Man fights deportation by invoking his former gang ties
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.
Some allowed to stay
Still, immigration judges have in recent years begun granting some former gang members the right to stay.
In 2005, a former gangster from Guatemala, who sold drugs for Long Beach’s East Side Longo gang, was granted one of the two lesser forms of relief, withholding of removal.
Also in 2005, a gang member who at age 7 joined the notorious Mara Salvatrucha gang in El Salvador, also called MS-13, and was later convicted of carrying a concealed weapon in Los Angeles, won the right to stay in the U.S. when an immigration judge ruled that his former gang membership and tattoos would put him at risk of persecution if he were returned. That decision was reversed, so his case is also pending before the 9th Circuit court.
A former gangster from Honduras convicted of grand theft auto as a member of Los Angeles’ Down for Anything gang won the right to stay in the U.S. in 2005 because of his past gang affiliation. In 2002, a former member of MS-13 in Los Angeles who was born in El Salvador won asylum with the backing of then-mayoral candidate Antonio Villaraigosa.
On appeal, gang-related asylum cases have had mixed records. The best-known is a 2003 case heard before the U.S. 6th Circuit Court of Appeals.
In that instance, Rolando Augustine Castellano-Chacon, a former member of MS-13 in New York who had been convicted of using false identification papers while living in Ohio, had been granted asylum by an immigration judge, but the appellate court ruled that “tattooed youth” wasn’t a persecuted social group.
He was deported to Honduras, where he sought refuge in a Jesuit safe house, hoping to avoid the fate of ex-gangsters like Edgar Chocoy, who was denied asylum in 2004, when he was 16. Chocoy was deported to Guatemala and gunned down 17 days later.
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.
But Kara Hartzler, staff attorney with the Arizona-based Florence Immigrant and Refugee Rights Project, said that although former gangsters “may not be the innocent, trembling refugee we want to see,” federal law doesn’t allow the United States to send back people to countries where it is more likely than not they will be tortured and killed.
‘He would beat me up’
Alvarado-Veliz’s life, as he describes it, has been full of bad breaks and bad choices.
Born in 1983, he was 1 1/2 when he was smuggled into the United States from Guatemala to join his parents in North Hollywood. Soon after, his mother left his abusive father.
His father, who died last year, retaliated, Alvarado-Veliz says, by abducting him and taking him back to Guatemala as a 6-year-old. By age 7, he was watching his father smoke crack and sell drugs. “He would beat me up like I was his enemy,” Alvarado-Veliz said.
At 13, having already used prescription drugs and marijuana and led a posse of thugs in elementary school, Alvarado-Veliz went to live with his mother in Los Angeles County; he attended Burbank High School until dropping out at 14. He left home and started selling marijuana and crack at a park where he slept and where he soon hooked up with a Panorama City gang. (He asks that it not be identified for fear members will target his family.)
The gang life
Alvarado-Veliz said he loved gang life: the parties, the women who lusted for guys with guns, the rush of eluding the cops, knowing someone was watching his back.
“I used to feel good doing evil,” Alvarado-Veliz said.
He covered both shoulders and upper arms with tattoo sleeves. “Trust no Bitch” is inscribed on the left side of his neck. “Only God Can Judge Me” is scrawled across his chest. On his right arm are a grim reaper, six skulls, a cemetery and the flames of hell, symbolizing the people his gang had killed.
In 2000, he was arrested twice, once on suspicion of possessing crack cocaine and once on a charge of shoplifting. According to his rap sheet, both charges were dropped.
In January 2001, Alvarado-Veliz was arrested for transporting and selling crack. A judge sentenced him to juvenile hall, and nearly 10 months later, after he was handed over to immigration authorities, he was deported to Guatemala.
It was already a dangerous place for any suspected gangster, and the peril grew.
In 2006, for example, 640 of 3,899 press accounts of violent deaths in Guatemala involved current or former gang members. Many victims bore telltale signs of police or vigilante killings: hands bound, a single bullet to the back of the head, anti-gang notes pinned to their bodies or carved with a knife into their flesh, said Gad Echeverria, spokesman for the Guatemalan human rights organization Grupo de Apoyo Mutuo.
Many death squad members are former or current police officers, Echeverria said, responding to terrorized residents fed up with violent gangs, who have imposed a “war tax” on homes, businesses, bus drivers and people crossing gang turf to get to buses. Gangsters dealt with scofflaws by strafing their houses with bullets or killing them and their families.
It’s not possible to verify parts of his story, but Alvarado-Veliz describes how -- despite refraining from criminal or gang activity in Guatemala -- the tattoos on his face, neck and arms and his California gang dress and mannerisms were enough for police to target him.
He was arrested in Guatemala four times on what he said in court documents were false or trumped up charges. He said he was never charged and was typically beaten, then imprisoned for three-month stints before being released.
After his final arrest, in the fall of 2002 following the Black Shadow bus incident, he was sent for a fourth time to Pavoncito Prison, a place Echeverria says is known for beatings and torture by guards. Machete killings by rival inmates are common, Echeverria said.
Alvarado-Veliz said that during his incarceration, he watched as one prisoner was raped and another had his throat slit. A gangster in his unit, viewed as disloyal to the MS-13 gang, had tattoos skinned off his arm with a knife. Inmates fried the flesh and ate it.
He said that at his grandmother’s home, anonymous men with deep voices called day and night to threaten that if Alvarado-Veliz didn’t leave Guatemala, a grenade would be lobbed into the home.
After he was released, he fled north and in the summer of 2003 entered the U.S. illegally for the third time.
Alvarado-Veliz says that he tried to live a better life after returning. He got a job at Target, attended Burbank adult school at night and began attending his mother’s Church on the Way in Van Nuys. “I wanted to make my mother proud,” he said.
But in 2004, police charged him with carrying a small amount of marijuana and disturbing the peace. He was convicted on the infraction of disturbing the peace.
Also that year, he was convicted of a misdemeanor count of petty theft. In 2005, after failing to make one of his $100 monthly court-ordered fines for a misdemeanor conviction for driving with a suspended license, he was sent to an immigrant lock-up in Eloy, Ariz., to be deported.
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.
“My past is pretty messed up, but I think I can use it to the benefit of other people,” he said.