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In the most recent Law & Society Review

Reconfiguring the Deserving Refugee: Cultural Categories of Worth and the Making of US Asylum Policy

Talia Shiff
Lecturer on Sociology
Postdoctoral Fellow, Weatherhead Scholars Program
Harvard University

Talia Shiff

Contemporary US asylum policy is characterized by two seemingly contradictory developments: on the one hand, increasing restrictions placed on the admission of immigrants and asylum seekers, and on the other hand a growing acceptance of a new set of asylum claims involving previously unrecognized forms of gender-related harms. In Reconfiguring the Deserving Refugee: Cultural Categories of Worth and the Making of US Asylum Policy, Talia Shiff sets  to explain this puzzle: how is it that during a period of growing hostility towards asylum seekers at large, there is an increasingly inclusive approach towards non-conventional gender-based claims such as rape, female genital cutting and domestic violence that do not involve standard forms of government-sponsored persecution of well-recognized political, religious and ethnic minorities?
 Analysis of interviews with high level asylum officials, asylum adjudicators and lawyers, in addition to case law and agency policy documents, reveals that the development of gender asylum is reflective of a radical reconfiguration in the meaning of worthiness for asylum in the United States after the end of the Cold War: if for most of the 20th century worthiness for asylum was determined in accordance to a person’s motivation to flee (political/religious versus economic), after the end of the Cold War worthiness for asylum came to be increasingly defined in accordance to whether the trait on account of which a person is persecuted is immutable, meaning that the trait cannot be changed and that the source of persecution cannot be avoided. The article tells the story of this change in definitions of worthiness for asylum. This story begins at a moment of social transformation – when the cold war programmatic framework guiding US refugee policy collapses, and there is no clear alternative framework with which to replace it. If during the Cold War, residence in a communist country served as both the legal and conceptual marker for distinguishing between refugees and other groups of immigrants, after the Cold War, lawmakers were confronted with the challenge of casting content into an ambiguous refugee definition in lack of a shared policy framework. Lawmakers drew on moral scripts found in their broader organizational environment centered on the concept of immutability - the notion that to be worthy of protection you must be targeted on account of traits beyond your control to change - and used these as primary criteria for demarcating the scope of asylum status. Gender-based violence came to define what immutability in the context of asylum means. Victims of gender-based violence symbolized the deserving asylee persecuted on account of an immutable trait (gender), while persons harmed on account of societal factors such as former profession, socio-economic status or place of residence, were framed as unworthy of asylum because they are targeted for mutable traits not fundamental to their individual identity. As asylum takes up an increasingly central place in current global and domestic affairs, questions concerning how classifications between genuine refugees and “illegal” immigrants are made, and how the boundaries of the institution are regulated, are of utmost importance.

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