Abstract

Excerpted From: Jaclyn Kelley-Widmer and Estelle McKee, Essentializing Cultures in US Asylum Law, 89 Brooklyn Law Review 443 (Winter, 2024) (272 Footnotes) (Full Document)

Cultural essentialism is the distillation of a community's culture to a few elements that are salient to the outsider--elements typically tied to racist or sexist stereotypes, ignoring the depth and complexity of the culture. Legal advocates perpetuate cultural essentialization in asylum proceedings when they shape the story of the culture in their clients' home countries into the most legally and emotionally palatable case possible. Both immigration legal structures and our broader legal institutions encourage such essentalization. The asylum sphere especially requires compelling, credible stories that tick all the elements and align with precedent, resulting in formulaic, flattened stories. This article seeks to examine and redress this essentialization across asylum cases.

When the Board of Immigration Appeals (BIA or Board) and federal appellate courts find in favor of an asylum seeker, country-conditions evidence that presents a single story plays a significant part in the court's narrative, providing a roadmap for practitioners to prevail in similar cases. Prime examples of such essentialization come from cases involving Islam, where religion is essentialized; cases involving queer applicants, who are pigeonholed into a monolithic “'gay’ identity”; and domestic-violence cases originating in Mexico and Central America, where an extensive body of case law entrenches cultural stereotyping, which is exemplified in the case study below. This essentialized reduction of a person's story is harmful in many ways: it perpetuates colonial, racist stereotypes and amplifies the victim- savior narrative. These harms arise not only when advocates essentialize applicants' experiences, but also when they essentialize cultures in applicants' countries. Applicants, too, are impacted, as they may feel forced to join a narrative, silencing their true perceptions of their cultures.

Further, legal practitioners in the asylum field are in a perilous position, regardless of whether they either comply with or attempt to challenge this system. As advocates, our complicity in this process only furthers the entrenchment of racist and colonial othering. However, adopting a litigation strategy that ignores case law providing essentialized blueprints of a successful story can undermine the client's chances by throwing the case off the predictable path adjudicators expect or crowding the record with legally irrelevant information.

As practicing asylum attorneys in law school clinics, we have been part of the essentializing phenomenon at both the trial and appellate levels. For example, in the case of our client, Berta, our litigation strategy required us to maximize discussion of harmful elements of society in Berta's home country, flattening its cultural landscape into one of danger and repression. When she was a girl of fourteen years in her Central American hometown, Berta married a man twice her age. Her physically abusive father pressured Berta to accept the older man's proposal despite her reluctance, in part because the marriage would relieve the impoverished nine-person family of one mouth to feed. As soon as she was married, Berta's husband began regularly raping and beating her. So began over a decade of abuse that severely traumatized Berta and ultimately led to her asylum claim in the United States, won on this basis almost exactly twenty years after her marriage.

Berta's story, as condensed above, easily falls into the well-worn pattern of asylum claims relating to domestic violence. To explain why Berta suffered domestic violence in a manner acceptable to the asylum system, we focused on the cultural norm of “machismo” in her Central American country, especially in defining her “particular social group” (PSG). This narrative trope is readily recognizable to immigration adjudicators and advocates alike, and it appears across numerous asylum cases from this part of the world. Further, we argued that Berta's painful history qualified as persecution in part by explaining the cultural forces that both allowed her to be married off so young and then to be entrapped by her new husband with no recourse. We highlighted high rates of child marriage via news articles and scholarly reports of girls in her home country, patterns of domestic abuse inflicted upon these girls and young women, and police complacency in the face of spousal violence. We submitted country conditions that described the cultural norm of “machismo,” a phenomenon we framed as creating a “breeding ground for abuse” of women in these countries. Our expert witness testified to the failures of Berta's state to protect women from gender-based violence. We argued that her country's cultural norms suggest that women are inferior and lack credibility when reporting crimes against them. We relied heavily on these accurate but negative facts because the legal framework demands a narrow version of the country conditions that would best explain Berta's story, leaving out the nuances.

This article seeks to examine the cultural essentialization at play in cases like Berta's; that is, how the legal process creates and reproduces perceptions of the cultural environments from which asylum claims arise. Part I defines culture and then explains how the asylum process essentializes cultures through its legal framework, requiring cultural context by tracing the iterative case law that enshrines a particular narrative for a country's culture. Part II catalogues the harms (and possible benefits) caused by essentializing cultures, both for participants in the system and for society at large, in a critique informed by critical race legal theory. Part III proposes solutions ranging from an abolitionist approach to structural reforms to concrete client representation and litigation strategies, together with ideas for communicating with adjudicators and the media. And although this may often not be possible, there may be cases in which legal theories that leave room for complex or even positive narratives of a client's country of origin are appropriate. Finally, just as we are more than merely legal advocates, we propose considering more than merely legal means as a mechanism for promoting alternative perspectives of the client's culture.

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Cultural essentialization in US asylum law arose through a meandering legal path through international humanitarian law, black letter law, and the evolution of case doctrine. These legal frameworks create an inherently colonial, racist, and stereotypical structure that requires asylum applicants, their advocates, and adjudicators to rely on reductive and harmful cultural narratives. We call for envisioning a legal structure that would abolish the need to present such evidence. In the short term, we offer strategies and solutions for harm reduction and thoughtful intervention to disrupt these tropes and empower clients and communities.

Jaclyn Kelley-Widmer is a Clinical Professor of Law at Cornell Law School who teaches in the Lawyering Program and directs the 1L Immigration Law & Advocacy Clinic.

Estelle McKee is a Clinical Professor of Law at Cornell Law School who teaches in the Lawyering Program and codirects the Asylum and Convention Against Torture Appellate Clinic.