Defined by the Flood: Alarmism and the Legal Thresholds of US Political Asylum

ABSTRACT

Alarmism has enabled the extension and reconfiguration of sovereign power at thresholds of human mobility in ways that exemplify the shifting and polymorphic nature of borders. Extending critical geopolitical scholarship on alarmism and the geographies of bordering, this paper examines how alarmism is used to exert control over legal-discursive thresholds that people must cross to gain political asylum in the US. By analysing the most ambiguous area of asylum protection: proving that persecution is motivated by one’s “membership in a particular social group”, I demonstrate how refugee definitions are often contested and changed in response to “floodgate fears”, a type of alarmist legal argumentation. Rather than addressing the merits of an individual asylum case, the floodgate argument invites speculation about the effects a particular juridical decision will have on future cases, and therein translates wider racist, nationalist fears of being overwhelmed by alien “others” into otherwise banal legal codes. In precedent-setting asylum law, these fear-laden speculations can shape legal-discursive thresholds for years to come, enacting targeted exclusion and widening the pool of “legitimate” targets of evolving border enforcement tactics. This analysis of legal alarmism and the formation of asylum case law focuses on the unique relationship between the particular social group threshold and the history and contemporary struggles of Central American asylum seekers.

Notes

1. Case law, in this context, refers to a type of law-making comprised of binding judicial decisions, or “precedents”, which guide subsequent decision-making in cases deemed similar. Judges, in other words, cite other judicial decisions to explain a legal outcome. Case law is sometimes defined as “judge made law”, which highlights its distinction from law codified in statutes. Case law is a central feature of common law systems, such as those found in the US, Canada and the UK, and as a result, is sometimes used as a synonym for common law systems. In this paper, case law refers to precedent-setting asylum decisions issued by appellate level courts – the Board of Immigration Appeals, federal circuit courts – and the Attorney General. In civil law systems, such as in Germany, Spain or France, decision-making is more closely tied to specific legal codes issued by legislative branches but judicial interpretation plays a significant role in all types of legal systems.

2. All asylum adjudicators wield tremendous discretionary power and the odds of winning asylum depend on the judge (Ramji-Nogales et al. 2009). In the US system, however, appellate level judges have the added power of publishing their decisions as precedent-setting. All asylum claims are first heard by adjudicators housed in the executive branch of government. If a case is not granted at the initial screening, it is reviewed by an Immigration Judge. Immigration Judges’ decisions can be appealed to the Board of Immigration Appeals, the highest administrative court with the power to publish decisions as precedent. Decisions by the Board of Immigration Appeals can be appealed to federal circuit courts, which are in the judicial branch. Although these circuit courts are of a higher authority, their decisions only have power in their specific territorial jurisdictions of which there are 11 in the US (see Germain 2010, 16–18).

3. For example, in 1984 approval rates for Salvadoran and Guatemalan asylum cases were under 3% whereas it was 60% for Iranians, 40% for Afghans and 32% for Poles (Gzesh 2006).

4. This decision was later nullified by Attorney General Reno (see Gorman 2018).