Abstract
In 2015, Ms. Odalis Mireida Chicas-Machado, the secretary of an evangelical church in El Salvador, started getting harassed by members of the MS-13 gang during her walks to and from the church. Chicas-Machado believed that the harassment began because the gang considered her to be an enemy due to her work spreading the message of God to young people who otherwise might have joined the gang. Approximately one year after the harassment commenced, gang members threatened Chicas-Machado with death if she refused to alert the gang when police cars drove by a local store. The gang sought out Chicas-Machado for this assistance because it believed that nobody would suspect her of helping because she is Christian and involved with her church. When Chicas-Machado refused the gang’s demands and instead contacted the police, the threats escalated to rape threats in addition to the death threats.
Subsequently, Chicas-Machado left El Salvador for the United States and applied for asylum. In her asylum application, she argued that the gang persecuted her on account of her religion. Chicas Machado’s asylum application was initially denied after the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) held that the persecution Chicas-Machado endured was not on account of her religion. The Fourth Circuit Court of Appeals disagreed, however, applying a broader reading of the asylum statute’s requirement that the persecution be on account of Chicas-Machado’s religion. Chicas-Machado’s experience is not unique. The threat of gang violence against individuals practicing a religion remains a present concern around the world. In particular, gang violence in Latin America and the Caribbean has increased in recent years. Religion, especially the Catholic Church and evangelical Christianity, is closely intertwined with risk of gang violence. Churches often work against a gang’s interests by convincing potential recruits not to join gangs, publicly supporting the rehabilitation of former gang members, and promoting nonviolence. Accordingly, church members face a particularly high risk of being targeted for recruitment, extortion, or violence by gangs. These victims face a difficult choice between complying with the gang’s demands by agreeing to stop practicing their religion and taking actions that contradict their religious beliefs or fleeing their home and facing the dangers that come with forced displacement.
The number of people seeking asylum in the United States from Latin America and the Caribbean is increasing considerably. Much of the forced displacement has been driven by the growing levels of gang violence in these regions. Despite the extreme danger that forces asylum seekers to leave their home countries, the United States deports many people from countries at high risk of gang violence likely in large part due to the increasingly narrow asylum eligibility requirements. Nonetheless, there have been recent reports of several individuals facing violence or death after being deported from the United States to their country of origin, exemplifying the high stakes of asylum decisions. The issue of gang violence and forced displacement is worsening, and due to significant backlogs created by limited agency staffing and the complexity of immigration law, the U.S. asylum system is unprepared for the continued rise in asylum seekers. In order to be granted asylum, one of the requirements that an individual must prove is that they were persecuted “on account of race, religion, nationality, membership in a particular social group, or political opinion.”
The five groups are known as “protected grounds,” and the requirement for persecution to be on account of a protected ground is known as the “nexus requirement.” A majority of courts, including the Fifth Circuit and the BIA, interpret the nexus requirement narrowly. These courts often deny asylum claims involving religious persecution committed by gangs. Courts that take this narrower approach reason that the gang’s criminal motivations take precedence over the motivations related to the applicant’s religion. According to this interpretation, the persecution was on account of the gang’s criminal motivations, not the applicant’s religion. In contrast, the Fourth Circuit has taken a broader approach to the nexus requirement by holding that the protected ground only needs to be a reason that the applicant, and not somebody else, was persecuted.
This Comment argues that the Fourth Circuit’s broader approach correctly interprets the nexus requirement and the meaning of religious persecution, therefore necessitating an increase in the number of individuals eligible for asylum. Part II describes the nexus requirement and details the circuit split between the narrower BIA and Fifth Circuit approaches and the broader Fourth Circuit approach. In addition, Part II explains deference to administrative agencies as it relates to the BIA’s narrow interpretation of nexus and outlines the United Nations High Commissioner for Refugees’ (“UNHCR”) distinct approach to nexus. Lastly, Part II summarizes the III first argues that the Fourth Circuit’s broader approach to nexus must be followed based on a plain text reading of the statute and the Supreme Court’s analogous interpretation in the discrimination context. Secondly, Part III argues that circuit courts should not defer to the BIA’s narrow approach after the Supreme Court’s overturning of Chevron deference. Lastly, Part III asserts that the Fourth Circuit’s broad approach to religious persecution, when applied to individuals in situations similar to Chicas-Machado, correctly results in a grant of asylum. Part IV recommends that courts further expand the nexus definition to align with the UNHCR’s even broader approach. Part V concludes that the Fourth Circuit’s approach to the nexus requirement and religious persecution ensures that the U.S. asylum system interprets nexus in a way that complies with legal precedent, but that the nexus requirement should continue to be expanded to align with the UNHCR's approach
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