "five grounds." One possibility is to explain why you were targeted as a member of a “particular social group,” which broadly means that your persecutors targeted you due to a characteristic you cannot or should not have to change. Another possibility is to show that you were targeted based on political opinion, for example if you had been publicly or vocally anti-gang.
Salvadorans who left home years ago because of the war will have to prove that they still fear harm even though conditions in that country have changed. As long as you can show that you suffered serious harm on account of your race, religion, nationality, membership in a particular social group, or political opinion, there are a few ways you may be able to overcome the changes in your country.
If the persecution you suffered was severe, the judge or officer might decide that you shouldn’t be forced to return home even though you could probably do so safely. You can also win asylum if you have suffered persecution in the past and can prove that you fear “other serious harm,” such as criminal activity or even natural disasters.
For Salvadorans who are claiming asylum based on gang activity, it is important to explain why you were targeted. If you are claiming to be a member of a particular social group, you will have to show the judge or officer that you have an immutable characteristic that defines you and the group. For example, being a former gang member is an immutable characteristic—you can never change the fact that you were once in the gang. Another example of an immutable characteristic shared by your group could be that you resisted joining the gang or that you witnessed criminal activity.
It is a good idea to consult with an experienced immigration lawyer to help you with your asylum claim.