Today, at 34, Martinez is once again a prisoner, this time in federal immigration custody at the Howard County Detention Center in Jessup, Md.
The government is seeking to deport him, but he has mounted a controversial defense that is being closely watched by human rights experts and lawmakers as his case plays out in the federal courts.
Technically, Martinez is only being held because he is an illegal immigrant; after a decade of living and working quietly in Maryland, he was stopped by police in 2011 for making an illegal left turn and then arrested. But as a repentant former gang member in El Salvador who fled to the United States at age 20, he has requested asylum on the grounds that he deserves permanent protection from his former associates.
If he wins his case, it could dramatically expand U.S. asylum laws that are mostly used to protect victims of political or religious persecution. He has a bond hearing scheduled for Wednesday.
“I ran away from my country to save my life, and I never did any harm,” Martinez said in Spanish during a telephone interview from the detention center in Jessup. “The gang leaders said we were all brothers, but it was a lie. They just want to use you. Once you’re in, the only way you leave is dead. They already tried to kill me twice, and if I am sent back, they will still be hunting for me.”
Although the chances of former gang members such as Martinez obtaining permanent asylum might appear to be slim, the courts remain divided on the issue. In several recent rulings on his case and two others, federal immigration and appeals courts have given contradictory answers as to whether such people deserve American sanctuary from the violent consequences of their former lives.
One issue is how to decide whether the person is truly repentant; another is the more technical question of how to define a gang. Currently, asylum-seekers must belong to a recognizable class of people who are vulnerable to persecution based on their race, religion, ideology or membership in a “particular social group.” Does a gang qualify as a social group?
Maureen Sweeney, director of the immigration clinic at the University of Maryland’s Carey School of Law, is representing Martinez. She thinks U.S. asylum law should be changed to allow such immigrants to seek protection if they renounce gang life at their peril. Thousands of gang members in the United States have been deported to El Salvador in the past two decades; there is no estimate of how many others have attempted to repudiate their past.
“One foundation of our asylum law is that someone’s conscience should not have to be sacrificed for their safety,” Sweeney said. “The burden of proof in asylum cases is difficult to meet, but if someone can convince a judge they genuinely left a gang and face danger as a result, they have met that burden of proof and should be protected.”
The other side of the argument is that members of violent gangs should never be rewarded, and that granting asylum to those who claim repentance would open the floodgates to predatory immigrants who want to avoid deportation.
Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee, objected strongly to a February court ruling in Martinez’s favor, saying it “encourages fraud and creates a new loophole where gang members can simply claim they are no longer a member of a gang in order to game the immigration system.” The result, he added, would be to “endanger our communities” through the scourge of gang violence.
Despite his off-putting resume and the gang initials MS (for Mara Salvatrucha) tattooed on his stomach when he was 14, Martinez is in some ways a perfect example for his cause.
According to Martinez, he was lured into gang life at a young age, committed no serious crimes and made extraordinary attempts to escape the gang once he realized its coldblooded agenda of extorting money from ordinary people and brutally enforcing members’ fealty.
“They wanted me to take money from people I had known all my life, but I didn’t want to,” he said. As punishment for his change of heart, gang leaders ordered his execution. One group of enforcers stabbed him and left him for dead, he said. After recovering, he fled to a relative’s village, but gang members tracked him down, shot at him and threatened his family.
Finally, he fled to the United States and moved in with his oldest sister, Melva Ordonez, a housecleaner in Baltimore. Last week, Ordonez recounted the hardships and terrors of their childhood — growing up without parents, fleeing from crossfire between Salvadoran soldiers and guerrillas. She left for the United States as soon as she could, while her adolescent brother gravitated to a local gang.
“We all suffered, but we were still innocent back then,” she said. “The gangs seemed to offer so much. They had come from America with their promises and their tattoo machines. But all they really offered was death.”
Still close to Martinez, she visits him often at Jessup. “I don’t justify what he did, but I ask God to help him,” she said. “The gangs are much worse now. I know after 20 years, even 40 years, they will still come after him.”
Martinez’s track record in the United States has been far from flawless. He accumulated multiple traffic citations, missed court dates and filing deadlines after an initial run-in with immigration authorities, and was finally jailed after the 2011 traffic violation. But for a full decade, he also avoided serious trouble and worked steadily — cutting grass, hanging drywall, washing dishes, driving a cab — until his arrest.
His legal case has been protracted and dizzying. Last year, two immigration courts ruled he was not eligible for legal protection, but in January they were overruled by the U.S. Court of Appeals for the 4th Circuit. In that decision, Judge Paul Niemeyer found that Martinez risked being killed if forced to return to El Salvador, and that his earlier gang involvement did not disqualify him from protection.
“Martinez is not a gang member. Rather, the social group he has identified is defined by rejection of gang membership and its attendant violence,” the judge wrote, adding that Martinez had repudiated gang life as a matter of “conscience” and should not be penalized for it.
Two other appeals courts have issued similar rulings, but the 1st Circuit reached an opposite conclusion in October in the case of Kevin Claros, a Salvadoran who came to the United States as a child, spent two years in a violent Latino gang in Boston, and claimed he feared reprisals from related gang members if deported to his homeland.
Although they found Claros “sincere” in wanting to leave the gang, the judges in that case did not think he would face persecution in El Salvador. They also found that Congress, in passing humanitarian laws, never meant to “grant asylum to those whose association with a criminal syndicate has caused them to run into danger.” To do so, the court added, would “offer an incentive for aliens to join gangs here as a path to legal status.”
But immigration lawyers and rights groups said the threats of harm to people such as Martinez and Claros are real, and that the lethal reach of Central American gangs is wide and persistent, with ex-members and their families often hunted across multiple borders and killed. The two largest gangs — MS-13 and 18th Street — have between 50,000 and 85,000 members in El Salvador, Honduras and Guatemala. MS-13 also has an entrenched presence in the United States.
The groups point out that U.S. law already bars anyone with a history of serious or violent crime from obtaining asylum or other forms of exemption from deportation. In some cases, they contend, former gang members are more victims of gang predations than willing participants.
U.S. Immigration and Customs Enforcement officials declined to comment on Martinez’s case, citing the pending appeals, and also rejected a reporter’s request to visit Martinez in detention.
After three years of being shifted among detention centers around the country, Martinez said he has spent a lot of time thinking about how he fell into gang life, and how he would advise other young Latinos to avoid it. He has met other former gang members who became more deeply involved than he did and are even less likely to find safety.
“I would tell young boys stay in school, stay close to their families, and not believe what the gangs tell them,” Martinez said. “For a lot of the older ones, it is too late. By the time they realize what’s going on, they are in a hole and they can never climb out.”