Under the Immigration and Nationality Act (“INA”), a refugee seeking asylum must prove she “(1) has a well-founded fear of persecution; (2) on account of a protected ground [e.g., race, religion, nationality, membership in a particular social group, or political opinion]; (3) by an organization that the Salvadorian government is unable or unwilling to control” Hernandez-Avalos v. Lynch, 784 F.3d at 949 (4th Cir. 2015).

Odalis Mireida Chicas-Machado, a native citizen of El Salvador, faced escalating persecution from MS-13 gang members during her walks to and from church. Chicas-Machado v. Garland, 73 F.4th 261, 263 (4th Cir. 2023). Due to harassment from gang members to have her abet their activity—and their subsequent death threats when she refused—she sought asylum in the United States, contending that her religious beliefs and activities with the church made her a target. Id. at 264. However, both the Immigration Judge and the Board of Immigration Appeals (“BIA”) denied her application, questioning the nexus between her persecution and religion, as well as the viability of her proposed social groups. Id. Chicas-Machado sought review of the decision, emphasizing the life-threatening circumstances she fled in pursuit of safety and protection. Id.

In District of Columbia v. Heller, the Supreme Court ruled the Second Amendment confers an individual right to keep and bear arms to law-abiding, responsible citizens and “members of the political community” District of Columbia v. Heller, 128 S. Ct. 2783, 2790 (2008). In McDonald v. City of Chicago, the Court held the individual weapon-owning right to be a fundamental right incorporated against the states by the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chi., 130 S. Ct. 48 (2009).

More recently, many of the U.S. Circuit Courts of Appeal have examined precisely who can be considered a law-abiding citizen and members of the political community in this context. These cases have examined the constitutionality of 18 U.S.C. § 992(g), a provision of the amended Gun Control Act of 1968 that prohibits the sale or possession of firearms to nine categories of individuals, including undocumented immigrants. Specifically, these cases have questioned whether the Second Amendment and the right to bear arms apply to undocumented immigrants, thereby making § 992(g) unconstitutional.