Essentializing Cultures in U.S. Asylum Law

59 Pages Posted: 4 Mar 2023 Last revised: 20 Mar 2024

Date Written: February 6, 2023

Abstract

Asylum applicants must tell a story about their home country that reduces and problematizes its culture. The requirements of asylum law demand that an applicant show why they will suffer persecution in their home country and that their government will not protect them from it. This legal framework prompts applicants to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive—or even complicit—in the face of it. Such a narrative necessarily reduces the applicant’s culture to its most negative and threatening features, eliminating complexity and flattening contours of positivity and joy. This essentialization of culture reinforces racism, stereotypes, and the narrative of Western moral superiority. And it harms all participants in the asylum system: applicants, advocates, and adjudicators. And once such a narrative succeeds in persuading an adjudicator to grant asylum, its constricted depiction of the applicant’s culture becomes the predominant story of that culture. Case law validates and amplifies the essentialized story. New asylum applications replicate it. The cultural concept of “machismo” exemplifies this cultural essentialization. In this piece, we trace the development of this concept as it ascends through agency and federal court case law to become the predominant narrative for Central American asylum claims based on the persecution of women applicants. We closely examine these harms through a lens of racial and social justice to unpack the colonial context of essentialization and challenge its utility. Lastly, we turn to detailed solutions that can potentially mitigate this phenomenon.

Keywords: asylum, immigration, culture, critical race theory, particular social group, international law, human rights law, gender, race

Suggested Citation

Kelley-Widmer, Jaclyn and McKee, Estelle, Essentializing Cultures in U.S. Asylum Law (February 6, 2023). 89 Brook. L. Rev. 443 (2024)., Cornell Legal Studies Research Paper No. 23-08, Available at SSRN: https://ssrn.com/abstract=4366941 or http://dx.doi.org/10.2139/ssrn.4366941

Jaclyn Kelley-Widmer (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-9898 (Phone)

Estelle McKee

Cornell Law School ( email )

607-255-5135 (Phone)

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