As the 60th Anniversary of the 1951 Convention Relating to the Status of Refugees approaches, the United Nations High Commissioner for Refugees (UNHCR) has affirmed its commitment to better address protection gaps created by modern forms of forced displacement.
The 1951 Convention was designed to protect European refugees in the aftermath of World War II. Later, the 1967 Protocol expanded the scope of the 1951 Convention to address the problem of displacement around the world. Today, rapid population growth, urbanization, and climate change are contributing to increased levels of conflict and forced displacement around the world. However, the Convention and Protocol only cover a limited number of those who are forcibly displaced and seeking protection under these circumstances.
Fortunately, the "refugee" definition in the 1951 Convention has been interpreted relatively broadly by many courts, helping to address asylum needs for many populations. During his recent visit to the nation's capital, UN High Commissioner António Guterres commended US courts for their broad interpretation of persecution based on one's membership to a "particular social group." He referred to recent improvements in protection for persecuted members of the LGBT population and families targeted by violent groups.
Others aren't as lucky. Often, circumstances of a person's suffering are too blurred to clearly establish a claim for asylum. Additionally, it can be difficult to grant protection to people who are not persecuted directly by the government. As increasing numbers of displaced people flee violence and circumstances beyond their control, the need to expand the interpretation of "refugee" to better address all forms of forced displacement is apparent.
Gang-related violence, particularly in El Salvador, Honduras, Guatemala, and some areas of Mexico, is a growing concern. Gangs and organized criminal groups have effectively taken control over some regions of Central America, intimidating and brutalizing those who oppose their efforts or refuse to join them. Despite clear evidence of persecution, US immigration courts have largely denied gang-based asylum claims because it is nearly impossible to identify a state actor responsible for the persecution. Applicants must demonstrate that the government was unable or unwilling to control the gang violence. To complicate matters, in 2008, courts imposed new, restrictive, requirements on gang-based asylum claims. Applicants must now demonstrate that their social group was sufficiently "socially visible." Such a requirement would be difficult to prove and dangerous for most applicants, given that many are attempting to keep their social, national, religious, or political identities secret in order to avoid detection and punishment.
There is good news though. Recently, the Board of Immigration Appeals reopened Matter of S-E-G-, a 2008 case that set new restrictive precedents regarding gang-based asylum claims. Immigration advocates are hopeful that the outcome will bring clarity to this complex issue, and enable the outdated "refugee" definition to protect yet one more group of forcibly displaced persons.