At 16, Daniel Sierra Cruz admired the 18th Street gang that controlled his hillside neighborhood in Tegucigalpa, Honduras. Their fashionable clothes, flashy phones and cars made gang members the envy of the younger crowd. He knew some gang members from the neighborhood and others from school, and after a year of tagging along with them, they asked him to help with a few tasks. His first mission: to deliver drugs to high-ranking members incarcerated outside the city. Soon enough, he was regularly serving as a scout during drug sales in parks and dance clubs.

“Life is just easier when you’re with them. They told us that with them we could earn in one day what we would earn in one week after finishing school and finding a regular job,” Daniel, now 19, said while sitting on bench in Bryant Park one recent day in Manhattan, where he now lives with an uncle and his family.

Once when gang members solicited volunteers for a robbery, Daniel dodged the call. But when the proposition resurfaced weeks later, he left Tegucigalpa and traveled alone to his grandparents’ house outside the capital. He hoped the two months he stayed there would ease the pressure he felt to participate in the crimes. Shortly after he returned, while sitting on the front step of a corner house the gang inhabited, other gang rookies relayed stories of the bloody fate of recruits who had refused gang dictates or simply failed to inform the gang of their whereabouts. The stories, Daniel knew, were warnings.

“When you start to run with the gang you learn that you have to obey when they tell you to go somewhere or do something. They make it clear that if you don’t you will face the consequences. You do what you’re told for fear they will hurt you or your family,” Daniel said.

At dawn on March 12, 2006, Daniel and four friends –who were not fleeing gangs– left for the United States on a six-week journey by foot, train and raft across the mountainous terrain and rivers of Central America and Mexico.

Daniel is among a growing number of Salvadoran, Honduran and Guatemalan youth – many of them minors – running from gangs and seeking asylum in the United States, a noticeable trend that’s developed over the past three years, according to attorneys and researchers. Such claims pose new challenges for federal asylum law and are compelling judges to consider the petitioners’ official status as children.

While he waits for his asylum hearing next month, Daniel shadows his uncle, a superintendent for the Morningside Heights building where they live, and helps with cleaning, plumbing and painting around the building.

Not far from his new residence, walking on a patch of grass along a bike path sandwiched between the Hudson River and the Henry Hudson Parkway at around 120th Street, Daniel says he likes the United States and hopes the judge will allow him to stay.

“I like to come to the park and think. I don’t have to worry about getting robbed,” Daniel said, enjoying the peaceful sight of a 20-something man sitting on a rock, absorbed in a book.

He’s made a few acquaintances but no real friends in New York. “It’s hard to know who to trust,” Daniel said. He prefers to stay home watching music videos or wrestling matches, in part because he fears being caught for any small infraction, like jaywalking, could compromise his chance of staying in the U.S.

“At first he didn’t want to go out at all,” said Joel Zepeda, Daniel’s uncle. “I told him he should greet neighbors and familiarize himself with his surroundings. Not to isolate himself. It’s not healthy,” he said.

In the evenings, he heads to a local public school where Columbia University and Community Impact, an independent nonprofit, jointly offer ESL classes Monday through Thursday.

The outlook for Daniel is not clear. Attorneys who represent asylum seekers in New York City and nationwide agree that the number of gang-related asylum claims have increased rapidly and are very difficult to win.

Then again, “it’s an uphill battle to win asylum in every case,” says Georgetown Law professor Philip G. Schrag, who co-authored a study revealing the wide disparity in asylum adjudication across the U.S.

Refuge in New York

According to Alexandra Goncalves of Central American Legal Assistance (CALA), a nonprofit legal service provider in Williamsburg, her small office of four staff attorneys is currently handling 25 to 30 active gang-related asylum cases, or around one-third of CALA’s entire caseload. It has won asylum in just four cases during the past three years.

“The law is very strict, but is also developing in many ways,” Goncalves said. As attorneys present claims and judges accept or reject them, setting small precedents, failed arguments are shed and successful ones preserved. While few courts have granted asylum in gang-related cases, most judges are reluctant to accept that gang recruits are not simply victims of generalized violence, something asylum law does not protect.

Like Daniel, a majority of asylum-seekers escaping gangs flee because they refuse to join the ranks of the region’s two most powerful gangs.

Ironically enough, the growth of these gangs – the 18th Street gang and the Mara Salvatrucha (or MS-13), known in the region as “maras” – in Central America in the late 1990s is generally attributed to the enactment of two laws in the U.S. in 1996.

The Illegal Immigrant Reform and Immigrant Responsibility Act along with the Antiterrorism and Effective Death Penalty Act increased the federal government’s ability to deport immigrants convicted of various felonies. Thus a mass exportation of felons and gang members from North to Central America began.

Where deportation based on criminal conviction previously had been limited to violent offenses and mostly exempted immigrants with permanent resident status, the 1996 laws rendered a larger number of people deportable. They also stripped judges of some discretionary power to make exemptions. Some 2,449 Central Americans were deported from the U.S. in 1996, compared with an average of 6,600 annually in subsequent years, according to Department of Homeland Security figures.

Many of the young Central American deportees belonged to one of these two rival gangs, both of which had formed in Los Angeles a decade earlier. They were largely the children of Central American families who had fled the region’s military conflicts in the 1980s, settled in Los Angeles and later came of age on the gang-ridden streets of L.A.’s Pico Union neighborhood.

The result was the transplanting of U.S. gang culture to Central America, where the residual effects of armed conflicts combined with poor social conditions turned gangs, which had been only a marginal problem since the 1970s, into one of the region’s most acute social ills.

Government officials, scholars and researchers estimate current gang membership throughout Central America to be anywhere from 25,000 to 300,000, depending on the operative definition of a gang. The Congressional Research Service estimates the combined membership of MS-13 and 18th Street gangs in the United States to be approximately 40,000, while East Coast Gang Investigator’s Association deputy director Lou Savelli estimates some 2,500 Central American gang members are in New York City.

Salvadoran, Guatemalan and Honduran leaders have responded to the gang proliferation by passing anti-mara laws that grant police the latitude to arrest youth who fit the gang profile, based primarily on the presence of tattoos, the maras’ signature trait. Critics say the policy is short-sighted and unwittingly pushes maras underground, where they develop strategies to circumvent authorities. New members, for example, no longer get gang-affiliating tattoos and many veteran members are having their tattoos removed, according to the U.S. Agency for International Development.
The Central American University Institute for Public Opinion suggests that the maras’ response to the crackdown has been to intensify recruitment of new members among the younger generation, often forcefully.

Brooklyn lawyer Zachary Sanders represents a 19-year-old man from Honduras picked up by Immigration and Customs Enforcement during a September raid in New Brunswick, N.J. “He was recruited by the gang and when he refused to join, they attacked him with gasoline. His thigh and upper leg are badly burned and he has a nasty scar,” Sanders said.

These recruitment efforts may account for the upsurge in asylum petitions filed in U.S. courts by young Central Americans who say they fled north to escape the pressure. Attorneys in the U.S. corroborate that they hear asylum petitions are on the rise.

The odds of asylum

Petitioning for asylum is one thing; winning it is another.

U.S. law strictly limits asylum protection to people clearly pursued for their nationality, race, religion, political opinion or membership in a particular social group. Petitioners must prove their persecutor is motivated by one of the five specified categories.

Attorneys agree that a majority of gang persecution victims who petition for asylum are, like Daniel, fleeing gang recruitment. They argue the recruitment is rooted in their clients’ political opposition to the gangs and the gang’s desire to control them, and/or their membership in a particular social group, usually defined as young men of recruitment age, which is between 15 and 18 years old.

According to Christopher Nugent, an asylum expert and pro bono counsel with the Community Services Team at the Holland & Knight law firm in Washington D.C., the biggest challenge for attorneys pursuing these claims is that “gangs do not articulate the basis for persecution and clients do not voice their opposition to the gangs.”

While there is no explicit government policy opposing gang-based claims, Nugent said, government lawyers vigorously challenge such claims for fear of opening the floodgates to hundreds of Central Americans with similar stories.

Neither the text of asylum rulings, nor statistics broken down by type of asylum case, is available to the public, but according to lawyers and legal scholars, courts across the country have mostly denied asylum to gang-persecution victims. And as with many areas of the law, parties involved say the room for individual discretion that asylum law grants the judge plays an important part in the ruling. (The Justice Department reports that in fiscal year 2006, asylum was granted in 13,340 cases and denied in 16,556 cases.)

The outcome “depends on the judge’s discretion. Sometimes there is no legal support for a case, but a judge grants asylum. Other times there is legal support, but a judge denies asylum,” said Goncalves of Brooklyn’s Central American Legal Assistance.

This disparity in rulings across immigration courts should end when the Board of Immigration Review, which reviews appeals from the nation’s immigration courts, rules on a precedent-setting case. Asylum lawyers feel such a ruling must be imminent.

Gang-related asylum cases are also complicated by the fact that many petitioners are minors. Asylum law makes no distinction between children and adult petitioners, but the Convention on the Rights of the Child, signed but not ratified by the United States, calls on its signatories to consider the child’s best interest above all else. That means putting child status ahead of immigration status. According to a Harvard University study, the U.S. has worked toward applying the norms of the Convention. As part of those efforts, some advocates say, judges use their discretion to include consideration of the child-status of asylum petitioners, especially in the case of youth who joined or engaged in gang activity as minors.

The 2006 Harvard study says judges are sometimes quick to see children as “Young criminals in the making rather than young victims in distress… The distinction between delinquency and criminality is recognition that offenses by minors can result from poor judgment, an inability to foresee the consequences of one’s actions, and the role of adults in directing and supervising a youth’s behavior.”

Since the rise of gang persecution claims in the last three years, legal advocates and Latin America interest groups have worked to develop tools for asylum attorneys working on gang asylum cases and scholars have also written a handful of law review articles.

“Our members requested that we pull together some resources to address people accused of being gang members and others who are fleeing gangs,” said Paromita Shah, associate director of the National Immigration Project of the National Lawyers’ Guild. Shah organized this year’s “Gangs and Immigration” panel for the annual National Lawyers’ Guild Convention, held a few weeks ago in Washington. The central question is how people can connect the asylum cases with the bigger picture of anti-gang policies in Central America and enforcement strategies targeting kids, she said.

The Washington Office on Latin America, an organization focused on U.S. policy toward the region, said its staff had to stop appearing as expert witnesses at gang-related asylum hearings because the demand was too great. Instead, it now educates attorneys who represent Central American youth seeking asylum.

Waiting and wondering

Marissa Kim, an attorney with the major law firm Skadden, Arps, Slate, Meagher & Flom in Manhattan, represents Daniel pro bono.

According to Kim, as Daniel got closer to the gang his involvement became involuntary.

“He didn’t really have a choice, and no one really has a choice. Most of Daniel’s peers have joined the gangs, been killed or fled the country,” Kim said.

Daniel recently learned from his family in Honduras that members of the 18th Street gang killed his 23-year-old cousin – a member since the age of 14 – who had been trying to distance himself from the gang. His sister has also told him gang members from the neighborhood occasionally question her about his whereabouts.

Here in New York, Daniel says he feels safely out of the gang’s reach. Although he has heard of the maras’ presence in New Jersey and Long Island, he has never seen anyone resembling a gang member and dismisses the possibility that the 18th Street members would track him down here. (He and attorney Kim felt uncomfortable enough, however, to use a pseudonym here – Daniel is not his real name – and to request a degree of distance in the accompanying photos.)

While the NYPD declined to provide figures regarding the presence of gang members in the city, its former Gang Unit commander, Lou Savelli, estimates there are some 2,500 Mexican and Central American gang members throughout the five boroughs. Arrested gang members are classified not by nationality but by gang affiliation, and both the MS-13 and the 18th Street gangs have a presence in Mexico, Savelli said.

According to Savelli, who worked on gang enforcement for the NYPD from 1996 to 2001 and now leads the East Coast Gang Investigators Association, the Mexican and Central American gangs are concentrated in Brooklyn’s East Flatbush and Sunset Park neighborhoods; the Upper West Side and East Harlem in Manhattan; Queens’ Jackson Heights; the South Bronx; and the Richmond Terrace section of Staten Island. They engage mostly in drug trafficking, he said.

“The NYPD has been very aggressive with gangs, and gang members are very careful with being overt about who they are. In other cities gang members are not afraid of the police. In New York, they are,” he said.

Joel says his nephew is anxious about his approaching asylum hearing, which is scheduled for mid-December.

”He asks me what I think will happen and I tell him that it is up to the judge and the lawyer. But that he will need to accept the decision,” Joel said.

Asylum claims like Daniel’s are unlikely to wane. In fact, attorneys say the volume is growing because immigrants –and their lawyers– are recognizing the viability of the gang-persecution argument.

Meanwhile, news reports of renegade recruits or recent U.S. deportees killed by the gangs in Honduras, Guatemala and El Salvador – which are often criticized as sensationalist – lend some credibility to attorneys’ claims that their clients will be killed if asylum is denied.

“Asylum law is weird because terrible things happen to people,” says Washington lawyer Jeffrey Corsetti, who authored a Georgetown Immigration Law Journal article last year titled, “Marked for Death: the Maras of Central America and Those Who Flee Their Wrath.”

“The more instances of people deported and then brutally killed, the harder it is for immigration judges to resist the argument that [a petitioner] won’t be killed in a similar fashion,” Corsetti said.

Daniel, an evangelical Christian, says he is not nervous about his fate. “I am leaving it in the hands of God. Only he knows what is best for me,” he said.

Daniel Sierra Cruz is a pseudonym used to protect the subject’s identity.

– Gabriela Reardon