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Berkeley La Raza L.J.


In July 2008, the Board of Immigration Appeals (BIA)1 affirmed an Immigration Judge’s (“IJ”) denial of asylum to three young Salvadoran siblings fleeing gang violence and threats. This decision affects the likelihood that other youth and their family members fleeing gang violence will gain protection in the United States. The reach of the BIA decision in Matter of S-E-G-2 stretches far beyond the facts of the actual case or gang cases in general and may shape the future of asylum based on membership in a particular social group. The BIA published Matter of S-E-G- as one of only 36 precedent decisions in 2008, making the decision binding on all IJs as well as the BIA itself.3 The decision is important, as it appears to elevate the notion of “social visibility” from a factor in the determination of a particular social group to a requirement. This article examines how Matter of S-E-Ghas affected the legal landscape with regard to asylum claims based on particular social group. Part I of this paper provides a brief background on the Central American gang problem. Part II briefly examines the state of the U.S. law on social group prior to S-E-G-. Part III summarizes the decision itself, analyzes the problematic elements of the decision, and provides an update as to the current status of the case. Part IV examines U.S. case law following S-E-G- in the Circuit Courts of Appeal. Part V presents an analysis of the potential impact of S-E-G- on other social group cases. Part VI explores recent Canadian jurisprudence on gang-related persecution claims, while the conclusion suggests how advocates and judges can move past S-E-G- to carefully consider gang-related cases.