Chapter 7 Keeping Them Vulnerable Female Applicants and the Biopolitics of Asylum in Texas

Background: Gang Violence Against Central American Women

Gender-based violence by gangs and intimate partners, particularly against girls and women, has become routine in Central America. Two gangs, Mara Salvatrucha (MS-13) and Calle 18, have terrorized Central American women. Gang members show their masculinity by raping, kidnapping, torturing, and carving tattoos on the bodies of women, girls, and members of the LGBTQ+ community.2 In a state of impunity, social violence against women expresses itself through the violent murder of women or femicide. The term femicide has been defined by feminist sociologist Diana Russell as “the killing of females by males because they are female.”3 Because of patriarchy and misogyny, this culturally permitted practice bolsters male dominance and relies on the presence of systemic impunity and historically rooted gender inequality.4 Many feminist scholars have studied cases of femicide in Ciudad Juárez on the Mexico-US border.5 However, this type of hate crime against women also has reached alarming proportions across Central America. In El Salvador, a high rate of gender-based violence continues to make it one of the most dangerous countries to be a woman.6 In fact, El Salvador has the highest rate of femicide in the world, Guatemala is third, and Honduras is close behind at seventh.7 Women suffering domestic violence or trying to leave their violent partners are at significant risk. Although partners of the victims carry out these crimes, in a high proportion of cases, the murderers are connected to gang violence.8 In Guatemala, for example, femicide exists because the state does not guarantee the protection of the rights of women.9 In Honduras, women’s naked and tortured bodies were found with their legs open as a demonstration of male power to spread terror among women.10 In Honduras, in 90 percent of cases, femicides continue to go unpunished.11 In El Salvador, violent deaths of women show signs of severe cruelty, such as stoning, asphyxiation, or hanging. From January through October 2017, 395 women were killed in the country.12 Thus, many Central American women have been left unprotected by states and have become victims of femicides. The exacerbated levels of crime against women and the weak intervention of Central American states to decrease the levels of impunity have pushed women to flee their home countries and seek safety in the United States, where they face several challenges. Unlike race, nationality, or religion, gang violence is not an obvious ground to grant asylum. Therefore, the main difficulty for those fleeing gang violence is to prove fear of persecution. Traditionally, asylum seekers can only support their claim based on group membership or political opinion.

In what follows, I discuss how, despite the complex insecurity scenario in El Salvador, Honduras, and Guatemala, US security authorities have turned away Central American female asylum seekers fleeing from gang-related violence at the border, separated them from their families, detained them in US detention facilities, and denied their asylum claims. These deterrence mechanisms have become part of a broader system of exclusion based on race-ethnicity, class, and gender of asylum applicants that deploys power through regulation of a population considered less productive for US interests. Former president Trump considered female asylum seekers from Central America a fiscal burden.13 In the case study analyzed in this chapter, I propose understanding the biopolitics of asylum as the several security dispositifs deployed by the Trump administration to exercise biopower as a regulatory power over the asylum claims and mobility of women from Central America escaping gender-based violence.

Biopower, Biopolitics, and Security Dispositifs

Understanding how biopolitics operates is fundamental to defining biopower. This term was coined by French philosopher Michel Foucault in the first volume of The History of Sexuality and Security, Territory, Population. While sovereign power refers to the right to decide life and death, biopower, an essential element of modern capitalism, marks the move from the sovereign power over death to the sovereign power over life.14 Thus, power no longer exclusively worries about the security of the sovereign and the associated territory but rather about the security of the population.15 The new role of the sovereign includes a governmental practice that involves the management of populations.16 This new power over life is biopower, which is a technology of power used by modern states as a mechanism of government and those who govern a population.17 Based on this notion of biopower, the population, nevertheless, is not the mere sum of individuals inhabiting a territory; it depends on a set of variables and new disciplines such as economic observation and demography. Thus, according to Foucault, the population refers to statistics such as the birth rate, migration, longevity, public health, mortality, employment rates, or housing used by governments to manage life but also to prevent insecurity in their territories.18 Diverse techniques for achieving the control of populations mark the beginning of the biopower era, focusing on the individual body through surveillance, inspection, reporting, and separation/exclusion.19 These interventions and regulatory controls are what Foucault called the biopolitics of the population.20 Biopower thus ensures that the population is disciplined and regularized to serve the interests of the state.21 Life itself has become the main reference object for security practices.22 In sum, biopower is the power over a population, and it is materialized in society through biopolitics. Specifically, biopolitics refers to the tactics, dispositifs, and mechanisms deployed by a specific political system to manage and regulate populations. In the context under study, the regulation of asylum is a fundamental source of biopolitical analysis.

Two security dispositifs have distinguished modernity. A dispositif entails a set of social relationships involving a diverse ensemble of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, and scientific statements.23 Most importantly, a dispositif is understood as a discursive way of ordering things in a certain domain to make a course of action possible.24 For instance, in the security domain, a dispositif involves discourses, policies, institutions, and laws responsible for regulating the population aimed at mitigating threats against the state and its territory. According to Michael Dillon, the first dispositif refers to the geopolitics of security that has defined its reference object around sovereign territoriality; this dispositif is the tool of sovereign power. The geopolitics of security deals with the mechanisms of war, diplomatic alliances, and subjective personal interests. The second dispositif, the biopolitics of security, deals with the problem of life in terms of population or, in more concrete terms, with the ways biopower is exercised.25 The biopolitics of security is interested in the power/knowledge nexus within governmental technologies, which raises the contingency of a threat.26 Since biopolitics is part of the security apparatus, the state of emergency is permanent in security policy.27 Through the coexistence of geopolitics and biopolitics, society must be defended from those threats to the life of a population, because a vulnerable population could become a threat to the national security of the state.

Once contingency becomes the nucleus of security mechanisms, population mobility is regulated. This way of understanding security problems fosters the “biopolitics of contingency.”28 The contingent as risk, therefore, gives rise to a society at risk that must be regulated. Security problems are contained in speeches of danger, such as the discourse of US officials in the face of the massive asylum crisis of Central American women.

Intersectional Analysis of Defensive Asylum Applications

Although the regulation of asylum is a fundamental source of biopolitical analysis, it cannot be treated as a genderless experience. Furthermore, ignoring the intersectional interplay of gender with other dimensions of inequality in asylum is problematic. Intersectional feminism enhances our understanding of the diverse racial, class, and gendered experiences of female asylum seekers. Black feminist scholar Kimberlé Crenshaw, one of the founders of critical race theory in the US legal academy, introduced the term intersectionality.29 This term analyzes the experiences of discrimination of several social groups, especially women of colour, and conceptualizes the relation between systems of oppression as they construct a person’s multiple social locations in hierarchies of power and privilege.30 Through the study of intersectionality, we can understand the interactions among gender, race, class, and other categories of difference “in individual lives, social practices, institutional arrangements and cultural ideologies and the outcomes of these interactions in terms of power.”31 Women of colour are discriminated against not only based on their gender but due to the intersection of their multiple identities. In the context under study, the biopolitics of asylum must be understood as the strategic rejection of female applicants based on their intersecting identities through the ensemble of security dispositifs aimed at excluding the subject of asylum. As a security dispositif, the biopolitics of asylum is reproduced through law, border enforcement, family separation, detention, and denial of asylum claims in immigration courts. Consequently, the US government regulates asylum seekers through the deployment of biopower, severely impacting women who are positioned in hierarchies of gender, race, ethnicity, and class.

The biopolitics of asylum shows its regulatory control through the division of affirmative and defensive procedures. Even though the United States is a signatory to numerous international agreements relating to nonrefoulement and has embedded them in several sections of the Immigration and Nationality Act (INA), it routinely deters, detains, and deports asylum seekers. Section 208 of the INA authorizes the granting of asylum. The grounds for granting asylum are the same as those for granting refugee status; however, there are some differences under US law. While an individual seeking asylum is already physically within the borders of the United States or seeking admission at a port of entry, a person must be outside the boundaries of the United States to apply for refugee status.32 To apply for affirmative asylum, the person must be present in the United States and submit an asylum application within a year of their arrival. Many times, affirmative asylum seekers entered with a valid visa, such as a tourist visa, and overstayed.33 In contrast, defensive asylum applicants usually do not possess a visa and express their intention to seek asylum at the port of entry or are otherwise put into removal proceedings by an asylum officer.34 Thus, the experience of asylum seekers is not homogeneous; claimants’ identities—based especially on their class but also their gender, race, and ethnicity—play a significant role.

The biopolitics of asylum targets low-income individuals who more often go through defensive asylum procedures. Many poor defensive applicants are not able to access resources to help with their asylum claims, while most affirmative asylum seekers have easier access to resources that increase their odds of a successful asylum claim. Unlike affirmative applicants, many defensive asylum applicants do not receive a clear explanation when their case is denied; they are just told that their application has failed to prove past or future persecution.35 Affirmative applicants are usually middle class and know that presenting themselves at a port of entry could place them in a detention centre; defensive applicants have limited choices,36 since they cannot apply for a visa in their home countries and overstay it in order to begin the affirmative process in the United States in the first place. In this chapter, I discuss the biopolitics of asylum using the case of defensive applicants. Through several interviews conducted with immigration attorneys and migrants’ advocates, it was revealed that these women are generally low income, and some are from ethnic minorities in Honduras, Guatemala, and El Salvador. The interviews show the multiple forms in which the biopolitics of asylum regulates Latina women of colour through several punitive practices.

Central American victims of domestic violence are generally poor and can turn into a public charge, depending on the US government for financial support. Although the public charge ground of inadmissibility has been a part of US immigration law for more than a century, refugees and asylum seekers are not subject to this type of inadmissibility.37 Nevertheless, attempts at removing domestic violence as a basis for political asylum was another security dispositif of the Trump administration to limit the granting of asylum to poor Central American female applicants who could potentially become public charges after adjusting their status as permanent residents. In June 2018, former attorney general Jeff Sessions issued a ruling instructing immigration judges to deny all asylum claims based on fear of domestic abuse or gang violence.38 Consequently, the Department of Homeland Security issued guidance for asylum officers, declaring, “Few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may . . . pass the ‘significant probability’ test in credible fear screenings.”39 The aim of this guidance was to obstruct the first step in seeking asylum: the initial credible fear determination. However, US District Court judge Emmet Sullivan issued a permanent injunction on Sessions’s order, stating it violated US immigration law.40 The injunction functions to prohibit the government from applying unlawful portions of Sessions’s ruling. Without the injunction, it would have effectively eliminated domestic or gang violence as a claim for asylum, making it even more difficult to win a claim and leaving many asylum-seeking victims of this form of violence—in particular, low-income Central American women—completely unprotected.

In the United States, gender asylum has been a controversial issue. The term gender asylum describes claims in which the form of persecution is unique to or disproportionately inflicted on women (e.g., female genital cutting, domestic violence, rape, or forced marriage). According to Karen Musalo, opponents of gender asylum claim that the 1951 Refugee Convention was never intended to protect victims of gendered persecution. First, they claim that the harms suffered by women often consist of acts tolerated by cultural norms; therefore, this has resulted in a reluctance to define them as persecution. Second, they affirm that nonstate actors such as husbands, fathers, or members of the applicant’s extended community are the perpetrators of gendered harm; therefore, there has been resistance to accepting such claims within the refugee definition.41 Under US law, it is required that the fear of persecution must extend to the entire country of origin. Consequently, a female applicant must do more than show a well-founded fear of persecution in a particular place within a country to meet the definition of a refugee; she must show that the threat of persecution exists for her countrywide. Defensive female applicants thus face biopower through the denial of their asylum claim. For example, some battered women may be denied asylum because they could have sought safety from the batterer by simply moving to another town in their country of origin. In this context, national protection takes precedence over international protection. In addition to the controversy around gender asylum and defensive asylum claims, the US government has exercised biopower over female applicants through several security dispositifs such as border enforcement, detention, and denial of asylum claims.

Border Enforcement

Female asylum seekers have become the target of the biopolitics of asylum through border enforcement and the family separation policy. From October 2018 to June 2019, 37,573 family units; 50,439 single adults; and 3,542 unaccompanied minors presenting themselves at ports of entry on the Southwest border were deemed inadmissible.42 The Trump administration’s policy of zero tolerance through US Customs and Border Protection (CBP) became part of numerous security dispositifs; this policy has frequently deterred asylum seekers from Central America and turned them away along the US southern border.43 In Texas, CBP officers actively discourage asylum seekers at ports of entry, within a hundred miles of the border, and in the middle of international bridges, avoiding the provision of protection to those seeking asylum from violence and persecution.44 Furthermore, under the “zero-tolerance” policy, US Immigration and Customs Enforcement (ICE) and US CBP have separated children from parents arriving at the border. Based on the idea of unauthorized entry, asylum seekers are treated as criminals: parents who cross the border are jailed, and the children of these parents are treated as unaccompanied minors and placed with guardians.45 Family separation has increasingly become a deterrence strategy at the port of entry, limiting the capacity of families to access asylum and worsening the trauma of children and women who are fleeing violent circumstances.46 On February 20, 2018, a woman from Honduras arrived at the Texas border with her eighteen-month-old son; she told border agents they were fleeing from political violence and needed to find refuge together. Despite this request, the agents ordered her to place her son in the back seat of a government vehicle, separating the mother from her son.47 Chris Hall positions the policy of family separation biopolitically by framing it as an autoimmune process that relies on the perpetual maintenance of power structures, spatial control, and internal regulation.48 Under the zero-tolerance policy, family separation became a measure that obviously rejects any attempt to incorporate the contaminating “illegal other.”49 The case described earlier illustrates the use of family separation as a tactic of surveillance, exclusion, and separation aimed at controlling entrance, criminalizing unwanted populations, and punishing female asylum seekers who try to save their lives and those of their children due to insecurity in their home countries. The testimony of an immigration attorney also demonstrates that the detention experience and the family separation policy promote further psychological harm to those women fleeing from violence, exacerbating the preexisting trauma of female detainees:

I worked with probably around four hundred parents that were separated from their children. The effects of that separation and the effects of detention were so much more traumatic to the mothers than it was to the fathers. The fathers were upset, don’t get me wrong. The mothers were absolutely lost. . . . Unable to function, unable to think, unable to eat, unable to sleep, unable to talk sometimes, unable to stand up. I had to hold one woman—like, literally put my arms under her shoulders and hold her up.50

In January 2019, the Trump administration expanded its biopower through two border enforcement initiatives aimed at making it harder for people of colour fleeing their homes to seek asylum in the United States: metering and Migrant Protection Protocols (MPP). Through metering, border agents check the papers of asylum seekers before they set foot on US territory. As metering spread across the border, the number of asylum seekers in Mexican border cities increased from approximately six thousand in November 2018, when the Honduran migrant caravan arrived in Tijuana, to nineteen thousand in May 2019.51 Under the MPP, known informally as “Remain in Mexico,” the Trump administration returned primarily Central American asylum seekers to ill-prepared and dangerous border towns in Mexico; they then have to wait in these towns until their US asylum court proceedings conclude, which could take months and even years. This policy puts low-income women of colour and other asylum seekers in a more precarious situation. First, in these Mexican border cities, they face barriers to receiving due process on their asylum claims. Second, they encounter a severe shortage of shelter space, leaving many asylum seekers on the streets. Third, they are also at risk of kidnapping, sexual assault, and violence.52 As of June 24, 2019, the Mexican government reported that 15,079 people, mostly from Honduras, Guatemala, and El Salvador, returned to Ciudad Juárez, Mexicali, and Tijuana under the MPP program with instructions to appear months later in US immigration court across the border. This number includes at least 4,780 children with their parents and at least 13 pregnant women who may be especially vulnerable due to their medical condition, age, and gender.53 By overwhelming the Mexican government, both metering and the MPP program have deployed the omnipresence of the state through the biopolitics of asylum, which relies on an institutionalized rejection of applicants based on their intersecting ethnic-racial, gender, and class identities and reimagines its territory beyond its traditional boundaries to deter/exclude a population considered undesirable by the United States’ zero-tolerance policy.

Detention

Detention centres for asylum seekers are another expression of totalitarian biopolitics that goes hand in hand with border enforcement. Detention has been defined as “a practice of incarcerating noncitizens who are apprehended at ports of entry or within the nation’s interior.”54

Within the biopolitics of contingency, the detention of asylum seekers becomes the space of exception and the site of the reconfiguration of the human into the nonhuman. The biopolitics within the detention system erases the humanity of detainees,55 in particular low-income, ethnic, racialized, and gendered others. Asylum seekers exemplify Giorgio Agamben’s concept of the bare life of the homo sacer, since they only exist in legal and political domains by means of their exclusion; their human existence has no political or economic value.56 The exceptionalism of sovereign power ensures that the detained asylum seeker remains excluded from the rights afforded to citizens. Detention punishes border crossers, deterring them from pursuing the asylum process and displaying both sovereign power and disciplinary power.57 Detention, furthermore, ensures individuals will attend deportation hearings; this procedure has become a key source of the biopolitics of asylum led by the US government. Deportation is the last step and goal of the biopolitics of asylum. Currently, detainees are incarcerated in three types of facilities: federal detention centres managed by ICE, privately contracted prison facilities, and state/municipal jails.58 The population of detained immigrants has increased from approximately 5,000 in 1994, to over 34,000 in 2014,59 to over 41,000 in the first 100 days of the Trump administration.60 In 2018, 396,448 people were initially booked into an ICE detention facility.61

The fact that immigrant detention in Texas is a profitable business that relies on a bed quota affects women severely. The detention bed quota requires ICE to maintain thirty-four thousand beds occupied all the time.62 The Trump administration has considered doubling the number of beds to over eighty thousand through the private contracting of detention facilities, adding another facility in South Texas.63 The United States has 205 detention facilities.64 Of the twenty-four Texas detention centres,65 two have been dedicated as family detention centres and centres for unaccompanied minors: one in Karnes City (run by a private contractor, the GEO Group) and the other in Dilley (operated by for-profit corrections corporation CoreCivic). The facility in Dilley, Texas, alone took away $71.6 million in revenue, with women and children bringing in a larger profit, “likely because women and children do not require as many security mechanisms as men.”66 This form of understanding profit generation reinforces a patriarchal view of security within the detention system. As of August 2018, the South Texas Family Residential Centre in Dilley was holding 1,520 women and children ages one to seventeen, while the Karnes County Residential Centre was housing 630 fathers and their sons.67 During 2019, in the detention centre in Karnes, federal officials have released families with notices to appear in court and used the facility to house easier-to-deport single adults.68 This situation leaves Dilley as the only family detention centre in South Texas.

Due to the biopolitics of asylum, asylum seekers who present themselves at the Texas-Mexico border are placed in detention facilities while their attorneys gather all the evidence to establish a credible fear of persecution in their home country; these detentions frequently took place before the implementation of the Remain in Mexico policy. Under US law, asylum seekers who express fear of returning to their country of origin are interviewed to assess if they can pursue their asylum claims at immigration courts. The credible fear interview provides applicants with the opportunity to explain how they have been persecuted; however, asylum is not guaranteed. If the asylum claim is denied, applicants are subject to a final order of removal; they may remain in detention while the United States makes deportation arrangements. The process of relief from deportation takes months and even years if there are appeals.69

The gendered impacts of the biopolitics of asylum within the current detention system critically affect the possibility to create a strong credible fear statement. One attorney explained that one of the main problems he faces when trying to represent women is that they are unable to articulate their fear in the detention setting.70 The length of the interviews and the pressure to give appropriate answers may contribute to asylum seekers with symptoms of post-traumatic stress disorder providing inconsistent testimony due to memory loss.71 Women are also ashamed to describe everything that has happened to them in their home countries. Culturally, for Central American women, sensitive topics such as domestic violence and rape are generally difficult to discuss, especially with strangers in a foreign country.72 Since detention centres do not offer the minimum levels of privacy, many women prefer not to tell their stories in front of their children. The detention setting thus worsens the trauma already suffered by women and affects the articulation of a successful asylum claim.

Detention centres in Texas, as a tool of the biopolitics of asylum, are plagued with poor-quality medical care for pregnant women. This poor medical care is an intentional form of exclusion and state control over a specific population. Viewing pregnant migrant women as threats to the host nation-state contributes to their framing as risky and undesired bodies. The reproductive bodies of noncitizen women thus become a site of management and exclusion to prevent “anchor babies.”73 Although ICE discouraged the detention of pregnant women, the Women’s Refugee Commission reported a 35 percent increase in the detention of pregnant women during the first four months of the Trump administration.74 Following a December 2017 policy change, ICE began to detain pregnant women in Texas despite the well-documented harmful effects of detention on both pregnant women and fetal development.75 Several miscarriages have occurred in detention.76 A Salvadoran woman who requested asylum in El Paso was detained at the port of entry. Even though she was pregnant, she was transferred to a detention centre. After her last transfer, she was diagnosed with placenta previa, which creates serious health risks to the unborn child and mother.77

Detention as a component of the biopolitics of asylum creates more insecurity for women. Although some women have experienced domestic violence in their home country, they also face physical, verbal, and sexual abuse in the host country. Research conducted by Freedom for Immigrants demonstrates the prevalence of sexual abuse, assault, and harassment in US immigration detention facilities and the lack of adequate government investigation of these cases.78 The Department of Homeland Security–Office of the Inspector General (OIG) received 1,016 reports of sexual abuse filed by people in detention between May 2014 and July 2016; the OIG received on average more than one complaint of sexual abuse from people in detention per day during this time period. Freedom for Immigrants also found that the OIG investigated only 24 of those complaints, or 2.4 percent of the total.79 Immigration attorneys commented on cases of rape of female asylum seekers who crossed the border and ended up in detention facilities. Their clients were sexually assaulted in either US Border Patrol or ICE custody. One attorney explained that having the first point of contact with a male in a uniform who has a lot of power is not an ideal situation for women; these women have been insulted, have been called racially derogatory names, and have been told that they have no rights.80 Another attorney commented that one of her clients was sexually assaulted after she was locked in a broom closet that the officer knew was out of range of security cameras. Despite this abuse of power, he only lost his job and was given a six-month sentence.81 A shelter director pointed out that asylum seekers should not be jailed, but if they are going to be, only female guards should take care of female asylum seekers.82 Relying on the detention of female asylum seekers, biopower is exercised to sustain classed, racialized, and gendered systems of oppression.

The use of detention centres in the biopolitics of asylum is not a practice that originated with the Trump administration. Since 1896, immigration imprisonment has been declared constitutionally permissible, and individuals can be detained while the government decides whether they can remain in the United States.83 Detention emerged on both coasts: Ellis Island in New York and Angel Island in San Francisco Bay. Since then, Republicans and Democrats have relied on the use of detention centres to deter migrants and asylum seekers. In the 1980s, the Reagan administration ordered the Immigration and Naturalization Service (INS) to detain Cubans and Haitians who were fleeing totalitarian regimes and accommodate them at the Krome Avenue Detention Center in Miami; this facility remains operational today.84 South Texas also became the epicentre of the immigration detention system, imprisoning Central Americans fleeing massive human rights violations led by US-supported dictatorships in the region during the Cold War. The INS denied 97 percent of asylum petitions by Salvadorans and 99 percent by Guatemalans.85 In 2014, thousands of women with children and unaccompanied minors from Central America fled to the United States. As a result, in 2014, the Obama administration revived the family detention system to keep together detained immigrant women and children, sometimes for several months;86 the South Texas Family Residential Centre was built in Dilley, Texas, and became the largest family detention centre in the country. By the last months of the Obama administration, ICE held 40,000 people daily; this number rose under Trump, surpassing 42,000 daily in 2018.87 While the Obama administration detained families together, the Trump administration promoted a family separation policy as a means of population control through deterrence mechanisms. As of July 2018, families accounted for 9,258 of the US Border Patrol’s 31,303 arrests, or 29.5 percent.88 Data released by the federal government in 2018 shows that every day, 15,852 people are detained in Texas; this state has the largest number of people in US immigration detention.89 The US government thus regularizes the mobility of asylum seekers by deterring them through detention as another security dispositif of the biopolitics of asylum. Although, as a candidate President Biden offered to put an end to prolonged detention and the use of for-profit immigration detention centres, his administration has continued the detention policy, jailing thousands of asylum seekers in remote facilities.

Detention of asylum seekers is not limited to the US-Mexico border. Several scholars and advocates have questioned Canada’s benign and welcoming reputation regarding refugees.90 Like its neighbour, Canada’s restrictive measures and use of detention centres have also proved controversial. In 2012, Canada amended the Immigration and Refugee Protection Act, including the Protecting Canada’s Immigration System Act and the Balanced Refugee Reform Act. These changes consolidated the securitization of the Canadian Refugee System by the Conservative government of Stephen Harper (2006–15), resulting in violations of asylum seekers’ human rights.91 This “2012 refugee reform” applies to in-land asylum seekers and entails numerous restrictive measures such as increased immigration detention, reduced procedural guarantees, and expedited refugee claim hearings that leave no time for preparation of those claims.92 By criminalizing asylum seekers, this reform enabled the Canada Border Services Agency (CBSA) to detain an average of 7,215 individuals per year in the period from 2012 to 2017; each individual spent an average of 19.5 days in these detention centres.93 These prisons mark asylum seekers as an “undesirable” population that must be regulated.94

Denial of Asylum Claims

In what follows, the role of the immigration court is explained to demonstrate how the denial of asylum claims of low-income Central American women is another security dispositif displayed by the biopolitics of asylum to exclude and regulate this population, worsening the insecurity of female applicants by turning away survivors of gender-based violence.

Access to legal representation is crucial in winning asylum cases. Regrettably, data from the Transactional Records Access Clearinghouse reveal the percentage of asylum seekers who are unable to access legal counsel increased remarkably, from 13.6 percent in 2007 to 20.6 percent in 2017.95 Moreover, the Trump administration forced immigration court judges to impose punitive bonds on asylum seekers.96 Since these bonds are set too high to be paid, this measure compels asylum seekers with limited financial resources to self-deport.

The Department of Justice has prosecuted more people who come to the United States looking for protection, creating a backlog in immigration courts. Between October 2017 and April 2018, the US Department of Homeland Security referred approximately thirty thousand apprehended migrants for prosecution under title 8, section 1325 of the US Code. Due to the massive backlog in immigration judges’ dockets, there were 140,027 cases pending in Texas through June 2019.97 This situation prolongs the length of the detention of asylum seekers. The Department of Justice has implemented the use of videoconferences for hearings to address the backlog in immigration courts, but this does not address the main problems of the court system. An immigration judge finds that the entire system is problematic due to the way the current immigration court is set up. She claims that the court system is stationed in the Department of Justice, which is a law enforcement agency headed by a chief federal prosecutor.98 For this judge, this situation undermines the integrity of the court and uses it as a political messaging tool. To send a message consistent with the administration’s latest law enforcement policies, the judges are now faced with quotas and deadlines; their livelihood is put on the line if they do not complete a certain arbitrary number of cases in a specific period.99 Certainly, the politicization of the immigration courts aligns with the biopolitics of asylum. Quotas and deadlines reflect an increase in the denial of claims, controlling which population deserves to enter US territory.

Another important aspect of the biopolitics of asylum is the expedited removal of asylum seekers who arrive at a port of entry, thereby denying them the opportunity for a successful asylum claim. According to one attorney,

The overwhelming majority of people, even those claiming asylum . . . are turned away at the border. . . . Even though they have legitimate asylum claims, most of those people are put in what is called expedited removal, which means they don’t really have a chance to make a claim. These . . . people . . . sometimes have almost twenty-four hours to prepare an asylum case. They can never get relevant evidence from their country related to their particular situation . . . while people who are put into the full procedure get months if not years to prepare their case. Lawyers can ask for medical records, for police records from their home countries . . . can search information about that country, and . . . can make a coherent argument to the immigration officials. As an immigration lawyer, I recognize that it is almost impossible to be successful in an expedited removal, and for me that is a denial of a due process.100

Expedited removals, as a dispositive of the biopolitics of asylum, violate the nonrefoulement principle, permitting the rapid deportation of female asylum seekers who may have a credible fear of returning to their home countries due to insecurity conditions.

By denying legal representation for female applicants, the biopolitics of asylum keeps them vulnerable and guarantees deportation. Unlike criminal courts, the constitutional right to legal counsel is not guaranteed in immigration proceedings.101 Although most attorneys interviewed in this study have a private practice, they are also pro-bono lawyers who volunteer to provide this service and can only take a few cases. A director of a shelter for asylum seekers explains how the lack of legal representation contributes to the deportation of applicants who do not have a work permit and therefore cannot afford to pay for a lawyer:

It’s very difficult to win asylum without a lawyer. It is unrealistic that somebody arriving at our border can afford to hire a lawyer. You are just conceding them to deportation by not giving them legal representation. . . . Asylum seekers are not given any support from the government while they are in proceedings, and that makes them very vulnerable. . . . They cannot work legally; they must work in a kind of undocumented setting. It takes many months to get a work permit. . . . In general, the main rule is that you have to apply for asylum, turn in your application, which means that you have to find somebody that can help you, and you have to submit it. And then you wait 150 days, so that’s another five months, and then you can apply for [a] work permit, and that takes between four and six months. So really, it will take you at least a year for the average person to get a work permit.102

Denial rates of asylum claims are consistently high in Texas. With a 98.8 percent denial rate, El Paso has the second-highest denial rate in the country. Other immigration courts in Texas, such as in San Antonio, have immigration judges with very high denial rates (96.4 percent or more). In contrast, Harlingen, which is comparable to El Paso due to its location at the Mexico-Texas border, has a relatively low denial rate, between 47.5 percent and 64.5 percent.103 Asylum denial rates rose during the Trump administration. For fiscal year 2018, the overall approval rate was 26 percent as of February 2018.104 In June of that year, denials climbed due to decisions announced by former attorney general sessions that harshly limited the grounds on which immigration judges could grant asylum. Central American women and children fleeing gangs and domestic violence were no longer deemed asylum candidates.105 As a result of the biopolitics of asylum, female applicants have been deported to countries where physical and sexual violence are permitted, femicide rates are among the highest in the world, and impunity is not properly addressed.

Conclusion

Discussing the concept of biopower and observing how it has been deployed within the biopolitics of asylum to regularize women’s mobility adds to the analysis of biopolitics as a tool used to jeopardize the right of international protection of female asylum seekers. This right is constantly violated through several mechanisms of exclusion, separation, and surveillance employed by the US government to decide who can or cannot remain within US territory. In this chapter, these mechanisms have been called security dispositifs. As a result of the biopolitics of asylum under the Trump administration, these dispositifs have been carried out as deterrence practices, such as border enforcement, family separation, detention, and denial of women’s asylum claims at immigration courts. Examining female applicants as targets of the biopolitics of asylum in combination with intersectional feminism permits us to better comprehend the way the US government views them as an undesirable population. Furthermore, viewing these women as a risk to US society has justified the deployment of several security dispositifs to control the mobility of low-income female asylum applicants from Central America. The chapter examines how the security apparatus composed of border security agents and guards in detention centres worsened the security conditions of these women. The biopolitics of asylum ensures that female applicants are kept vulnerable owing to their intersecting identities based on class, gender, ethnicity, and race. In this vein, female applicants detained for long periods or who have been forced to remain in Mexico have been deported to countries where impunity and femicide rates are among the highest in the world.

The criminalization of female asylum seekers in Texas goes beyond a local consideration. This case study highlights that the story of the inhumane treatment of these asylum seekers at ports of entry and detention centres in the United States is not new and is not limited to its borders. This chapter examined the fact that the use of detention centres did not originate with the Trump administration and that Canada’s use of such centres has also proved controversial. Unfortunately, the case study presented in this chapter illustrates the success of biopower and how the implementation of the biopolitics of asylum has become an accepted security dispositif that will remain in future administrations.

Acknowledgements

This research was carried out with the help of the Internal Faculty Research Grant Program from St. Mary’s University, San Antonio.

Notes

Some of the empirical information included in this chapter served in the analysis presented in Claudia Donoso, “Securitisation of Female Asylum Seekers and Healthcare in Detention Centres in Texas,” International Journal of Migration and Border Studies 6, no. 3 (2020): 186–205.

1. 1. Permission to proceed with this study was granted in September 2018 by the ethics review board at St. Mary’s University (my home institution), which determined that the planned use of interview material satisfied federal regulations regarding the protection of human subjects, specifically 45 CFR 46.101(b)(2).

2. 2. Suzanne Gamboa, “Sexual, Gender Violence Driving Central American Youths to Flee Their Countries”; Anastasia Moloney, “Why ‘Terrorized’ Members of Central America’s LGBTQ Community Are Fleeing”; Victoria Sanford, “From Genocide to Feminicide: Impunity and Human Rights in Twenty-First Century Guatemala,” 104–22.

3. 3. Diana Russell, “Introduction: The Politics of Femicide,” 3.

4. 4. David Carey and M. Gabriela Torres. “Precursors to Femicide: Guatemalan Women in a Vortex of Violence,” 142–64, https://doi.org/10.1017/s0023879100011146; Sanford, “From Genocide to Feminicide.”

5. 5. Julia E. Fragoso and Cynthia Bejarano. “The Disarticulation of Justice: Precarious Life and Cross-Border Feminicides in the Paso Del Norte Region,” 43–70, https://doi.org/10.1057/9780230112919_3; Shae Garwood, “Working to Death: Gender, Labour, and Violence in Ciudad Juarez, Mexico,” 1–23; Lourdes Godínez Leal, “Combating Impunity and Femicide in Ciudad Juárez,” 31–33, https://doi.org/10.1080/10714839.2008.11725408.

6. 6. Amnesty International, Amnesty International 2017/18 Report. The State of the World’s Human Rights.

7. 7. USAID, Guatemala Gender Analysis Final Report.

8. 8. Ana Leticia Aguilar, “Femicidio . . . La pena Capital por ser Mujer.”

9. 9. Sanford, “From Genocide to Feminicide,” 113. According to the Guatemalan National Statistics Institute (2018), some 848 femicides were reported between 2014 and 2017.

10. 10. Marina Prieto-Carrón, Marilyn Thomson, and Mandy Macdonald, “No More Killings! Women Respond to Femicides in Central America,” 26.

11. 11. Organization of American States (OAS), IACHR Has Concluded Its Visit to Honduras and Presents Its Preliminary Observations.

12. 12. Organization of American States (OAS), Conclusions and Observations on the IACHR’s Working Visit to El Salvador.

13. 13. Madeline Buiano and Susan Ferriss, “Data Defies Trump’s Claims That Refugees and Asylees Burden Taxpayers.”

14. 14. Benjamin Muller, “Globalization, Security, Paradox: Towards a Refugee Biopolitics,” 52. See also Michel Foucault, The History of Sexuality, vol. 1, An Introduction, 135.

15. 15. Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–1978, 65.

16. 16. Foucault, History of Sexuality, 71–74.

17. 17. Foucault, Security, Territory, Population, 66.

18. 18. Foucault, Security, Territory, Population, 70–71; Foucault, History of Sexuality, 140.

19. 19. Michel Foucault, “Right of Death and Power over Life,” 262.

20. 20. Foucault, History of Sexuality, 139.

21. 21. Michel Foucault, “Society Must Be Defended,” 242, 246–47.

22. 22. Brad Evans, “Foucault’s Legacy: Security, War and Violence in the 21st Century,” 413.

23. 23. Ariadna Estévez, “The Biopolitics of Asylum Law in Texas: The Case of Mexicans Fleeing Drug Violence in Juárez”; Staf Callewaert, “Foucault’s Concept of Dispositif.”

24. 24. Callewaert. “Foucault’s Concept of Dispositif,” 30.

25. 25. Michael Dillon, “Governing Terror: The State of Emergency of Bio-political Emergence,” 10.

26. 26. Dillon, “Governing Terror,” 10–11.

27. 27. Michael Dillon and Luis Lobo-Guerrero, “Biopolitics of Security in the 21st Century,” 266.

28. 28. Dillon, “Governing Terror,” 8–9.

29. 29. Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.”

30. 30. Anna Carastathis, “The Concept of Intersectionality in Feminist Theory.” See also Hae Yeon Choo and Myra Marx Ferree, “Practicing Intersectionality in Sociological Research: A Critical Analysis of Inclusions, Interactions, and Institutions in the Study of Inequalities.”

31. 31. Kathy Davis, “Intersectionality as Buzzword: A Sociology of Science Perspective on What Makes a Feminist Theory Successful,” 68.

32. 32. US Citizenship and Immigration Services (USCIS), Refugees and Asylum; Dan Cadman, “Asylum in the United States: How a Finely Tuned System of Checks and Balances Has Been Effectively Dismantled.”

33. 33. US Citizenship and Immigration Services (USCIS), Obtaining Asylum in the United States.

34. 34. Ibid.

35. 35. Estévez, “Biopolitics of Asylum Law,” 64–65.

36. 36. Estévez, “Biopolitics of Asylum Law,” 66.

37. 37. US Citizenship and Immigration Services (USCIS), Public Charge Fact Sheet.

38. 38. Katie Benner and Caitlin Dickerson, “Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum,” New York Times, June 11, 2018, https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html.

39. 39. US Department of Homeland Security, “U.S. Citizenship and Immigration Services, Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-.”

40. 40. Alan Gomez, “Federal Judge Blocks Another Attempt by Trump to Limit Asylum,” USA Today, December 19, 2018, https://www.usatoday.com/story/news/world/2018/12/19/second-judge-blocks-attempt-trump-limit-asylum-migrant-caravan-immigration-border/2066608002/.

41. 41. Karen Musalo, “A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women’s Claims,” 46–63.

42. 42. US Customs and Border Protection, Southwest Border Migration FY 2019.

43. 43. Karolina Walters, “Asylum Seekers Are Being Systematically Turned Away at the U.S.-Mexico Border.”

44. 44. Hope Border Institute, Sealing the Border: The Criminalization of Asylum Seekers in the Trump Era; Aaron Montes, “Try Later: It’s Getting Tougher for Migrants to Claim Asylum at U.S. Ports of Entry.”

45. 45. Adam Isacson, “Jailing All Border Crossers and Separating Families Would Break U.S. Courts, Ports, and Prisons. (It’s Cruel, Too.)”

46. 46. Hope Border Institute, Sealing the Border.

47. 47. Caitlin Dickerson, “Hundreds of Immigrant Children Have Been Taken from Parents at U.S. Border,” New York Times, April 20, 2018, https://www.nytimes.com/2018/04/20/us/immigrant-children-separation-ice.html.

48. 48. Chris Hall, “(Auto)immunity, Racism, and Crisis: From the Biopolitical to the Allopolitical,” 83.

49. 49. Hall, “(Auto)immunity,” 86.

50. 50. Interview with immigration attorney PF, 2018.

51. 51. Savitri Arvey and Steph Leutert, “Thousands of Asylum-Seekers Left Waiting at the US-Mexico Border.”

52. 52. Human Rights Watch, “‘We Can’t Help You Here’: US Returns of Asylum Seekers to Mexico.”

53. 53. Human Rights Watch, “‘We Can’t Help You Here.’”

54. 54. David Hernández, “Pursuant to Deportation: Latinos and Immigrant Detention,” 203.

55. 55. Lana Zannettino, “From Auschwitz to Mandatory Detention: Biopolitics, Race, and Human Rights in the Australian Refugee Camp,” 1–26.

56. 56. Estévez, “Biopolitics of Asylum Law,” 62.

57. 57. Sara Riva, “Across the Border and into the Cold: Hieleras and the Punishment of Asylum-Seeking Central American Women in the United States,” 309–26.

58. 58. Hernández, “Pursuant to Deportation.”

59. 59. Detention Watch Network, Immigration Detention 101.

60. 60. US Department of Homeland Security, ICE ERO Immigration Arrests Climb Nearly 40%.

61. 61. US Immigration and Customs Enforcement (ICE), Fiscal Year 2018 ICE Enforcement and Removal Operations Report.

62. 62. Hope Border Institute, Sealing the Border.

63. 63. Madison Pauly, “The Private Prison Industry Is Licking Its Chops over Trump’s Deportation Plans.”

64. 64. Detention Watch Network, Immigration Detention 101.

65. 65. US Immigration and Customs Enforcement (ICE), Detention Facility Locator.

66. 66. Interview with Laura Litcher in Smith, “Here’s the Biggest Immigration Issue That Trump Isn’t Talking About.”

67. 67. Weissert, “Texas Lockup Is Epicenter of Family Immigration Detention.”

68. 68. Nick Miroff and Maria Sacchetti, “U.S. Weighs Plan to Phase Out Family Detention at Texas Facility, despite Migration Surge,” Washington Post, March 14, 2019, https://www.washingtonpost.com/immigration/us-weighs-plan-to-phase-out-family-detention-at-texas-facility-despite-migration-surge/2019/03/14/c240cf6a-467d-11e9-aaf8-4512a6fe3439_story.html?utm_term=.88f8eade39c1.

69. 69. Nina Rabin, “Unseen Prisoners: Women in Immigration Detention Facilities in Arizona,” 699.

70. 70. Interview with attorney BB, 2018.

71. 71. Adrianne Aron, “Applications of Psychology to Assessment of Refugees Seeking Political Asylum,” 85–86.

72. 72. Interview with shelter director in Laredo, 2018.

73. 73. The term anchor baby refers to a child born to a noncitizen mother in a country; this child has birthright citizenship. According to the Fourteenth Amendment to the US Constitution and the Immigration and Nationality Act (INA), US citizenship is granted automatically to any person born within US territory.

74. 74. Women’s Refugee Commission, Joint Complaint on ICE Detention and Treatment of Pregnant Women.

75. 75. Human Rights First, Ailing Justice: Texas. Soaring Immigration Detention, Shrinking Due Process, June 14, 2018, https://www.humanrightsfirst.org/resource/ailing-justice-texas-soaring-immigration-detention-shrinking-due-process.

76. 76. Interview with representative of Detention Watch Network, April 2019.

77. 77. Hope Border Institute, Sealing the Border.

78. 78. Freedom for Immigrants, Widespread Sexual Assault, 2018, https://www.freedomforimmigrants.org/sexual-assault.

79. 79. Freedom for Immigrants, Widespread Sexual Assault.

80. 80. Interview with attorney SD, 2018.

81. 81. Interview with attorney PF, 2018.

82. 82. Interview with director of shelter NO, 2018.

83. 83. César Cuauhtémoc García Hernández, Migrating to Prison: America’s Obsession with Locking Up Immigrants.

84. 84. García Hernández, Migrating to Prison.

85. 85. García Hernández, Migrating to Prison.

86. 86. Laura Smith, “Here’s the Biggest Immigration Issue That Trump Isn’t Talking About.”

87. 87. García Hernández, Migrating to Prison.

88. 88. Will Weissert, “Texas Lockup.”

89. 89. Freedom for Immigrants, Detention by the Numbers, 2018, https://www.freedomforimmigrants.org/detention-statistics.

90. 90. George Melnyk and Christina Parker, eds., Finding Refuge in Canada: Narratives of Dislocation; Petra Molnar and Stephanie J. Silverman, “Canada Needs to Get Out of the Immigration Detention Business.”

91. 91. Idil Atak et al., “The Securitisation of Canada’s Refugee System: Reviewing the Unintended Consequences of the 2012 Reform,” 1–24.

92. 92. Atak et al., “Securitisation.”

93. 93. Molnar and Silverman, “Canada Needs to Get Out.”

94. 94. Delphine Nakache, “Détention des demandeurs d’asile au Canada: Des logiques pénales et administratives convergentes.”

95. 95. TRAC Immigration, Asylum Representation Rates Have Fallen amid Rising Denial Rates.

96. 96. Hope Border Institute, Sealing the Border.

97. 97. TRAC Immigration, Immigration Court Backlog Tool Pending Cases and Length of Wait by Nationality, State, Court, and Hearing Location, 2019, https://trac.syr.edu/phptools/immigration/court_backlog/.

98. 98. Interview with judge KK, March 2019.

99. 99. Interview with judge KK.

100. 100. Interview with attorney MR, 2018.

101. 101. Ingrid Eagly and Steven Shafer, “Access to Counsel in Immigration Court.”

102. 102. Interview with director of shelter NO, December 2018.

103. 103. TRAC Immigration, Asylum Representation Rates.

104. 104. US Department of Homeland Security, Annual Report 2018 Citizenship and Immigration Services Ombudsman.

105. 105. TRAC Immigration, Asylum Decisions and Denials Jump in 2018, https://trac.syr.edu/immigration/reports/539/.

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