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Abstract
This essay examines how gender is figured as a discourse of U.S. political asylum through women's early gendered claims to political asylum. Using an archeology methodology, I explore how gender comes to matter discursively and materially in asylum courtrooms. Specifically, I find that sexual difference is used as an organizing schema for sexual violence, political access comes through assumed relationships to men with power, and women's subjectivities are figured as personal and private by court officials.
Notes
Similar to asylum, withholding of removal is a form of protection that allows noncitizens to stay in the United States if they fear persecution in their home country. Withholding of removal, however, is a less secure form of protection than asylum. It allows noncitizens to legally remain in the United States and legally work, but they cannot apply for permanent residency. Also, those who win withholding cannot travel outside of the United States. Interestingly enough, the standards for withholding are also higher than they are for asylum cases. To win withholding, applicants must prove that they will be “more likely than not” persecuted if returned to their home country, but applicants do not have to file within one year of entry of the United States in withholding cases. If they have been convicted of certain crimes in the United States they can still qualify for withholding of removal.
Carrie Crenshaw (Citation1996) explicates the ways in which the U.S. legal system and courtroom reify patriarchal order via the emphasis on precedent and objectivity, even when attempting to be inclusive of women's experiences.
In 1995 the Immigration and Naturalization Service (INS) published a memorandum titled “Considerations for Asylum Officers Adjudicating Asylum Claims from Women” that was supposed to serve as guidance for immigration judges and officers in evaluating women's gender-based asylum claims (Coven, Citation1995). The document offered, however, serves more as advice than requirement. This means that it can be interpreted, or even ignored, at a judge's will.
Following Campos-Guardado and Lazo-Majano, there were a number of Iranian women who claimed asylum on the basis of being persecuted because they either held feminist political opinions or because they believed in Western constructions of womanhood. These cases illuminated the ways that certain political opinions can be gendered, though their claims were largely unsuccessful. The next wave were cases on the basis of intimate violence, including the now famous case of Rodi Alvarado, who won asylum in December of 2009 after a 14 year appeal process. Shortly thereafter, persecution on the basis of female genital circumcision entered the discourse, providing a largely successful route for women and their daughters to gain asylum in the United States. At the same time, forced sterilization and abortions for Chinese citizens became protected in U.S. law, and persecution on the basis of sexual orientation and sexual identity became means to gain asylum.
To simplify, there are two basic processes that the United States uses to admit refugees, third-country refugee resettlement and asylum. Both utilize the definition of refugee to determine whether the individual merits protected status. In third-country resettlement groups of refugees from particular countries/cultures are chosen through an application and interview process to be resettled in the United States with the help of volunteer agencies such as the International Rescue Committee and the Lutheran Immigrant and Refugee Services. With asylum, an individual arrives at a place of entry and claims asylum to immigration officers because of a well-founded fear of persecution or the individual enters the United States and later claims asylum.
Asylum seekers are evaluated via two processes of affirmative asylum involving applications and interviews with asylum officers or via defensive asylum, which is evaluated through the court system. The affirmative process is reserved for people who entered the country with valid visas, and, additionally, those who have relatively accepted reasons for claiming asylum. The defensive process is how people who are not in legal immigration standing must make their claims and where the most contested cases are decided. This happens because the defensive process involves judges who can evaluate the merit of their claims against the law. In this essay I focus on defensive asylum cases, as this is where the precedent for U.S. asylum is constructed.