Anti-Gang/Guerrilla Opinions are Political Opinions

Mahalia Kahsay
Third-year student at the University of Michigan Law School.

Opinions about gang or guerrilla (“gang”) activities, evidenced by refusing to join, cooperate, or assist gangs, qualify as “political opinions” under the Refugee Convention (“the Convention”). Adjudicators examine these opinions from the perspective of the applicant; when adjudicators fail to recognize these opinions as political, they deny some deserving applicants protection the Convention guarantees. Adjudicators should apply a broad, contextual approach to assess the claims of applicants who exhibit anti-gang behavior. Under this approach, adjudicators will find that the category of political opinion captures this behavior.

The Leading Approaches from UK and U.S. Caselaw

The two cases that created the current legal framework to assess gang-based political asylum claims come from the United Kingdom and the United States.  In Emilia Del Socorro Gutierrez Gomez v. SSHD, the UK Immigration Appeal Tribunal (“Tribunal”) dismissed the applicant’s appeal for asylum, in part because they found she did not hold a political opinion. After Gomez, a Colombian law student, provided free legal services to investigate a rural farmer facing extortion from guerrillas, armed men visited her at work and on another occasion chased her on motorcycles. On several occasions, they also made threatening phone calls to her home. Gomez subsequently fled to the UK and applied for asylum.

The Tribunal, assessing her claim on the basis of political opinion, concluded that when the persecutors are non-state actors, “politics at the ‘micro’ level must in some meaningful way relate to politics at the ‘macro’ level.” The Tribunal observed that even if persecutors know the political opinions of their victims, “it may not always be the political opinion that motivates the persecutors’ actions.” It also found that Gomez did not have “a political opinion attributed to her.” Rather, the guerrillas “had a vested political interest in maintaining their economic operations in that area.”

In INS v. Elias-Zacarias the Supreme Court of the United States found the Guatemalan applicant’s motive for resisting guerrilla recruitment insufficiently political because the guerrillas did not believe Elias-Zacarias refused to join for political reasons. Armed guerrillas attempted to recruit Elias-Zacarias, but he refused because he believed the guerrillas were “against the government and because he was afraid that the government would retaliate against him and his family if he did join the guerrillas.” The Court concluded, “since the statute makes motive critical, [Elias-Zacarias] must provide some evidence of it, direct or circumstantial.”

Today, U.S. adjudicators interpret Elias-Zacarias to mean that without additional evidence that the victim’s political opinion motivated the gang, the applicant cannot qualify for asylum under the political opinion ground of the Convention.[1] Accordingly, the U.S. Board of Immigration Appeals maintains, “refusal to join [a gang] without more, does not constitute a “political opinion.”[2]

Because of the Gutierrez Gomez and Elias-Zacarias holdings, adjudicators in the UK and U.S. are effectively precluded from simply taking applicants at their word about their own political opinions. Even if contextual evidence points to an imputed political opinion—perhaps based on anti-extortion investigatory activities—the adjudicator may avoid examining the political nature of the victim’s opinion and simply conclude the motivation for the persecution was purely economic. These interpretations do not align with the Convention’s object and purpose.

Defining Political Opinions

A political opinion is an opinion of a political nature. An opinion is defined by the Michigan Guidelines as a “conscious choice or stance.”  Refugee law scholars have defined political as “about the nature, policies, or practices of a state or of an entity that has the capacity, legitimately or otherwise, to exercise societal power or authority.” Even though there are relatively straightforward definitions of “political” and “opinion” available, states continue to advocate for both narrow and comprehensive approaches to defining “political opinions” as a whole.[3]

Amidst concerns that one definition or another may fail to capture all true political opinions, a functional definition of political opinion should consider the context of the individual applicant. Under this broad contextual approach, the words “opinion” and “political” work together to create a more inclusive definition in line with the context, object and purpose of the Convention.

As a result, asylum claims based on persecution by gangs require a contextual focus. The UNHCR suggests examining people who resist or oppose gang activity amidst their “specific country and societal contexts.” For gang based claims by applicants from  Central America specifically, the UNHCR suggests a political opinion may exist where a person is “ideologically opposed to the practices of gangs and the gang is aware of his/her opposition.” Thus, if a person refuses to join a gang for personal reasons, his or her neutrality can count as “a conscious and deliberate choice” that may qualify as a political opinion. Additionally, some courts view indifference no differently than active activity. For example, in RT Zimbabwe, the UK Supreme Court found no support “for a distinction between the conscientious non-believer and the indifferent non-believer.”

Importantly, a contextual approach allows the decision-maker to examine whether an applicant’s opinion qualifies as political in light of the political climate and the power structure between the state and the gangs. As refugee law scholar Dauvergne argues, “turning to context ought to involve considering the power dynamics that surround any expressed or imputed view, and considering how those dynamics link, or fail to link, to formal authority within the relevant state.” When adjudicators fail to recognize how powerful gangs truly are, they are prone to mischaracterize the political nature of a gang’s agenda and label anti-gang opinions as simply anti-crime opinions.

Adjudicating Political Opinions: “Unexpressed” and “Imputed” Political Opinions

Universally, adjudicators frequently assess two types of political opinions: unexpressed political opinions and imputed political opinions. To demonstrate an unexpressed political opinion, an applicant must first prove she has a political opinion; to demonstrate an imputed political opinion, an applicant must show the gang attributed an opinion to her regardless of her actual political opinion. In either case, an applicant need not show actual political activities or actions.[4] After finding either type of political opinion, the adjudicator looks for a nexus to link the opinion to the persecution.[5]

Behaviors which imply anti-gang opinions may also notify gangs of an applicant’s unexpressed political opinion. The UNHCR specifically addressed imputed political opinions when applicants refuse to comply, cautioning that “[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.” As a result, an applicant’s attempt to stay out of trouble and remain neutral can become an act of opposition against the gang. The applicant becomes a dissident and her opinion a threat to the gang’s economic and social, and therefore political, aims.

The Consequences of Conflating the Nexus and Political Opinion Elements

In determining whether an applicant fits into the political ground for refugee status, adjudicators should first assess if a political opinion exists. Skipping this step may lead adjudicators to confuse the applicant’s showing of a political opinion with their showing of the causal connection between that political opinion and the risk of being persecuted, like the Tribunal in Guiterrez Gomez. In Gutierrez Gomez, the Tribunal allowed the persecutors’ motivations to determine the entire scope of their conflict with Gomez. The Tribunal failed to examine the context and circumstances that suggested power and politics played a role, any role, in the conflict. Rather, it reasoned that because economic and/or social gain motivated the persecutors, politics must not have played a part. The Tribunal’s reasoning here is circular: because the guerrillas sought economic security and social power through criminal activity, their criminal activities were not political; therefore, the guerrillas imputed only anti-crime opinions to all opponents. This holding swept away any chance of finding a political opinion from circumstantial evidence of the persecutors’ motives.

In Elias-Zacarias, the Court held that the “mere existence of a generalized ‘political’ motive” underlying the recruitment was insufficient to establish fear on account of political opinion. The lower courts interpreted this holding to require “that an alien seeking asylum on these grounds must prove by ‘some evidence,’ direct or circumstantial, that ‘he has a well-founded fear’ that the guerrillas will persecute him because of that political opinion.” Thus, the U.S. courts allowed the question of causation to cloud its analysis of whether a political opinion existed in the first place.

Recommendations

Adjudicators must properly assess each element of a political opinion claim one step at a time to avoid conflating the nexus and political opinion elements. First, is there an opinion? Second, if there is an opinion, is it political? After finding a political opinion, the adjudicator should then assess the causal connection between the political opinion and the risk of being persecuted. Under this approach, courts should not immediately exclude opinions that are not easily classified as political or not.  Instead, anti-gang opinions may qualify as political if they engage “the machinery of state, government, and policy.”[6] As UNHCR acknowledges, when gangs exercise significant political power in society, refusal to cooperate may be interpreted as political neutrality. By linking political to “the machinery of the state” opinions against those in power—in this case, gangs and guerrillas—become political. From this perspective, applicants who live under the control of gangs they oppose hold an opinion about the very political systems that control their lives. As a result, their opinions about these gangs are political.

The main inquiry of the political opinion ground is not the gangs’ motive for targeting the applicant, but whether the applicant’s refusal to cooperate with them stems from a political opinion. This opinion may include a disapproval of the political and social power the gangs use to conduct criminal activities. The gang may also impute these particular opinions to the applicant even if s/he does not necessarily hold them. For example, the Tribunal in Gutierrez Gomez acknowledged that if the persecutor is motivated “by an intention to stifle [the victim’s] beliefs, the opinion being imputed can be seen as political, at least where the state authorities are unable to afford effective protection against such actions.”

The Tribunal in Gutierrez Gomez effectively requires claimants to read the minds of their persecutors to know the motivation for the persecution. Despite the Tribunal acknowledging the need to examine “the particular society concerned” and its finding that the FARC exercised serious control in Colombia, the Tribunal still dismissed Gomez because she was an insignificant actor without a political profile. Despite suggesting the guerrillas had political views about their targets, the Tribunal reasoned away any chance of finding an imputed opinion by concluding such views may not always motivate the guerrillas’ actions.

A better approach would take the U.S. Supreme Court at its word and follow its holding in Elias-Zacharias more literally. Adjudicators should not require explicit direct or circumstantial evidence that transcribes the minds of the gang. Rather, adjudicators should examine the context and acknowledge that in certain societies, anti-gang opinions can be sufficient to establish political opinions. Explicit refusal to cooperate with gang demands, as Gutierrez Gomez experienced, was enough to make the guerrillas view her as a threat. Even if the adjudicator does not accept that Gomez’s behavior stems from an actual political opinion, her behavior implied to the guerrillas that she fostered anti-gang beliefs; her actions threatened their economic, social and therefore, political power.

Adjudicators owe such applicants due diligence in examining how their opinions implicate the political power structures at play in their own specific contexts. A step-by-step contextual analysis will help ensure adjudicators do not conflate the finding of a political opinion with its nexus to persecution and will assist the adjudicators in properly analyzing whether the applicant has a well-founded fear of persecution for reasons of political opinion as the Convention requires.

 


[1] Tecun-Florian v. INS, 207 F.3d 1107, 1109, 1112 (9th Cir. 2000) (Ferguson, J., dissenting) (“Elias-Zacarias does not stand for the general proposition that persecution following a refusal to assist can never constitute a basis for seeking asylum.”).

[2] Matter of E-A-G-, 24 I&N Dec. 591, 596 (BIA 2008).

[3] See also VNAY v. MIMIA, 2005 FCAFC 96 (Aus. FFC, May 13, 2005) [27] where the Federal Court of Australia refuted both attempts to create a “comprehensive definition” and broad definitions, because political opinions are “probably narrower than the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society.” See also Ward v. Canada [1993] 2 SCR 689 at 746 (Can. SC, 1993) where the Supreme Court of Canada adopted Goodwin-Gill’s definition which includes “any opinion on any matter in which the machinery of state, government, and policy may be engaged;” UNHCR adopted the same definition in the Division of International Protection’s “Guidance Note on Refugee Claims Relating to Victims of Organized Gangs.” Mar. 2010 [45].

[4] Hathaway & Foster, The Law of Refugee Status, 363, 407 (2014).

[5] Hathaway & Foster, supra note 4, at 363. For the purpose of this note, I will not address nexus, the causal relationship requirement, for either unexpressed and imputed political opinions.

[6] Hathaway & Foster, supra note 4, at 406 (quoting Goodwin-Gill & J. McAdam, The Refugee in International Law 87 (2007)).

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