Gerson Alvarado-Veliz was on a bus in Guatemala in 2002, he says, when three men toting AK-47s boarded and pointed the assault rifles at his face.
"Get off the bus!" they screamed. "Gangster!"
Alvarado-Veliz assumed the men were with the Sombra Negra, the Black Shadow vigilante death squads that conduct killings aimed at "cleansing" Guatemala of suspected gang members. And Alvarado-Veliz's more than 20 tattoos from his life in a San Fernando Valley gang clearly marked him as a onetime gang member.
Alvarado-Veliz said he was saved from the vigilantes by police, who then threatened him with death before ramming rifle butts into his legs and stomach.
After that experience, Alvarado-Veliz -- who had been deported after serving a sentence in California for selling and transporting crack cocaine -- knew he had to flee Guatemala or be killed. So he sneaked back into the United States.
Now the 23-year-old is sitting in an Arizona immigration detention facility after an arrest related to charges of marijuana possession and driving on a suspended license. He's citing his past as a gang member as the reason he should be granted asylum and allowed to remain in the U.S.
In a strategy that immigration attorneys say is increasingly employed by former gang members facing deportation, Alvarado-Veliz and others have argued that their lawless pasts are precisely why they should not be deported to Guatemala, El Salvador or Honduras, places where gang tattoos and mannerisms, they say, can mean persecution and certain death at the hands of police, prison guards and vigilantes.
In 2005, a U.S. immigration judge found Alvarado-Veliz credible and granted him the right to stay in the U.S. legally. Challenged by the U.S. government, the decision was reversed by the Justice Department's Board of Immigration Appeals. Now Alvarado-Veliz is one of at least six former gang members with cases pending before the U.S. 9th Circuit Court of Appeals.
The U.S. grants political asylum to those who can show a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.
Persecution must be by a government or a group the government is unwilling or unable to control. Immigrants with convictions for aggravated, or particularly serious, felonies are ineligible, but they can apply for two other types of relief under what is called "withholding of removal" or under the United Nations convention against torture.
Fewer than a quarter of the 91,425 asylum claims made in the U.S. in fiscal 2005 were granted, and as a rule an even lower percentage of cases brought by gang members succeeds.
Since 1993, the U.S. has deported more than 50,000 people with criminal records to Central America.
Some allowed to stay
Still, immigration judges have in recent years begun granting some former gang members the right to stay.
In 2005, a former gangster from Guatemala, who sold drugs for Long Beach's East Side Longo gang, was granted one of the two lesser forms of relief, withholding of removal.
Also in 2005, a gang member who at age 7 joined the notorious Mara Salvatrucha gang in El Salvador, also called MS-13, and was later convicted of carrying a concealed weapon in Los Angeles, won the right to stay in the U.S. when an immigration judge ruled that his former gang membership and tattoos would put him at risk of persecution if he were returned. That decision was reversed, so his case is also pending before the 9th Circuit court.
A former gangster from Honduras convicted of grand theft auto as a member of Los Angeles' Down for Anything gang won the right to stay in the U.S. in 2005 because of his past gang affiliation. In 2002, a former member of MS-13 in Los Angeles who was born in El Salvador won asylum with the backing of then-mayoral candidate Antonio Villaraigosa.
On appeal, gang-related asylum cases have had mixed records. The best-known is a 2003 case heard before the U.S. 6th Circuit Court of Appeals.
In that instance, Rolando Augustine Castellano-Chacon, a former member of MS-13 in New York who had been convicted of using false identification papers while living in Ohio, had been granted asylum by an immigration judge, but the appellate court ruled that "tattooed youth" wasn't a persecuted social group.
He was deported to Honduras, where he sought refuge in a Jesuit safe house, hoping to avoid the fate of ex-gangsters like Edgar Chocoy, who was denied asylum in 2004, when he was 16. Chocoy was deported to Guatemala and gunned down 17 days later.
The legal argument for granting asylum to gang members rests on the likelihood that they would face persecution or torture if returned to their native countries. Since 2003 and adoption of \o7Mano Dura, \f7or Iron Fist, laws relating to gangs in El Salvador and Honduras and less formal policies in Guatemala, human rights groups say that youths have been arrested for merely sporting tattoos or wearing baggy clothes.