The decision continues: “A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.”
Judge Posner suggests that even where former gang members meet the requirements for asylum, they could be denied as a matter of discretion, or on statutory grounds:
We can imagine the Board’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum [because, for example, he is not a person of good moral character and does not deserve a favorable exercise of discretion].
[In this case,] Ramos was a member of a violent criminal group for nine years. If he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime.
The USCIS Memo states that within the Seventh Circuit, “former gang membership may form a particular social group if the former membership is immutable and the group of former gang members is socially distinct.” Outside of that circuit, Asylum Officers should remember that criminal activity, “past or present, cannot form the basis of a particular social group.” The memo also states that all Asylum Officers, regardless of jurisdiction, should note that past “gang-related activity may serve as an adverse discretionary factor that is weighed against positive factors.”