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After fleeing gang, family now faces U.S. government

After gangsters in El Salvador murdered her teenage son and harassed her family three years ago, Maria Canales de Maldonado fled to the United States, seeking refuge and a measure of peace in Maryland. Now the American government is at the root of new fears.

In July an immigration judge in Baltimore granted asylum to Canales de Maldonado and her 18-year-old son, Pablo, after they arrived illegally in the United States seeking sanctuary from the gang that continued to torment their family. The ruling cleared the way for the two to begin building a new life in Maryland with family members living here legally: her husband, also named Pablo, and son, Santos, 14, whose similar plea for asylum had already been granted by the courts.

But a decision by the federal government to appeal the asylum granted to Maria and Pablo — even as it chose not to contest asylum for Santos — means the family of four could yet be cleaved in half. If the asylum order is reversed, an outcome that might not be known for a year or more, she and her oldest son would have to go back to El Salvador and the gang that stalked them relentlessly.

Canales de Maldonado, 47, said through an interpretor that she is quite certain what would happen. "If we went back to El Salvador," she said in a high-pitched voice thick with emotion, "the gang will kill me and my son."

Some advocates for immigrants see the appeal by the Department of Homeland Security as an outgrowth of the contentious national debate on immigration, including how the country should treat the legions of undocumented Latinos who cross the border for myriad reasons.

"Obviously, immigration is a hot-button issue right now; everyone has a very strong position one way or the other," said Sara McDowell, senior immigration attorney at the National Center for Refugee and Immigrant Children in Arlington, Va. "In an ideal world, that isn't what's playing into this, but you know it is."

Azim Chowdhury, the lawyer representing the family, thinks the government is trying to block all gang-related asylum cases that originate in Central America, even though he argues that this case stands out because of the way the family was targeted.

If the government's appeal succeeds, he says his clients would likely take their bid up the ladder to the 4th U.S. Circuit Court of Appeals.

For Chowdhury, the family's case has become something of a personal mission in the two years that he's known them. "I've grown to love them in a way, and I think they feel the same about me," he said. "They're almost like my second family."

Chowdhury, 29, was working in downtown Baltimore at the Duane Morris law firm in 2008 when he first learned about their plight. His task then was to help win asylum for Santos, whose saga was chronicled last year in The Baltimore Sun. When the lawyer first met his young client, Santos' mother and brother Pablo still lived in El Salvador.

Chowdhury's firm assigned him to assist Santos as part of its mission to offer free representation. A 2006 graduate of the University of Maryland School of Law, Chowdhury liked the idea of working pro bono. But his focus was representing pharmaceutical companies on Food and Drug Administration matters. He had never taken on an immigration case, nor did he speak Spanish.

Asylum applicants face long odds. In fiscal 2009, immigration judges, who work for the Department of Justice, sided with barely one-quarter of applicants from all countries, according to federal figures. Chances are especially slim for those from Latin America. For example, just 117 of 3,458 seekers from El Salvador received asylum.

Two rulings by the federal Board of Immigration Appeals in July 2008 all but closed off the argument typically made in gang asylum cases: that a refusal to join a gang led to violence and intimidation.

In general, asylum can be granted to someone with a well-founded fear of persecution for one of five reasons: race, religion, nationality, political opinion or membership in a social group. The last category has been tried in gang cases, but the appeals board — the one that will decide the fate of Canales de Maldonado and Pablo — concluded that those resisting gang pressure don't make up a social group.

Chowdhury, aided by a colleague and McDowell, realized Santos could argue that he merited asylum because his persecution stemmed from membership in a social group: his own family.

Their evidence boiled down to this: Both before and after gang members shot his 16-year-old brother, Jose Ever, for refusing to join, they assaulted and threatened Santos and his family solely because of Jose Ever's stubborn defiance. The gang never even tried to recruit Santos or Pablo, the family says.

The gangsters belonged to MS-13, a Latino gang known for violence and criminal rackets. Begun by Salvadorans in Los Angeles, it has spread across the country, and the Washington region is a hotbed. El Salvador has a large MS-13 presence, in part because so many members have been deported to the small Central American nation.

Santos wound up in Baltimore's immigration court because he had been sent to live with his father outside Washington after being detained by Border Patrol agents and temporarily put in foster care while his case was pending. His father moved to the U.S. in 1998 for construction work. While he came here legally, he did not have the right to bring the rest of his family.

In June of last year, Immigration Judge Philip T. Williams granted Santos asylum, embracing Chowdhury's argument and noting that the family was "mistreated in the worst way" by MS-13. The government did not appeal, for reasons that aren't clear, closing the case. Santos is now preparing to apply for permanent resident status — his "green card" — and get on a track toward citizenship.

By the time of his trial, his mother and brother had themselves fled to the U.S. and been detained by the Border Patrol. Chowdhury, who now works in Washington for the firm Keller and Heckman, took on their case, too. At their trial in July, Maria Canales de Maldonado told the immigration judge — Judge Elizabeth A. Kessler this time — that Santos' flight in late 2007 made things worse for her and Pablo.

"The gangs got extremely angry," she testified. "Then they attacked us even more. They kept saying they were going to kill us because I had defied them. And I had allowed Santos Erick to leave the country."

The family's breaking point came in late 2008 when gang members beat Pablo up on a soccer field. "He came home bleeding and all black and blue," his mother testified. "I was so terrified. It reminded me of how Jose Ever used to come home. Then I said we have to escape. And that's how we got here."

Chowdhury presented the same legal argument for them that he had for Santos.

Joseph B. Edlow, an Immigration and Customs Enforcement lawyer who was not involved in Santos' case, strongly disagreed. He argued that the family's experience was in no way distinctive.

"Everyone in El Salvador, for one reason or another, is afraid of the gang violence," he told the judge, adding, "They've been the victims of gang violence and, while it's unfortunate, it's not a ground for asylum."

The judge sided with Canales de Maldonado and Pablo. She noted that it's "not simply a question of the respondents being family members of an individual who is targeted for recruitment."

Because the threats and violence continued even after Jose Ever's killing, the judge said, "it did seem to be that at least one central reason for the ongoing persecution was simply that they were members of the nuclear family that remained in El Salvador."

This time, however, the government appealed to the Board of Immigration Appeals. "In total," Edlow wrote in a filing, "the Immigration Judge's grant of asylum was in error and should be reversed."

For now, the family lives in Maryland, not far from the District of Columbia, in a state of limbo. Santos has started ninth grade, and Pablo, who suffered a head injury as a young boy, is in 10th grade. Both are honor roll students with college aspirations, Chowdhury said. Pablo is thinking about a career in computers while Santos sees himself going into law enforcement.

Their mother said: "Since my son died, it's the only happiness I've felt, being alongside my family. But at the same time I'm still very sad because I miss my son."

And she worries she and Pablo might one day get a one-way ticket back to El Salvador.

scott.calvert@baltsun.com

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