Gendered Asylum

Race and Violence in U.S. Law and Politics

Sara L McKinnon

• Publisher: University of Illinois Press
• Year: 2016
• Print ISBN: 9780252081910, 9780252040450
• eBook ISBN: 9780252098888
• Topic: Social Sciences
• Subtopic: Political Freedom
• Index: Social Sciences

Women filing gender-based asylum claims long faced skepticism and outright rejection within the United States immigration system. Despite erratic progress, the United States still fails to recognize gender as an established category for experiencing persecution. Gender exists in a sort of limbo segregated from other aspects of identity and experience.

Sara L. McKinnon exposes racialized rhetorics of violence in politics and charts the development of gender as a category in American asylum law. Starting with the late 1980s, when gender-based requests first emerged in case law, McKinnon analyzes gender- and sexuality-related cases against the backdrop of national and transnational politics. Her focus falls on cases as diverse as Guatemalan and Salvadoran women sexually abused during the Dirty Wars and transgender asylum seekers from around the world fleeing brutally violent situations. She reviews the claims, evidence, testimony, and message strategies that unfolded in these legal arguments and decisions, and illuminates how legal decisions turned gender into a political construct vulnerable to American national and global interests. She also explores myriad related aspects of the process, including how subjects are racialized and the effects of that racialization, and the consequences of policies that position gender as a signifier for women via normative assumptions about sex and heterosexuality.

Wide-ranging and rich with human detail, Gendered Asylum uses feminist, immigration, and legal studies to engage one of the hotly debated issues of our time.

CHAPTER 1

Transnational Publicity, Gender-Based Violence, and Central American Women's Asylum Cases

After a fourteen-year appeal, Rody Adali Alvarado Peña¹ of Guatemala won political asylum in the United States in 2009. Alvarado came to the country in 1995 after ten years of severe intimate violence, including being “kicked in the vagina, and kicked in the spine in an attempt by her husband to force a miscarriage of her second child. She survived a dislocated jaw, near amputation of her hands with a machete, and having her eye nearly pushed out.”² Alvarado tried multiple times to leave, but her husband Osorio found her regardless of where she went. She filed reports with the Guatemalan police; officers laughed in her face. She filed for divorce, only to be told by a judge that he would not permit the divorce without Osorio's consent. As there were no women's shelters in Guatemala, invoking her rights under the UN Convention on Human Rights, Alvarado fled the country to the United States, where she claimed asylum on the basis of ten years of intimate violence and the Guatemalan government's unwillingness to intervene.

The immigration judge who first heard Alvarado's plea in 1995 granted her asylum, explaining that her case was in line with recent U.S. and international asylum protocol that addressed the specific types of violence that women experience because of their gender. The judge pointedly explained in the decision that domestic violence was a form of persecution that disproportionately impacted women and young girls, and that Alvarado had suffered enough harm in the face of a glaring unwillingness on the part of Guatemalan officials to intervene.³ Most important, the judge unequivocally recognized Alvarado as a political subject who fit the refugee conventions on two grounds: social group membership and political opinion. As explained in the case brief, “The social group was defined by nationality, gender, and marital status (Guatemalan women, who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination), and the political opinion was that of opposition to male domination.”⁴

Upon notification of the asylum grant, the Immigration and Naturalization Service (INS), acting on behalf of the state, appealed the decision to the Board of Immigration Appeals (BIA), arguing that Alvarado was not entitled to political refuge. Specifically, the INS took issue with the constitution of Alvarado's social group and questioned the political nature of the violence.⁵ Upon evaluation of the case, in 1999 the BIA reversed the judge's affirmative decision and put Alvarado into deportation proceedings, directly using language from the INS appeal to frame its decision that Alvarado was ineligible. Alvarado's lawyers immediately appealed the decision, though it would be ten years before the case would be fully evaluated again. This time, however, there was no opposition to Alvarado's eligibility; in fact, U.S. state attorneys, under the direct advisement of the U.S. attorney general wrote an amicus brief in support of Alvarado's bid for asylum. In December 2009, in yet another immigration courtroom in San Francisco, California, Alvarado would receive final word. The judge explained, “Inasmuch as there is no binding authority on the legal issues raised in this case, I conclude that I can conscientiously accept what is essentially the agreement of the parties [to grant asylum].”⁶ Alvarado won asylum, for a second time.⁷

There are numerous issues in this case that might draw a critic's attention, some of which I have taken up in other venues.⁸ In this chapter, though, I question what happened in the midst of this ten-year span—between the BIA's negative decision in 1999 to the 2009 affirmative decision—that enabled or, perhaps more accurately, necessitated such a drastic discursive shift in state rhetoric and recognition of Alvarado's eligibility. I interpret this shift against the broader geopolitical landscape that unfolds in the midst of Alvarado's tenuous bid for final word. Specifically, I argue that this shift is mobilized through the consolidation of transnational publicity about gender violence, violence in Central America, and women's human rights that emerge in the aftermath of Alvarado's case. This transnational publicity enabled new frames of recognition for the United States’ own involvement in and proximity to the gender violence that women from Guatemala and El Salvador flee, allowing the United States to go from bloody supporter of the civil wars, which Central American women were fleeing, to pastoral protectors of women's rights. A consequence of this enabling publicity, though, is the fixing of femicide and militarized sexual violence on to the bodies and geographies of Central America. Against this transnational publicity, Central America and, by association, Mexico come to be racialized as physically and sexually violent to women—sometimes to the point of death.

Transnational Publicity

The concept of transnational publicity is jointly informed here by public sphere theorizing and transnational feminist theory. Publicity highlights the “actions and activities,” as Daniel C. Brouwer and Robert Asen argue, that constitute how subjects and issues can be received in particular publics.⁹ Mimi Sheller and John Urry develop this process-definition further by arguing that publicity emphasizes movement and circulation, meaning not only the ways discourse traverses different spaces but “how people (and objects) move, or desire to move, between the supposedly private and public domains.”¹⁰ Publicity draws us to think of material, events, and ideas that are announced to the world, promoted, and in their promotion made real for particular publics. This idea recognizes that an event is only an event if people have learned about it prior to the event and show up. For example, a blockbuster movie never becomes a blockbuster without the trailers, media attention, and hyping among friends that make people show up to the movie theaters on opening night and buy tickets. Much like blockbuster movies, human rights issues need publicity, or “staging,” as Wendy Hesford calls it, to become real to interested publics.¹¹ Because the scale of human rights abuses is most often beyond the boundaries of the nation-state, these events need transnational attention—in the form of publicity—to become real to publics. While there are certain large-scale institutions that offer information about human rights problems, the production of human rights publicity is eclectic and diffuse in nature—made up of bodies of organizations, groups, and individuals with varying levels of institutional power that are interested in bringing attention to a particular issue. Toward conceptualizing the diffused mobility and circulation that publicity evokes, I combine this notion with Rebecca Dingo's term “transnational networks”¹² and Inderpal Grewal's concept “transnational connectivities,” which both highlight “the myriad connections that characterize the transnational arena”¹³ and produce publicity that can move, get taken up in particular contexts, and serve as attention and pressure toward particular claims. Both concepts also draw attention to the way discourse is produced through disparate and connected groups and individuals. The publicity generated in these diffused networks and connectivities shapes the options that publics have in understanding and framing particular issues and subjects. Putting these two concepts together—transnational and publicity—I deploy transnational publicity to refer to the rhetorical crafting and circulation of discourse by a broad range of advocacy groups, individuals, and organizations that intervene in particular rhetorical situations, constraining and enabling the options that publics have in responding to the issues and subjects they take up. As a concept congruent with networks and connectivities, transnational publicity allows scholars to ask, What does the publicity do within transnational publics? What story does the publicity construct? What instrumentalities does the publicity enable? What does the publicity conceal from public view? In this way, the concept shifts us from tracking movement and linking and asks us to consider how the publicity influences a public's framing, understanding, and meaning making of an issue, as well as what those hermeneutic effects enable in the political sphere.

Transnational publicity is a mediating force, paving the way for a shift in the state's recognition of its involvement in the structures of violence that women such as Alvarado flee. The publicity about gender violence that circulated in the aftermath of Alvarado's case articulated gender violence in ways that freed the United States of recognizing itself as complicit in the structures of violence that Central American women flee. It also racialized Central America in that it fixed particular types of gender violence to the bodies and lands of this geographical locale. To understand this enabling effect, I begin my analysis a few years before Alvarado's case in the late 1980s, with the asylum cases of women from Guatemala and El Salvador who also sought refuge for reasons relating to sexual and physical violence. My task in this section is to etch out the contours of U.S. involvement in the structures of violence that Central American women were fleeing, and also to demonstrate the early U.S. response to these women's requests for refuge. Part 2 will detail the staging of transnational publicity about gender violence, and violence in Central America that circulates after Alvarado's 1999 denial. My contention is that this publicity enabled the United States to recognize itself, without complicity, as a pastoral state that protects women from violence. This, in turn, constrains state officials in Alvarado's case, as they dare not refuse her right to refuge, lest they be seen as a state that is itself volatile and violent against women.

Early Central American Case Law

When President Ronald Reagan took office in January 1981, Guatemala and El Salvador had already launched into civil wars that would take both countries another decade to calm. In total, 200,000 people died in Guatemala, while another forty-five thousand (a very narrow estimation) are now considered los desaparecidos, or forcibly disappeared persons. Salvadorans faired no better during the decade; approximately seventy-five thousand lost their lives as the Salvadoran army tried to squelch the mounting power of leftist groups who were led by the Frente Farabundo Martí para la Liberación Nacional, or FMLN. Such violence caused eighteen-year-old Carmen Gomez to leave her home of El Salvador in 1979, traveling the span of Guatemala and Mexico to San Ysidro, California, where she entered the United States. Gomez had experienced personally what civil war meant in her country; from the time she was age twelve until she was fourteen, she experienced five separate instances when guerrilla soldiers forcibly entered her home and physically and sexually assaulted her. In the midst of escalating violence across the country, when her mother died in August 1979, Gomez fled the country to later claim asylum on the basis that she was a part of a large social group of “women who have been previously battered and raped by Salvadoran guerillas,” and because of this she could be “subject to, and singled out for, persecution in El Salvador.”¹⁴

Around the same time, fellow Salvadoran native Sofía Campos Guardado made a similar plea to the United States for exile.¹⁵ In her case, Campos Guardado noted two experiences that caused her to leave El Salvador for refuge in another country. In 1984, Campos Guardado took a trip to the home of her uncle, who was the director of a local agricultural union participating in the Land Reform Movement, to take care of errands for her father. Not long after she arrived, a group of armed men and women appeared at the farm and demanded that her uncle give them the cooperative's money. The group seized Campos Guardado and her family members, and according to INS documents, “They dragged Ms. Campos, her uncle, a male cousin and three female cousins to the rim of the farm's waste pit. They tied all the victims’ hands and feet and gagged the women.”¹⁶ The group murdered the men and afterward raped Campos Guardado and her female cousins; all the while, “the women who accompanied the attackers shouted political slogans.”¹⁷ Campos Guardado and her female family members were then verbally threatened and set free. They fled, and upon reaching a hospital in San Salvador, “Ms. Campos suffered a nervous breakdown and had to remain in the hospital 15 days.”¹⁸ When she exited the hospital, Campos Guardado returned to her parents’ house in the city. Shortly after returning, two men her mother introduced as her cousins appeared at her parents’ home. Campos Guardado recognized one of the men as her assailant and realized he was there to watch her as he “later sought her out several times and threatened to kill her and her family if she revealed his identity.”¹⁹ Recognizing that she may not be safe in El Salvador, she fled the country in the fall of 1984 and filed for asylum relief.

Traveling a similar northbound migration path two years prior, Salvadoran Olimpia Lazo Majano also arrived at the United States’ southern border seeking refuge on the basis of political persecution. Lazo Majano was married to a man who had to seek exile outside of their home city because of his choice to exit Organización Democrática Nacionalista (ORDEN), a murderous paramilitary organization affiliated with the Salvadoran army. Lazo Majano herself chose to stay in their small town, as it had been her home since she was a child, and she didn't want to leave.²⁰ After her husband's exit in 1982, army Sergeant Rene Zuniga approached Lazo Majano and asked if she might work for him doing laundry. She agreed, as she had known Zuniga since she was a child. For six weeks she did his laundry on her day off without complaint. One day, Zuniga pointed out that her husband was no longer in El Salvador, and then he raped Lazo Majano. For months Zuniga tormented Lazo Majano: “He broke her identity card in pieces and forced her to eat the pieces. He dragged her by the hair about a public restaurant. He pummeled her face, causing a blood clot to form in one eye; she thought she had lost the eye.”²¹ The sergeant threatened to kill her and her husband if he returned: “Zuniga told Olimpia that it was his job to kill subversives…he would have her tongue cut off, her nails removed one by one, her eyes pulled out and then she would be killed.”²² As recalled in the court testimony, Zuniga stated, “And I can just say that you are contrary to us; subversive.”²³ Zuniga backed this statement up again when he “told a friend from the police, ‘in front of all the other people in the restaurant,’ that she was a subversive and that was why her husband had left: because she was a subversive.”²⁴ Threats and physical violence of this nature continued for three months; Lazo Majano then left the country.

The experiences of Guatemalan women who filed cases contemporaneously with Gomez, Campos Guardado, and Lazo Majano are replete with similar details; Sonia Juarez Lopez reported that a man nearly twenty years her senior repeatedly raped her, starting when she was approximately twelve or thirteen years old, and threatened to kill her if she told anyone.²⁵ An anonymous asylum seeker testified to her father's kidnapping, torture, and ultimate murder, testimony which later resulted in her own physical and sexual assault because the man who killed her father found her, threatening to kill her if she reported the murder.²⁶ Another woman reported severe sexual and physical violence by her father when she was a child and by her husband later on. She reported that she feared “returning to Guatemala because of the awful memories of what her father did to her, and because she is afraid her ex-husband will kill her.”²⁷ Yet another woman suffered abuse at the hands of her common-law husband, who was a police officer in Guatemala. Before the U.S. immigration officials who evaluated their cases, these women were unilaterally denied asylum on the basis that their experiences of violence were more personal than political, that their social group didn't count in accordance with the refugee definition and precedent defining what counts as an eligible social group. Furthermore, even if the women were members of the named social group, officials often reasoned that their persecutors would not identify them by their membership in gendered social groups, thus precluding their eligibility.

The Salvadoran women faired no better. The BIA explained in its negative ruling of Carmen Gomez “that [Gomez] has failed to demonstrate that the guerrillas are inclined or will seek to harm her based on her association with a particular social group.”²⁸ The Court of Appeals affirmed this ruling, elaborating, “Gomez failed to produce evidence that women who have previously been abused by the guerillas possess common characteristics—other than gender and youth—such that would-be persecutors could identify them as members of the purported group. Indeed, there is no indication that Gomez will be singled out for further brutalization on this basis.”²⁹ Similarly, the judges told Campos Guardado that she was not entitled to asylum. The Court of Appeals board explained: “While the attackers may have been motivated by their own political goals such as, for example, the intimidation of other peasants involved in land reform, the record does not establish that [Ms. Campos] was persecuted on account of any political opinion she herself possessed or was believed by the attackers to possess.”³⁰ In Lazo Majano's case the immigration judge and BIA agreed that “the evidence attests to mistreatment of an individual, not persecution,”³¹ elaborating that “the fact remains that such strictly personal actions do not constitute persecution within the meaning of the Act.”³² Lazo Majano would ultimately win asylum when ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1 - Transnational Publicity, Gender-Based Violence, and Central American Women's Asylum Cases
• 2 - Fixing Bodies, Fashioning Subjects: Constructing Gender through Rhetorics of Freedom and Choice
• 3 - Standing in her Shoes: U.S. Asylum Policy for Chinese Opposing Population Control
• 4 - The Rhetoric and Logic of one Sex, One Gender
• 5 - The Reading Practices of Immigration Judges: Intersectional Invisibility and the Segregation of Gender and Sexuality
• Conclusion
• Notes
• Index
• About the Author