Punishing Survival: Gender-Based Violence and the Judicial Deployment of Legalized Exclusion in U.S. Asylum Cases, 2001-2023

• In Event: Sociology of Law Section Roundtables Session
  In Refereed Roundtable (60 minute): Sociology of Law Section Roundtables: Table 2 — Immigration, Law, and Belonging

Abstract

Despite the international recognition of gender-based violence (GBV) as a severe human rights violation, U.S. asylum law does not explicitly recognize GBV as a distinct basis for asylum protection. Thus, asylum applicants with claims related to GBV are required to fit their experiences into one of the five recognized protected categories established by the Refugee Act of 1980: persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. In this paper, we conduct an inductive coding and analysis of 168 written decisions by immigration judges (IJs) regarding asylum cases involving GBV to examine how political shifts and the legal volatility of GBV from statutory law, perpetuate significant biases, inconsistencies, and political variability in judicial interpretations and assessments of GBV asylum claims. We argue that immigration judges often utilize the legal framework of legalized exclusion – whereby state agents prioritize presidential political agendas and objectives to punish, expel, and protect national security – to readily delegitimize and discredit GBV survivor experiences resulting in to disproportionately denying protection, punishing, and expelling certain marginalized migrant groups. Our findings highlight three key points: 1) U.S. immigration judges often assess gender-based violence (GBV) claims without following trauma-informed practices, which pressures applicants to relive their violent experiences in ways that can cause further harm. Additionally, these assessments tend to define GBV narrowly as personal conflict, rather than recognizing it as persecution stemming from structural gender inequalities; 2) The U.S. asylum system frequently functions more as a means of exclusion rather than as a genuine sanctuary for those in need; 3) We advocate for the integration of trauma-informed, survivor-centered frameworks into asylum adjudication. This integration would help align legal practices with the protective objectives that the system purports to serve.

Authors

• Vicente Celestino Mata, Cornell University

• Veronica Valencia Gonzalez, University of South Carolina-Columbia