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.
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 Mano Dura, or 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.
The last three annual human rights reports on Guatemala by the U.S. State Department spell out “credible reports of torture” by police of suspected gangsters, who were beaten to gain confessions or imprisoned on false charges.
“Social cleansing” units operate within police departments and pass on suggested targets to death squads, said Geoff Thale, who monitors human rights as program director for the nonprofit Washington Office on Latin America.
Many organizations oppose any grants of asylum for former gangsters.
Ira Mehlman, spokesman for the Federation for American Immigration Reform, a group that lobbies for tougher immigration controls, said he finds it absurd that someone who chose to engage in illegal activity and affiliate with a gang would be rewarded with asylum. What’s next, Mehlman asked, giving refuge to former lieutenants of Al Qaeda?
“To give this guy any consideration over some guy sitting in a squalid refugee camp seems almost an abuse of the asylum or refugee process,” Mehlman said.
“I somehow seriously doubt when people wrote the asylum laws, they thought of gang members and criminals. It is taking the concept to its most absurd degree.
“Redemption,” Mehlman added, “is for God to decide.”
William Odencrantz, director of field legal operations for U.S. Immigration and Customs Enforcement, questions the legal reasoning behind granting asylum to gang members. “If they had truly reformed, there is no reason for the police or for the vigilantes to attack them,” he said.
On Dec. 7, 2005, Alvarado-Veliz, then 22, went before immigration judge Thomas M. O’Leary in Arizona.
In sworn testimony, Alvarado-Veliz said he hadn’t been a gang member for four years, had never been convicted of a violent crime or violent felony and faced torture and beatings by Guatemalan police for being a suspected gang member.
“If I go back, they are going to kill me. I’m talking about my life, your honor.”
O’Leary denies 94.4% of asylum claims in his courtroom, according to one study, making him among the toughest of 224 immigration judges nationwide. But he found Alvarado-Veliz’s account credible.
Alvarado-Veliz, the judge ruled, was “more likely than not” to face torture if returned. He granted him the right to stay in the U.S., with one caveat: He would be deported if he ever committed another crime.
Seven months later, when an immigration appeals board reversed that ruling, his attorney appealed to the 9th Circuit Court. Alvarado-Veliz has been locked up for 22 months.
In prison, he leads a daily Bible study and on Sundays translates the prison chaplain’s sermon for the mostly Spanish-speaking inmates. He faces another year before a court decision is likely. He believes the jail time and previous torture are punishment enough for his past. Jesus Christ, he said, taught forgiveness.
He says he hopes one day to be a youth minister targeting those involved in gangs and drugs in Los Angeles.