U.S. Asylum Law is a Biopolitical Crisis (Review)

In his new book, John Washington chronicles the tragic reality of asylum in the United States. 

June 5, 2020

Cover of the Dispossessed (Courtesy of Verso)

In Ancient Roman law, homo sacer is someone who has been banned from society. If murdered, society will not regard their killer as a murderer. They are rendered less than human by the state—their bodies fragile and disposable. In 1995, the philosopher Giorgio Agamben applied this concept to Nazi Germany to try to understand how humans were legally allowed to be exterminated by the truckload. What were the juridical mechanisms that allowed such an unimaginable atrocity to occur?    

In his new book The Dispossessed: A Story of Asylum at the US-Mexican Border and Beyond, John Washington poses a similar question about U.S. immigration law: How is it that the U.S. government—day after day and year after year, with ever-increasing cruelty and depravity—is allowed to treat migrants, refugees, and asylees as something fundamentally less than human?

Asylum, a moral and political concept that Washington carefully traces back to ancient times, hinges on the fundamental human obligation of sheltering the Other and welcoming them with dignity, as a fellow human. So, what happened?

Through his artful weaving of one El Salvadoran man’s heart-wrenching story of multiple migration attempts with a sweeping history of asylum, Washington’s answer emerges as brutally clear: U.S. asylum law has next to nothing to do with granting asylum to those who need it and absolutely everything to do with furthering the United States’ economic and political goals. The United States is desperately attempting to further its empire, one bare, disposable migrant body at a time.  

The Western Canon

You shall also love the stranger, for you were strangers in the land of Egypt - Deuteronomy 10:19

Arnovis Guidos Portillo, a Salvadoran man in his mid-twenties, first left his partner and 4-year-old daughter to flee north to the United States in the summer of 2016. He needed to flee because Barrio 18, one of the local gangs controlling his neighborhood, was out to kill him. The other gang controlling his neighborhood, Maras Salvatrucha (MS or MS-13), was pressuring him to join them and would probably have killed him if he continued to refuse. He needed to escape his home in Corral de Mulas not only to protect his own life, but also his family and especially his young daughter, Meybelín.

For the Ancient Greeks, asylum meant the need to establish sacred safe zones from pillaging and piracy. With the tale of Sodom and Gomorrah and the Exodus from Egypt, the obligation to provide hospitality to a neighbor in need was written into Hebraic law. In Aeschylus’s The Suppliants, King Pelasgus offers the fifty Danaus daughters fleeing sexual violence not only asylum but free public housing.

The Islamic calendar begins with the act of hijrah: the migration of Muhammad, fleeing to find refuge from a death threat. Washington, echoing the work of refuge and sanctuary scholars such as Christine Pohl and Linda Rabben, makes a case: Asylum is an ancient and primordial institution, fundamental to the human species.

Washington does not gloss over the darker, more complicated aspects of asylum. As mankind entered modernity, the fear fundamental to asylum came into focus: the fear that causes an asylee to seek refuge in the first place, as well as the fear a host experiences in welcoming an asylee under their roof.

This latter fear was first documented in the 16th century, when Hobbes advised against taking in strangers because “there was greater honesty than is, at present, to be found among the prevailing perfidy of mankind.”

Martin Luther also echoed this fear, recommending that asylees “get references for strangers from persons who were trusted,” his words a precursor to the 21st century asylum sponsorship letter.

For nearly 500 years, political philosophers have passively or actively referred to a belief in “the good old days:” a daydream of when honesty was so pure and inherent to humanity that a wider approach to asylum was safe. Those days are over, they say, and it would be naive to behave otherwise. Hobbes saw this fear of the Other as a critical and necessary feature of any nation-state. John Washington, as well as other scholars on empire such as Greg Grandin, see this fear as Freudian: We put up walls as fortification against the anxiety that comes from within. Meanwhile, while we spend more and more money constructing barriers, the hunger, climate disasters, and drug wars perpetuated by global capitalism in an ever-globalizing world push more and more people to try to climb these walls anyway.

Despite this increasing push and pull between the state—to protect Freudian ideas of self-determination and sovereignty—and the outsider—to ensure physical and economic personal security in an ever-globalizing world—the basic principle remains: “The core of asylum is, and always has been, to protect.”

Arnovis is a perfect example of someone who clearly needed protection. Barrio 18 and MS-13 both had hits out on his life, and there is no shortage of investigations and reports to confirm that deporting someone running from a gang back to the Northern Triangle is, in essence, a death sentence. Yet, when Arnovis sought help in Hidalgo, Texas in the early summer of 2018, he and his then 6-year-old daughter were treated like criminals, separated from each other indefinitely, shuffled around detention centers for a few months, and then eventually deported back to El Salvador. Arnovis was never even asked if he was seeking asylum by any of the various U.S. officials he encountered over those dark weeks, breaking both federal and international law.

As Washington wields the Western Canon—that great white blinding tradition so often held up as a mirror of humanity itself—he also forces us to hold it against the United States. And with each Didion or Sontag quote, with each Kant or Derrida reference, with each United Nations citation, Washington makes it clear: The United States does not follow the great human tradition of offering asylum.

A Biopolitical Weapon by Design

“In a violent and warming world, the rich can afford to protect themselves — with gated neighborhoods, getaway homes, and walled nations — and the poor are left with few options but climbing over the barriers and sometimes cramming their life stories into a sympathetic narrative.” - John Washington

In 2018, Jeff Sessions tried to argue that individuals fleeing from gang violence should not qualify for asylum because it is an example of “private violence”—as if gang violence is not a societal issue, and as if refusing to join the gang that rules your neighborhood is not a political act. If you are fleeing from domestic violence, expect to be denied for similar reasons, and if you are fleeing from LGBTQ persecution, expect a hard battle due to layers of marginalization towards LGBTQ applicants in the asylum process. Forget about it if you are fleeing because of climate change or from any kind of economic violence: These are never considered grounds for asylum in the United States, despite the ever-more obvious connections between global transnational corporatism, capitalism-induced climate change, and increasing refugee claims.

Though asylum has a rich global history rooted in notions of sanctuary and hospitality, Washington points out that the modern legal and political concept of asylum in Europe and the United States was formed during the Cold War. Especially in the United States, “refugee” became synonymous with “someone fleeing communism.” Up until 1980, you could not be granted asylum unless you were fleeing a communist country. In a post-9/11 reality, the specter of communism has been replaced by the specter of terrorism, but the mechanism remains the same: Accepting refugees and asylum seekers in the United States continues to be a tool to bleed out political enemies and prop up political allies. 

In the 1980s, the United States took in many Cubans and Nicaraguans—coming from communist regimes openly opposed by the United States—but turned away almost all Haitians, Guatemalans, and Salvadorans, who were coming from authoritarian regimes backed by the United States. Washington argues that a similar case can be made about our incredibly low acceptance of Mexican asylum seekers today, despite the annual murder rate in Mexico being higher than most countries at war: “It would be a diplomatic sucker punch for the United States to openly acknowledge that Mexico either persecutes or cannot protect its own citizens, but it has no problem making that same assessment about Eritrea.” The decision of who gets asylum is really a decision of how to maintain empire. 

In her 2010 book Gore Capitalism, Sayak Valencia, a trans feminist activist and intellectual from Tijuana, brought biopolitical theory into the 21st century. In the age of heightened globalization, transnational capitalism, and border militarization, Valencia argues that we are living in a new “necropolitical” reality: Death, and not life, is the driving force of both capital and empire. In necropolitics, violence is not simply a by-product of global capitalism but rather a key political actor in sustaining the current global system. And Tijuana, which Valencia refers to as la última esquina de  Latonoamérica (the last corner of Latin America), is ground zero for necropolitics: a violent borderlands town where the “rubbings” between neocolonialism, capitalism, globalization, and neoliberalism lead to one of the highest murder rates in the world. Agemben’s theory of the state disposing of bodies in “states of exception” does not apply in Tijuana because every day is ruled by a network of corruption and violence. It is no longer the exception—it is the norm.

An analysis of biopower that assumes functioning political, juridical systems, and “states of exception” loses meaning for Valencia: Tijuana’s violence is about a lot more than just the formal Mexican state. Rather, the formal state is just one stakeholder in a transnational web of violence —and, oftentimes, an impotent one. Valencia’s “parallel state” in Tijuana—comprised of national and international criminals (which she calls endriago subjects) and characterized by the systems of violence that are heightened in the space of a borderland city—sounds an awful lot like the violent parallel state that Arnovis is fleeing in Corral de Mulas: Barrio 18 and MS-13.

This is a parallel state that the U.S. government conveniently deems a “private” matter not warranting asylum, despite the clear connections between U.S. imperialism and the forming of these very gangs, which were exported from Los Angeles to the Northern Triangle in the 1990s. Meanwhile, migrants are encouraged via U.S. policies to die riding the Beast, or die locked in a coyote’s truck somewhere, or die being kidnapped and executed by a Mexican cartel, or die in the Sonoran desert wilderness, or die crossing the Rio Grande, or die in ICE detention. Through U.S. immigration policy, death is encouraged: a gory biopolitical crisis.  

A Good Story 

In March 2019, I was in the Migraciones Office in Lima, Peru. I was translating an interview between a PBS NewsHour correspondent and Peru’s Superintendent of Migrations, Roxana del Águila Tuesta. We wanted to know: How was the sudden influx of more than a million Venezuelan migrants affecting Peru?

Águila described how in May 2018, migrations offices across Peru began working 24 hours per day in an attempt to process 5,000 Venezuelan migrants daily. This policy was still in place during our interview, over 10 months later. Absolutely no migrant was to be turned away at the border, and new pop-up migration offices were opened along the border with Ecuador to ensure this. Upon their arrival to a processing center, all migrants got a health check and, if necessary, vaccines. And, beginning in early 2017, Peru even created a special visa, the Temporary Permission of Permanence (PTP), which allowed migrants to legally work in the country for a full year without asylum status. The visa was created so that Venezuelans could stay and make an income despite the ever-growing backlog of asylum claims. The window to apply for the PTP was set to expire in October 2018, but Peru extended it to July 2019 in an attempt to meet the continuous flow of migrants. The only other option was turning Venezuelans away, which, Águila said firmly, was not an option.

“And we never, under any circumstances, separate children from their parents,” Águila added as she looked into the camera. The PBS correspondent and I exchanged glances.   

Águila was determined to spin a good story: the story of how Peru opened wide its doors when everyone else locked theirs— a story that sets Peru’s policies as far apart from the United States as possible. And, despite Peru being far from a beacon of humanitarianism, it was largely true: Peru was providing a clear example of what asylum can and should look like in the 21st century.

And perhaps most importantly, unlike the entrenched history of U.S. interventionism and neocolonialism in Central America, there is no direct or even indirect link between 20th century Peruvian foreign policy and the current Venezuelan crisis—another explanation for why Peru’s hospitality seems almost unimaginable from a U.S. context. Neocolonialism and empire negate humanitarianism and hospitality.

In The Dispossessed, Washington is also fundamentally concerned with telling a good story, and he does it well. His retelling of Arnovis’s two years of hell—as he cycles and recycles through various stages of flight, illegally crossing through Mexico, illegally crossing into the United States, detention, interrogation, and deportation—is rich and beautiful and tragic. His ability to connect this story with a sweeping history of asylum is powerful, and the need to tell this story is more urgent now than ever.

Washington is also excruciatingly aware of his own ability to tell this story. The ability to remember details—the “elegant line, like a chevron” shaved into his driver’s buzzcut as he traced Arnovis’s journey across Mexico; Meybelín’s Peppa Pig tank top as she told Washington what it was like to be separated from her father for a month and detained at only 6 years old—remembering these details is what can make or break an asylum case. It is the razor edge, the border line, between life and death for many. 

“These are the details that convince a listener, a reader, or a judge. And I thought of Arnovis, on a similar bus, similarly nervous, and wondered how long your nerves can sustain that level of alertness, how long before you start to relax, or acclimatize, or fray.”

Washington encourages us to move beyond simply being appalled by the U.S. immigration system. Rather, he wants us to understand and organize to abolish the U.S. political and juridical systems that allow the perpetual deportation of legitimate asylum applicants. Arnovis’s story is just one of countless that prove the United States is breaking international law.

After all, “There is no better argument for the need for asylum than, when you are not granted it, you are killed.”  

Jacquelyn Kovarik is a freelance journalist and educator. A graduate of NYU’s Center on Latin American and Caribbean Studies and the Arthur L. Carter Journalism Institute, she writes about social and political movements in Peru and Bolivia and Latinx issues in the United States. Follow her @jm_kovarik.

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