Selvin Heraldo Saban-Cach v. Attorney General of the United States of America

Selvin Heraldo Saban-Cach was born and raised in Guatemala. He was one of few persons of Kaqchikel Mayan indigenous ethnicity living in his neighborhood. Kaqchikel Mayans were easily identifiable because their names, language, physical appearance, and attire differed from that of the general population. When Saban-Cach was an adolescent, a local gang affiliated with the international Mara Salvatrucha gang, known as MS-13, began harassing Saban-Cach. The gang members regularly insulted Saban-Cach based on his ethnicity and physically harmed him by throwing stones and kicking him. The members warned that they would continue attacking Saban-Cach until he joined the gang and if he refused he would die. At 15, Saban-Cach dropped out of school and moved to a town over an hour away. Nevertheless, the gang continued to harass him when he returned home to visit his parents. One time, members taunted him for his ethnicity before breaking a glass bottle over his eye and kicking and stabbing him. Fearing for his safety, Saban-Cach fled to the United States. He applied for withholding of removal under the Immigration and Nationality Act on the basis that he feared being persecuted by the gang because of his membership in a particular social group, namely indigenous persons in Guatemala. An immigration judge denied Saban-Cach’s application, reasoning that (1) the harm he suffered did not amount to persecution; (2) even if it did, the persecution was based on refusal to join the gang, not his indigenous status; and (3) young Guatemalan men being recruited by a gang but refusing to join were not a particular social group. The Board of Immigration Appeals (BIA) affirmed the denial of Saban-Cach’s application. Saban-Cach petitioned for review by the Third Circuit.