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Maryland man focus of national debate over asylum claims

When Julio Martinez crossed the U.S. border illegally more than a decade ago, his attorneys say, he was running for his life, attempting to escape the deadly and pervasive gang he joined in his native El Salvador as a 14-year-old boy.

Martinez, who entered the country in 2000 and lived in Middle River for years, is now at the center of a legal question that has split federal courts and that could have significant implications for U.S. immigration policy: whether a former gang member, fearing for his safety in his homeland, can claim asylum to avoid being sent back.

Gang-related asylum cases have percolated in immigration court for years, but many, including Martinez's, are now working their way up on appeal — forcing the justice system and the Obama administration to clarify the sometimes murky requirements that spell out when immigrants may be granted haven in the United States.

Those close to Martinez, a 33-year-old father of twin daughters, say his decision to renounce membership in the notorious MS-13 gang means that a return to its El Salvadoran stronghold would be a death sentence. They point to the growing violence in Central America and examples of former gang members who were killed soon after being sent home.

"If he goes to his country, he won't live — this is the truth," said his sister Melva Ordonez, who came to the United States five years before him and lives in Middle River. "His kids will have no father."

Critics say honoring such claims would open a loophole in immigration enforcement, allowing nearly anyone to claim prior gang membership to avoid deportation. Determining whether someone ever joined a gang — or truly renounced it — often comes down to taking the word of the accused.

The Justice Department attorneys who are opposing Martinez's claim did not respond to a request for comment. The department has argued in court filings that former gang members are not the immigrants Congress intended to protect when it passed the Refugee Act of 1980, the law that guides the asylum process.

Martinez, who came to the Baltimore area to live near his sisters, became involved with a group of older boys in his hometown of San Miguel more than two decades ago after the death of his stepfather.

The group eventually was drawn into MS-13. Martinez attended meetings and wore gang tattoos but did not commit any violence, his attorneys say.

When he attempted to leave the gang about a year later, he was beaten and stabbed by other members, his attorneys say.

Martinez moved to a town 90 minutes away, but gang members caught up to him and shot him, his attorneys say. He recovered from that attack and was shot at again.

It was then that Martinez decided to come to the United States, his attorneys say. His supporters say he settled into a quiet life in Baltimore County, where he worked as a deliveryman and then a taxi driver, and avoided clubs where he thought he might run into U.S.-based members of the gang.

His daughters were born in 2008. His attorneys say he calls them every day from the Howard County Detention Center.

Ordonez, her hands folded in the apron she wears to clean houses, said she took his daughters to see him at the jail once. The experience was too painful to repeat. The girls didn't understand why they couldn't hug him, she said, or why he couldn't come home.

Martinez has been in custody for three years, an unusually long time for such cases. His lawyers are contesting the length of his detention; a bond hearing is scheduled for next week.

U.S. Immigration and Customs Enforcement denied a request from The Baltimore Sun to interview Martinez. Attempts to contact him by phone were unsuccessful.

Mara Salvatrucha 13 is the best known of the gangs that originated in the 1980s among Central American immigrants in Los Angeles and have grown into multinational criminal organizations. MS-13 is active in the Washington suburbs of Montgomery and Prince George's counties.

A decade ago, the FBI dedicated a task force to focus on the gang. In 2008, the bureau estimated that MS-13 had as many as 10,000 members operating in at least 42 states, and accused them of drug distribution, murder, rape, prostitution, robbery, home invasions, kidnapping and carjacking.

No one keeps track of the number of gang-related claims for asylum, but those who follow the cases say they have increased as the groups have grown more prevalent. The number of "credible fear" applications, the first step for some asylum-seekers, has more than doubled over the past four years. The vast majority of those who filed such claims came from Central America.

Anne Pilsbury, director of Central American Legal Assistance in New York City, said her group alone handles several hundred claims each year.

"I can assure you there are thousands of these cases in the system right now," she said. "The law has not changed to take into account how very, very violent it's gotten."

Technically, Martinez is not seeking asylum, which must be requested within a year of arrival, but rather a less comprehensive form of sanctuary known as "withholding of removal." The status would allow him to remain in the United States, but it would not entitle him to apply for permanent legal residence. He is being represented by the immigration clinic at the University of Maryland School of Law.

"The question for us is whether we are going to recognize and protect people who have taken a stand against a very dominant gang presence in places like El Salvador," said Maureen A. Sweeney, a Maryland law professor who supervises the work.

"He made a decision of conscience to leave the gang," she said. "The question is whether we're going to recognize that."

The 4th U.S. Circuit Court of Appeals ruled in Martinez's favor in January on a narrow slice of his argument. His case is now back before the Board of Immigration Appeals, a panel within the Justice Department.

The question of whether previous gang membership may be argued as the basis for asylum has divided the federal courts. The 7th U.S. Circuit Court of Appeals in Chicago and the 6th Circuit in Cincinnati have ruled that it can. But the 1st Circuit in Boston has rejected the argument, writing that such an interpretation would "offer an incentive for aliens to join gangs here as a path to legal status."

Rep. Bob Goodlatte, the Virginia Republican who chairs the House Judiciary Committee, pressed the Obama administration this year to appeal the Martinez case to the Supreme Court.

"Surely it is likely that when gang members are placed in removal proceedings they will claim that they are no longer a member of a gang and have renounced gang membership in an attempt to circumvent removal," he wrote to Attorney General Eric H. Holder in February.

The Justice Department declined to appeal the case to the high court. Now, the Board of Immigration Appeals must decide whether Martinez's case meets other tests for asylum not considered by the 4th Circuit.

Sweeney, Martinez's attorney, said concerns about crime are misplaced because the law already prohibits people from seeking asylum if they have been convicted of serious offenses in the United States or if there is reason to believe they committed crimes in their homeland.

Martinez has run into trouble with the law repeatedly since arriving in Maryland, but most of the charges have been minor. He was charged with second-degree assault in 2011 in Baltimore and with marijuana possession in 2006 in Baltimore County.

The assault charge was dropped, but prosecutors pursued the marijuana case, and Martinez received probation before judgment in 2007. The outcome is not a conviction, but the Department of Homeland Security initiated deportation proceedings.

In a twist, the government suspended the effort to remove him in 2008 and recruited him to serve as an informant.

According to court documents, Martinez helped the FBI make "controlled purchases of drugs and fake green cards."

But when Martinez was picked up in 2011 for driving without a license, the federal government reopened the deportation case.

Advocates for immigrants say U.S. courts are interpreting the asylum law in a way that no longer fits the reality of life in Central America — and those trying to escape it.

"You don't want an overly broad rule," said Benjamin Casper, who directs the immigration clinic at the University of Minnesota. "There are tons and tons of children in Central America who, lacking family structure, fall victim to these gangs."

For Martinez's sister, the issue isn't about regulations or politics. It's about keeping her family together.

"Nobody's perfect," Ordonez said of her brother. "But if you make a strong family, you make a strong country,"

john.fritze@baltsun.com

twitter.com/jfritze

Copyright © 2014, The Baltimore Sun
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