RAICES Bulletin: Challenges in Making Anti-Gang Political Opinion Claims
By RAICES Public Affairs Director Javier Hidalgo, Esq.
TL;DR Recent decisions from the Board of Immigration Appeals (BIA) and the First Circuit show practitioners representing asylum seekers must be mindful of the high evidentiary burden they face when presenting anti-gang political opinion claims. Practitioners must seek to establish that gangs exercise "governmental capacity" by building fact-intensive records.
WHAT TO KNOW
Issue: On April 21, 2026, the BIA ruled in Matter of D-G-E-A- & N-G-G-E- that mere opposition to criminal gangs does not constitute a "political opinion" for asylum. To qualify, an applicant must demonstrate a belief tied to a government or a de facto government. This was followed by a First Circuit decision on April 23, 2026, in Lopez Martinez v. Blanche, No. 25-1225 (1st Cir. 2026), which challenged the BIA’s categorical rejection of such claims.
Rationale: The BIA concluded that a "political opinion" must relate to a government’s policies or methods, explicitly rejecting the idea that resisting a gang is inherently political simply because the group is "politically minded." The BIA maintained that retaliation "untethered to a governmental system" does not provide a basis for asylum. Conversely, the First Circuit found the BIA erroneously treated gang opposition as categorically non-political. The court emphasized that political opinions are often intertwined with non-political issues and require a "complex and contextual factual inquiry."
RAICES Impact: RAICES represents many clients seeking anti-gang political opinion claims. These competing decisions do not necessarily change the existing standard, but do highlight the need to develop a factual record establishing that an opposed gang acts as a de facto government or maintains government ties. RAICES representatives should leverage the First Circuit’s reasoning to demand individualized, fact-specific inquiries rather than allowing the BIA to apply categorical bars to gang-related claims.
Community Impact: This ruling underscores the challenges faced by asylum seekers from El Salvador and Honduras, where groups like MS-13 exercise "extraordinary levels of social control." It means individuals whose opposition to gangs creates a risk of persecution may be returned to that harm if they cannot meet the specific standards articulated in these cases.
Related Legal Battles: The First Circuit’s remand of Lopez Martinez indicates that federal courts will continue to check attempts to limit asylum protections by the BIA, which will likely continue to disagree with expansive interpretations of gang resistance that acknowledge a political dimension.
Broader Immigration Strategy: Practitioners should continue bringing anti-gang claims by using fact-intensive analysis and expert evidence to prove gangs operate in a "governmental capacity"—such as monitoring movement, collecting "taxes," and enforcing "laws"—to meet the BIA’s "de facto government" threshold. When possible, emphasize where gangs and corrupt government actors are "inextricably intertwined." Finally, practitioners should build a strong record to support the high likelihood of an appeal.
