Maya Guatemalans Seeking Asylum: Race and Gender in a Continuum of State Control

Abstract

Central Americans historically have been denied U.S. asylum. From the moment they arrive, they become entangled in a punitive system that criminalizes them through an intricate network of social control sustained by state and private companies. Based on ethnographic fieldwork conducted in rural Kansas between 2016 and 2020 and interviews with Maya Guatemalan women and men asylum seekers, we examine the race and gender power dynamics reproduced through the asylum process that mimics the penal system. We examine three encounters with the asylum system: (1) the credible fear interview, (2) cash bonds, and (3) alternatives to detention programs. The asylum process (re)produces a continuum of state control that reflects the punishing tactics of the carceral state, leaving women and men embedded in the system and perpetually indebted. Maya Guatemalan women’s and men’s experiences navigating the asylum process underscore the intersecting mechanisms of race and gender at the center of the carceral state within the asylum system. Given the expansion of the punitive U.S. asylum bureaucracy, our findings will be relevant beyond our case study.

INTRODUCTION

Central Americans have fled their countries for over four decades due to a combination of historical dislocations, neoliberal policies, profound inequalities, and U.S. military interventions that have shrunk their countries’ welfare state, diminished their job opportunities, increased corruption, and legitimated state and everyday violence. Upon arrival in the United States to apply for protection, they enter the asylum bureaucracy and become entangled in a continuum of state control and punitive logics that reproduce ideologies, practices, and technologies of the carceral state. As they do so, their need for protection is disregarded. Hondurans, Guatemalans, and Salvadorans have been among the top five nationalities seeking asylum in the United States, yet have faced the highest denial rates at 87.3 percent for Hondurans, 85.8 percent for Guatemalans, and 85.0 for Salvadorans in 2020 (TRAC Immigration 2020). In contrast, the denial rate for China during the same period was 23.3 percent, for India 38.4 percent, and Cameroon 38.4 percent (TRAC Immigration 2020).

Relying on the experiences of Indigenous Maya Guatemalan asylum seekers¹ we ask, what mechanisms of state control have made the asylum process a punitive experience for these asylum seekers instead of the humanitarian treatment they seek? How do gender and racial logics shape Maya Guatemalans’ encounters with the asylum process? We argue that the asylum process (re)produces a continuum of state control anchored in their embeddedness and indebtedness in the asylum system, where racialization intersects with gender ideologies and power hierarchies to shape poor asylum seekers’ experiences.² This continuum of state control has no continuous sequencing nor extreme end points. Rather, it reflects a scale of varying intensities as intersections are activated at different points of the process. It involves several liminal periods of waiting (including waiting at the border under U.S. policies such as Title 42 or “third country agreements” or waiting for an immigration hearing or for a decision on a case); the vetting systems that give ample discretion to state actors over would-be asylum seekers’ livelihoods; incarceration in detention centers, jails, and prisons; the surveillance post-detention through Alternative to Detention Programs; and the financial costs of bonds and parole. This continuum of state control is embedded in carceral logics of surveillance, punishment, and incarceration and is intersectionally gendered and racialized. These processes leave many asylum seekers embedded and indebted to the carceral state. The carceral logics of the asylum system contribute to racializing unwanted asylum seekers and thus underscores the race-making role of the criminal justice system (see Hernández 2017). While we focus on Maya Guatemalans’ experiences in a specific context and configuration of power inequalities centering on Indigeneity and gender, our findings on the expansive reach of punitive state control ingrained in the asylum process are relevant to the scholarship on carcerality more broadly.

Immigration scholars have underscored the criminalization of immigration and its ties to the carceral state with a focus on the merging of criminal and immigration law and enforcement practices known as “crimmigration³” (Bosworth and Kaufman 2011; Menjívar, Gómez Cervantes, and Alvord 2018; Stumpf 2006). As well, scholars have highlighted the racialization of illegality, where perceptions of Latin American origins and skin color are tied to undocumented status, making Latinos prone to surveillance and deportation (Brown, Jones, and Becker 2018; Gómez Cervantes 2021; Menjívar 2021). Less is known about the intersections of race and gender that envelop the criminalization of the asylum process, but the criminalization of immigration has become so robust that it has enfolded humanitarian protection as well. Thus, our findings regarding the asylum system also reveal that punitive control shapes the structure and organization of institutional spaces not readily expected to fall under criminalization logics.

Through the experiences of Maya Guatemalan asylum seekers, we focus on the gendered and racialized mechanisms and consequences of the continuum of state control that has criminalized the asylum process through three key encounters: (1) the credible fear interview, (2) cash bonds, and (3) Alternatives to Detention Programs (ATDs). This approach allows us to reveal nuanced gender and race intersections across the asylum process as different intersections are activated at each encounter. As these asylum seekers go through the asylum process, their lives remain enveloped in a continuum of state control and penal punishment predicated on racialized and gendered tropes of illegality, reproducing layers of state violence that harm them (and their families) in the short and long term, hindering their socioeconomic integration.

We proceed first with a discussion of the criminalization of the asylum process that exposes the racialized and gendered mechanisms through the historical exclusion of Central American asylum seekers. Next, we present the theoretical underpinnings of the continuum of state control within asylum processes and its ties to carceral logics. We follow with the methods and data before turning to our findings on the racialized and gendered mechanisms underlying the criminalization of the asylum process. We conclude with a discussion of the continuum of punitive state control in the asylum system.

THE CRIMINALIZATION OF ASYLUM AND CENTRAL AMERICANS

Scholarship examining the criminalization of immigration points to the carceral logics within immigration law and its enforcement. Research has highlighted the criminalization of immigrants’ everyday behaviors, which are not considered criminal for non-migrants (Abrego et al. 2017; Dowling and Inda 2013; Martinez-Aranda 2022; Provine et al. 2016). A range of behaviors that are considered misdemeanors such as petty offenses are labeled as “aggravated felonies” for immigrants who are then charged with criminal sentencing and eventually deportation (Provine et al. 2016). In parallel, policing and surveillance in immigrant communities has intensified through various legal tools such as the 287(g) agreements and immigration detainers that allow local law enforcement to collaborate with federal agencies to apprehend, detain, and initiate deportation procedures for suspected undocumented migrants (Arriaga 2017; Breisblatt 2017; Kubrin 2014; Stumpf and Manning 2023). Mandatory detention, inscribed in the Immigration and Naturalization Act of 1988 but whose scope has extended dramatically since 1996, requires the government to take into custody individuals (including lawful permanent residents) convicted of certain offenses that have been (re)classified as “aggravated felony” (Menjívar 2023), a category with no connection to the category with the same name in criminal law. The continued expansion of offenses classified as “aggravated felonies” over time (Menjívar 2023), coupled with intensified enforcement, has contributed to the increase of immigrant detention into jails, prisons, and detention facilities as well as increases in deportation (Stumpf and Manning 2023).

Existing scholarship also has pointed to the racialization mechanisms embedded in uneven enforcement practices that target Latino immigrants at disproportionate rates in contrast to other immigrant groups (Armenta 2017; Arriaga 2016). Similarly, gender plays a significant role in immigrant criminalization practices. The narrow paths for women to immigrate legally or regularize their status leave them undocumented, and the harmful stereotypes that depict them as potential drains on the welfare state make them targets of immigration control (Hartry 2012). Paralleling the criminalization of immigration law, the asylum system blends administrative, civil, and criminal laws to reproduce the punitive practices, surveillance, and the overreach of the carceral state (Beckett and Murakawa 2012). Such criminalizing practices are deeply entwined with racialized (Adler 2006) and gendered perceptions of Central American immigrants (Abrego and Villalpando 2021; Llewellyn 2020).

During the 1980s, Salvadorans and Guatemalans began migrating en masse, fleeing civil wars and state-sponsored violence widely supported by U.S. military and financial intervention. As a result, Salvadorans and Guatemalans were denied asylum status—by government directive—and instead were classified as “economic” or “irregular” (undocumented) immigrants even though de facto they fit a refugee profile (Menjívar 2000). Denial rates of Guatemalan and Salvadoran asylum applications ranged between 97 and 99 percent during this period (Coutin 2011). In a patchwork solution, El Salvador was the first country designated for Temporary Protected Status (TPS), created in 1990 and included in the Immigration and Nationality Act (Menjívar, Agadjanian, and Oh 2022). In response to the discriminatory treatment of Central American asylum seekers, over 80 religious organizations sued the Office of Immigration and Naturalization Services (INS) in American Baptist Churches v. Thornburgh, 1991, known as the ABC lawsuit, which led to the creation of NACARA (Nicaraguan and Central American Relief Act) of 1997. However, the ABC lawsuit settlement did not challenge discriminatory practices in asylum law; instead, the designation of TPS reinforced notions that Central Americans do not fit into asylum categories as they continue to be (largely) denied asylum and left in the limbo of TPS (Gorman 2017; Hartsell and Blue 2023). Temporary statuses reproduce insecurity as immigrants are pushed into an uncertain and lengthy legal limbo with blocked paths to citizenship (Menjívar 2006).

Post-1990s, narratives of border insecurity activated ever more punitive immigration policies that contributed to the criminalization of asylum. The introduction of expedited removal and mandatory detention of immigrants apprehended at the border automatically blocks asylum seekers from judicial review; they are left at the discretion of border patrol agents and immigration officers. Thus, would-be asylum seekers can be deported without a hearing and detained indefinitely unless an officer deems them eligible for parole. Would-be asylum seekers, including women and youth, are detained in prison conditions (Gómez Cervantes, Menjívar, and Staples 2017), reinforcing their association with crime. The Real ID Act of 2005 added evidentiary requirements to asylum regulations to make the process more stringent (Wasem 2020). Research has detailed how such asylum standards are used strategically to deny asylum to specific groups, like poor Central American and Indigenous immigrants (Gorman 2019; Hartsell and Blue 2023; Menjívar and Abrego 2012; Sherman-Stokes 2018; Speed 2019).

Media depictions and public discourse, amplified during the Trump presidency, routinely frame Central American men as violent gang members (Abrego and Villalpando 2021; Adler 2006) and women as manipulative cheaters of the asylum system and thus presumed suspects from the start (Llewellyn 2020; Riva 2017; Speed 2019). The Trump administration enacted hundreds of policies that further targeted and prevented Central Americans from seeking asylum (Guttentag 2021), including Attorney General Jeff Sessions’ 2018 rule to eliminate domestic and gang violence as grounds for asylum, and Title 42 regulation which effectively closed the U.S.-Mexico border to asylum applications amid the COVID-19 pandemic (still in place), under racialized notions of immigrants raising infection rates (Leutert and Yates 2023; Obinna 2023).

Furthermore, the intersection of gender and racialization shapes perceptions of “deserving” versus “undeserving” among women seeking asylum based on gender-based violence claims (Nayak 2015). “Worthy victim” frames portray countries where women seek asylum as “civilized” and those they flee as “backward.” Women who do not fit worthy victim frames are simply “bad immigrants” (e.g., undocumented) (Nayak 2015). Emily Ryo (2019) finds that after controlling for a variety of characteristics and criminal conviction measures, Central American immigrants have significantly higher odds of being perceived as dangerous in immigration court, where their stereotypes as criminals and gang members are salient. Unsurprisingly, the arrival of Central American women, youth, and children seeking asylum at the U.S. southern border has been met with alarm and depicted as a “crisis” (Menjívar, Ruiz, and Ness 2019).

Examined through a racialization of illegality lens (Menjívar 2021) exposes the construction of Central American asylum seekers as undocumented and potential criminals (Ryo 2019) and thus a problem to be addressed (Blue and Hartsell 2023). Upon arrival to the United States, they face multilayered structural barriers to their integration, given extant criminalizing and exclusionary policies (Abrego 2014; Menjívar 2000). Indigenous⁴ Central Americans encounter additional barriers, such as internal racism within the Latino community (Menjívar 2021) while more broadly they are homogenized and racialized as “Mexican” or “illegal” (Gómez Cervantes 2021; Yarbrough 2010). Indigenous immigrants, thus, must navigate multilayered exclusionary systems that hyper-racialize them both within the immigrant and non-immigrant communities, through the asylum process, and in their home countries (Blackwell, Boj Lopez, and Urrieta 2017; Speed 2019; Urrieta and Calderón 2019).

A CONTINUUM OF STATE CONTROL

Asylum seekers navigate a gendered and racialized system tied to the carceral state, which Andrea J. Ritchie (2017) describes as the expansion of carceral control and punishment through laws, public policy, institutional practices, and ideologies that affect certain racialized groups in society, well beyond the prison walls. Katherine Beckett and Naomi Murakawa (2012) refer to the penal system’s encroachment of less visible spaces and institutions as “the shadow carceral state,” as institutions not typically considered penal, “have acquired the capacity to impose punitive sanctions—including detention—even in the absence of a criminal conviction” (pg. 222). We examine the asylum process as an active branch of the shadow carceral state. Using Malcolm M. Feeley’s (1979) classic theorizing of punishment, we argue that the asylum process and its bureaucratic entanglements, interactions with state actors such as judges and immigration officers, and the liminal periods awaiting outcomes (e.g., waiting before attempting to claim asylum and awaiting a hearing and a final decision) constitutes a continuum of state control that constraints asylum seekers’ freedom and inflicts pain in the short and long term. This continuum reflects the carceral logics that permeate the asylum process and its racialized and gendered dynamics with varying degrees of surveillance and punishing capabilities, beyond detention and deportation and into immigrants’ communities, families, and everyday lives. These practices entrap the immigrants who become embedded in the dragnet of the criminalized asylum system and indebted through multiple financial costs, exacerbating poverty, and conditions for exploitation. The parallels with the criminal justice system (see Harris 2016), racialization processes, and the carceral state are clear.

As part of the state’s surveillance apparatus, the asylum process operates on the same principles and deploys similar tactics as other “people processing” and carceral institutions (Foucault 1977; Goffman 1961). Such tactics of control and surveillance embed “the power to punish” (Foucault 1977) into asylum seekers’ everyday lives, “deinstitutionalizing” the disciplinary procedures and mechanisms of the prison. “Once individuals become enmeshed in these organizational and technological webs, their bodies, behaviors, movements, and actions can be more easily monitored and controlled” (Staples and Decker 2010:5). Thus, the racialized criminalizing logics that singularly affect African Americans (Miller 2021; Western 2018; Western and Sirois 2019) have strong parallels in the racialization of Indigenous Maya Guatemalan asylum seekers and their associations with illegality which are used to justify and reproduce punitive practices within the asylum process.

As in the carceral system (see Miller 2021), the organizational and technological mesh of the asylum system reaches beyond detention and includes fines, fees, bonds, and Alternatives to Detention programs that function as penal punishment. Those strategies of control blur the lines between institutional settings, home, community, and the everyday lives of immigrants (Foucault 1977; Miller 2021; Staples 2014; Western 2018). Fines, fees, and bonds keep asylum seekers and their families tethered to the system through indebtedness, thus reproducing poverty (Gilman and Romero 2018; Harris, Evans, and Beckett 2011). Bonds for asylum seekers are set at a minimum of $1,500 with an unlimited upper limit (Freedom for Immigrants 2018). Immigration judges and officers determine whether asylum seekers in detention are eligible for a bond release or parole,⁵ provided they are not considered to be a “flight risk.”⁶ Denise Gilman and Luis A. Romero (2018) find that bond amounts fluctuate to ensure detention facilities remain full.

Alternatives to Detention programs (ATDs) bring state surveillance and penal punishment into asylum seekers’ homes and communities (see Martinez-Aranda 2020). As federal budgets for immigration enforcement grow, the use of ATDs has swelled, with a 283 percent increase between 2015 and 2019 (Mills Rodrigo 2021). ATD surveillance mechanisms include telephonic reporting, GPS monitoring, smartphone surveillance applications, and face-to-face check-ins (Singer 2019), all contracted through the same private corporations that run detention facilities (see Gómez Cervantes et al. 2017). The majority (60 percent) of immigrants in ATDs are women, and 71 percent of all immigrants in ATDs are Central American (Singer 2019), many of whom are asylum seekers. The racialization of Central Americans, who comprise most of the asylum seekers tethered to the system, then becomes critical to maintaining the punitive logics of the system. For instance, between 2001 and 2020 fewer than half of Salvadoran, Guatemalan, and Honduran applicants were granted a bond hearing, compared to over 75 percent of Indian and Nepalese applicants, and bond amounts also vary widely by nationality (TRAC Immigration 2020).

Gender power relations and racialization mechanisms are key organizing principles of the asylum system manifested in three encounters: the credible fear interview, cash bonds to leave detention, and alternatives to detention programs. Although Maya Guatemalan asylum seekers enter the same asylum system that racializes Central American men as criminals and women as suspects of fraud and potential drains of public services, women and men are differentially situated in power hierarchies within the asylum bureaucracy and in their communities pre- and post-migration, making their asylum-seeking experiences racialized and gendered.⁷

METHODS AND DATA

From 2016 to 2019 we conducted an ethnographic project on relations between immigrants and established residents in a small town in rural Kansas. The project continued virtually from 2020 to 2021, following physical distance protocols of the COVID-19 pandemic. As part of this broader project, we conducted semi-structured, in-depth interviews with a subset of Maya Guatemalan immigrants (21 total) who were involved in the asylum system. This article focuses on these asylum seekers’ experiences, contextualized by multiple informal conversations during ethnographic fieldwork over the years, participant observation during interactions between asylum seekers and immigration officers, attorneys, and caseworkers, and formal interviews with asylum seekers and their families.

Ethnographic observations for the project took place in everyday settings, including public spaces such as parks, libraries, coffee shops, after school events, churches, and holiday festivities. After getting to know some of the immigrant families in town during the initial four months of fieldwork, we were invited into their homes and to family celebrations. We also spent time translating for study participants as they interacted with schools, health care providers, and, in some cases, attorneys or immigration officers. We accompanied asylum seekers to their appointments at the ISAP (Intensive Supervision Appearance Program part of ATDs), to immigration offices, and to appointments with immigration attorneys. This involved six- to eight-hour roundtrip car rides between the rural town and the asylum-related appointments in appointments in the closest city. The car rides allowed for in-depth conversations about their experiences with the asylum process and everyday life. While we did not begin the project aiming to study the asylum process, informants talked about their asylum experiences unprompted and frequently, demonstrating its significance in their lives; thus, we followed their cue.

Data for this article come primarily from ethnographic observations in the settings mentioned above. Once the pandemic began, we remained in touch with participants via telephone, which involved both short 15-minute conversations and hour-long phone calls. Relevant to this article, participants talked about the experiences their family members including children, sisters, brothers, and partners were having as they attempted to declare intention to apply for asylum at the border during the pandemic.

To document our impromptu conversations, interactions, and participant observation, we took detailed notes during events and encounters or immediately after they ended. In some instances, notetaking flowed naturally, such as during school or similar meetings; sometimes, it seemed inappropriate, such as in churches, backyard barbecues, or at birthday parties. In these cases, a detailed account of the event was audio recorded promptly after it ended and later transcribed. All IRB protocols were approved and are on file at the authors’ universities.

Formal interviews lasted between 30 minutes to 2.5 hours and were conducted in a location of the participants’ choice, mostly at their homes, and all were conducted in Spanish, recorded, and later transcribed verbatim. Verbal consent was obtained and recorded before all interviews. When participants preferred their interviews not to be recorded, extended notes were taken at the time of the interview. To maintain participants’ confidentiality, we use pseudonyms throughout for them and for the name of the town. After initial interviews were conducted, snowball sampling followed, where participants introduced us to their friends and families. Although our aim is not to generalize but to gain a deeper understanding of our study participants’ experiences, we aimed for some heterogeneity among our participants; thus, we reached families through multiple points in different parts of the town. Yet, no matter how many points of entry we tried, most families knew each other as most worked for the same major employer in town.

All 21 participants were of Maya Guatemalan origin, and all had entered the U.S. unauthorized seeking asylum. Fourteen were women and seven were men and their ages ranged between 14 and 32 years old. Among women, eight fled Guatemala with one or more of their children; two had entered as “unaccompanied minors” and had family members who served as guardians or parents in Kansas; and the rest had arrived alone but had family ties to Kansas. Three men migrated with their children; the rest were unaccompanied minors. All participants had family ties to Kansas.⁸ Participants’ first languages were K’iche’ (5) or Chuj (16); Spanish was their second (or third) language, ranging in proficiency from very limited to fluent. None of the asylum seekers spoke English, meaning they often needed translation assistance as they interacted with the asylum bureaucracies.

ATDs among our study participants included electronic monitoring ankle bracelets, phone tracking, and routine face-to-face check-ins, sometimes simultaneously. Five asylum seekers had an electronic monitoring device (three women and two men), and at the time we met, they had been wearing the device for between three months and three years. There were twice as many women (14) as men (7) on ATDs (reflecting general patterns of gender imbalances in ATDs). However, participant observation, regular conversations, and interviews in this ethnographic project provide us with rich material to compare our study participants’ different experiences along gender lines.

We analyzed fieldnotes and interview transcripts inductively, following a grounded theory approach (Charmaz 2006). Using two qualitative data analysis software packages, ATLAS.ti and later Dedoose, we coded these transcripts in two waves. First, relying on an open coding technique to allow for reflection of a broad overview of the data, and then through a mixture of focused and axial coding techniques, allowing for the most important themes to emerge from the data (Saldaña 2021). Codes from the second wave of coding include: “criminalization,” revealing the links between criminal justice and immigration punishments, “life under surveillance,” shedding light on everyday life under ATD, “scars,” expressing the physical and emotional costs of surveillance, and “economic cost,” shedding light on the costs of going through asylum. Other codes include: “asylum process,” “detention,” “trying to leave detention,” and “grilletes (ankle bracelets).” From these codes, themes emerged that revealed key points in the criminalization of asylum seekers through the continuum of the carceral state in the asylum process, which comprise the empirical sections of this article.

GENDER AND RACE IN ENCOUNTERS WITHIN THE CONTINUUM OF CONTROL

To investigate how Maya Guatemalan asylum seekers become embedded and indebted as they are racialized and gendered in the criminalized asylum system, we highlight three key moments, or “encounters,” to zoom in on key facets of the continuum of state control: (1) The Credible Fear Interview, (2) Cash Bonds, and (3) Alternative to Detention Programs. Racialization of illegality and gender tropes frame Central American asylum seekers as presumed suspects: as possible frauds or cheaters of the asylum system and as threats to the safety of U.S. communities (McKinnon 2016; Nayak 2015; Speed 2019). It is in this mistrust and suspicion where race and gender coalesce to structure the punitive process that asylum seekers navigate. Significantly, these “encounters” do not occur in a discrete, linear fashion; they are dynamic and often co-exist in asylum seekers’ lives. While in some encounters, women and men have similar experiences of control and punishment, as in society at large (Davis 2011), carceral practices intersect with patriarchal domination. Thus, key gender differences emerge.

Credible Fear Interview

To apply for asylum, applicants must pass the credible fear interview where officers assess the validity of their claims. Existing scholarship has pointed to the gendered and racialized frames that officers use to validate would-be asylum seekers’ claims (Llewellyn 2020; McKinnon 2016; Nayak 2015). The credible fear interview reflects an important first encounter with the continuum of state control as it puts in motion racialized and gendered notions of the worthy versus unworthy asylum seeker. In our study, only women discussed these experiences during these initial interviews, always unprompted. The gendered mechanisms of the carceral state were central in their accounts, particularly among women who had fled gender-based violence and had to recount experiences of trauma to prove their deservingness as victims of violence. Violeta’s case reflects this point.

Violeta, a Maya-Chuj woman, arrived at the Mexico-U.S. border in 2015 seeking asylum as she fled sexual violence in her hometown. Violeta’s first language is Chuj and spoke basic Spanish (which signals her social class disadvantage in Guatemala). Like many women in Guatemala (Menjívar and Drysdale Walsh 2016), Violeta had first tried to find protection there, but authorities ignored her pleas for help. Her assailant threatened her family. In the U.S. asylum system, Violeta was not provided a Chuj interpreter during her first interview, which was conducted in Spanish, but an officer found grounds for her fear of return. Like Violeta, Indigenous asylum seekers often lack access to proper interpretation services, leaving them at risk of deportation when they are unable to file their claims (Nolan 2019; Speed 2019). Violeta then had a “credible fear interview” with another officer. During this second interview, also conducted solely in Spanish, she again shared her traumatic experience. Both officers recorded Violeta’s accounts, and she was placed in detention while awaiting her asylum court date.

Immigration and Customs Enforcement (ICE) released Violeta on bond to her father, and she also was placed on ATD. A year later, she received notice that her case was rejected because her account in the two interviews did not match exactly, and she lacked proof that she had filed a claim with local Guatemalan authorities. Consistency in these interviews is key to status determination, yet this adds a gendered hurdle for women with the trauma of gendered and/or sexual violence. Paralleling Cheryl Llewellyn’s (2020) findings, Violeta’s interviews’ inconsistencies were seen as a potential fraud; her experiences were regarded with suspicion that needed corroboration by authorities and/or experts. Violeta appealed the decision in court and, as of 2022, was still awaiting a hearing.

While Maya Guatemalan, like other Central American, women are suspected of fraud and viewed as cheaters of the system, men, particularly single young men, are stereotyped as criminals or gang members (and potential threats to U.S. communities’ safety) even when they are fleeing gang-related violence (Abrego and Villalpando 2021). Alfonso, a 26-year-old Maya-Chuj Guatemalan deaf man who was fleeing violence and discrimination in his community, was denied the chance to even apply for asylum; he was deported to Mexico, even though he is from Guatemala, through expedited removal. Alfonso was traveling with an aunt and her child. Once apprehended at the border they were separated; while Alfonso was unable to communicate with immigration officers, denied sign language interpretation, and was fast-tracked to deportation, his aunt passed through to the credible fear interview and was eventually released to her family in Kansas in ATD to await her court hearing.

After the credible fear interview, some of those who are deemed credible asylum seekers are sent to detention facilities, others are released on parole with a cash bond, and others are placed on ATDs (we could not identify what factors determine these different placements) as they await their hearings.

Cash Bonds: The Long Arm of Detention

The carceral system that Maya Guatemalan asylum seekers enter amplifies social class, racial, and gender inequities, first through detention/incarceration and then through post-detention bonds. Cash bonds magnify the effects of asylum seekers’ already vulnerable social class position by adding a layer of economic vulnerability, thus embedding and indebting them to the asylum system. The average bond amount for asylum seekers ranges from $500 to $25,000, depending on court location (TRAC Immigration 2020). Indigenous women in Guatemala earn less than Indigenous men, and less than non-Indigenous women, even when they work as much or more (Chirix García and Sajbin Velásquez 2019). Thus, Indigenous women arrive in the United States with even more limited financial resources than Indigenous men, a disadvantage compounded by the large debts incurred for journey-related hefty expenses. Due to gendered labor markets and family responsibilities, once in post-detention, women earn less and hold more unstable jobs than their male counterparts. And while women and men borrow from their networks to pay for these bonds (adding to significant debts incurred for the journeys), women’s lower-paying and more insecure jobs leave them more economically dependent on their male family members, exacerbating unequal gender power dynamics.⁹

Delia, a Maya-Chuj woman, and her three children arrived at the southern U.S. border seeking asylum. Delia’s husband, Angel, who was living and working in Kansas, paid several thousand dollars to ICE for Delia’s and the children’s bond. Angel also hired an immigration attorney to help with the process. By 2019, Angel had paid well over $25,000 for the release of his family from detention, plus the attorney’s fees. He used all his savings, which he had set aside for the purchase of a house and had to borrow from his siblings and co-workers to pay the bond. Delia had arrived without financial resources, deeply in debt, and dependent on her husband since she did not earn an income in Guatemala. Once out of detention, she tried to help repay Angel’s loans, yet, without work authorization, she earned an irregular and limited income by providing childcare to other Guatemalan women in the town where they lived. Thus, Indigenous women like Delia arrive lacking financial resources and are deeply indebted to co-ethnics, becoming further entangled in debt and under surveillance as they remain tethered to the asylum system.

Men also become indebted, but their experiences differ. Ernesto, Maya-Chuj, who arrived seeking asylum at age 18 with his son, was also released on bond to his family in Kansas. Like Delia, Ernesto was indebted to his family for the bond and the costs of his journey. However, unlike Delia, Ernesto had been working for pay in Guatemala for years before migrating, and upon arrival, his brother mobilized his social ties to help him find third-shift work at a cleaning company. Unlike Delia, Ernesto’s informal ties helped him find work right away in relatively more stable and better-paid jobs that are more available for men, even if undocumented, which allowed him to repay his debt more easily. Within 1 year of waiting for his asylum court, Ernesto had repaid his bond debt to his family, while Delia, two years later, was still heavily indebted, given her meager earnings as a babysitter.

The debt acquired to cover bonds and fees intensifies social class, race, and gender intersections; debt reveals the harmful effects of previous debts as Indigenous in Guatemala seldom possess the thousands of dollars required to make the journey, which, in cumulative fashion, further weakens these asylum seekers’ social and economic standing in their U.S. communities. However, women’s and men’s social position and differential access to resources before and after migration, such as access to gendered social ties (Menjívar 2000) and segregated work opportunities, shape their potential to remain indebted. Thus, bonds, the same carceral punishment that keeps asylum seekers tethered to the asylum system, have key gendered effects for these asylum seekers, reflecting the unequal race and gender power dynamics within the continuum of state control.

Alternatives to Detention Programs (ATDs)

Like the entanglement of post-detention rules and regulations that keep the formerly incarcerated tied to the justice system (Miller 2021; Western 2018), carceral control and punishment for asylum seekers are implemented through ATDs. These techniques work to surveil asylum seekers’ mobility but also ensure profitability for the private companies that manage ATDs while asylum seekers await asylum determination (Gilman and Romero 2018). Here too, a gendered pattern emerges as more than 60 percent of those on ATDs are women (Singer 2019). To compound their vulnerability, most asylum seekers under ATDs in our study were not given work permits. Yet asylum seekers on ATDs must work to survive, repay various loans, and pay for fees associated with the asylum process (e.g., bonds and attorney fees). Many asylum seekers are also breadwinners for their families both in the United States and in Guatemala. And when they work for pay, they do so “unauthorized” and thus under the threat of detection (and deportation). Failure to comply with ATD stipulations brings this threat to individual asylum seekers as well as undocumented and U.S. citizen members of their communities (see also Martinez-Aranda 2022).

Intersections of gender and race are baked into ATD management through a continuum of control that ensures asylum seekers’ embeddedness and indebtedness in the system. To illustrate, we examine two forms of ATD surveillance post-detention: electronic monitoring ankle bracelets (EMDs) and in-person office check-ins. Asylum seekers can be placed on more than one ATD at once and in a nonlinear fashion, ensuring immigrants’ control both as sources of profit and as targets of the system.

Electronic monitoring.

Similar to “community corrections” (Schenwar and Law 2020), electronic monitoring normalizes punishment and control in immigrants’ homes and communities. Forty-six percent of immigrants under ATDs are monitored through Electronic Monitoring Devices (EMDs), or ankle bracelets, known among immigrants as “grilletes” or shackles (Singer 2019). When this practice started, wearing EMDs was associated with criminality. But in rural Kansas, we observed a shift over time and a situational change: the longer asylum seekers wore EMDs and as more arrivals wore them, EMDs became familiar. Perceptions of EMDs also varied by context; with time, at work, in the community, and social activities, EMDs acquired various meanings. For instance, by 2020, EMDs were no longer associated with crime in the immigrant community, but in the eyes of the White residents of the town, EMDs marked criminality and stigma. Toward the end of our fieldwork, EMDs signaled the potential arrival of ICE in the immigrant community (see also Martinez-Aranda 2022), which meant that those wearing EMDs were to be avoided socially.

EMD surveillance is not optional. Detention officers do not explain why some released asylum seekers are placed under such surveillance; officers only provide instructions for utilizing the surveillance system correctly. As Ofelia, a Maya-Chuj woman, said, ICE officers explained to her:

Well now, they told me, “Well we are going to put this on [the EMD on her ankle].” They said, “it is a bracelet that we are going to put on” … “this is so they can surveil you” I think that is what they told me.

Like Ofelia, Isaac, a Maya-Chuj man, was unsure why officers placed an EMD on his ankle when he was seeking asylum. Like Ofelia and Isaac, asylum seekers across genders were not given an option between wearing the monitoring device or spending more time in detention. Intersecting raced and gendered mechanisms were operating here, stemming from the power differential between the asylum seekers and the (often Latino, non-Indigenous) immigration officers, but also from these asylum seekers’ past experiences with Guatemalan government authorities (see also Barak 2023). Generally, Indigenous women and men in Guatemala have learned not to challenge authorities, a legacy of histories of anti-Indigenous violence and racism (Menjívar 2011; Speed 2019). Thus, women and men in our study felt they could not contradict the officers, worrying about the consequences of family separation if they asked questions or did not comply.

Although there were physical and emotional costs of EMDs for both women and men, it was women who expressed feeling this pain more acutely while wearing the device. Francisca, a 21-year-old Maya-K’iche’ woman, explained, “I felt very uncomfortable. It is very heavy … so heavy …” The heavy device made it difficult to move freely or walk around the house. The EMDs must be charged every few hours, constricting mobility and requiring them to plug in their legs against the wall, for hours at a time, to recharge the device. The devices grow hot, sometimes burning the flesh. Ofelia, who wore the EMD for close to a year shared, “When one walks, oh how it hurts! And I am here in the house, and how it hurts. Ay no, I couldn’t take it anymore.” For women, wearing these devices often activates psychological and physical scars from the gender-based violence they fled in Guatemala (see also Menjívar 2011). Daniela, who wore the EMD for three months, explained, “I feel bad because I have to wear that thing on my foot, and one feels sad that they put that thing on.” Later in our conversation, Daniela lifted her skirt to show a thick scar on her ankle where the EMD had been placed, a year after it was removed.¹⁰

EMDs punitiveness interacted with gendered and classed expectations of household division of labor among our participants; the women routinely cooked for their families, made hand-made tortillas, and cared for their children. These activities were central to these women’s identities as mothers and wives. The EMDs impeded these activities, often leaving women feeling useless. Francisca explained,

How could I walk like that? I was enchufada [plugged into the wall], and how am I going to cook if I was plugged in there? It was charging and I was cooking, and it was hurting me a lot.

Francisca’s attempt to cook and charge the device at the same time proved impractical and physically painful. It was also difficult to feed her son when the EMD needed recharging, which happened regularly because the battery did not last long. EMDs force women to alter their behaviors, expectations, and their everyday lives, including their mothering work. Paralleling the carceral state’s control over Latina immigrant and Black women (Escobar 2016) EMDs therefore sabotage these asylum-seeking women’s motherhood roles and identities, with consequential emotional and familial repercussions.

For men, EMDs interfered in the formation of social ties in the community and male-focused social networks, which otherwise provided them with access to a wider range of resources. Fernando, who had been under EMD surveillance for 3 years (the longest among our study participants), had stopped participating in his favorite activities, including playing soccer and basketball, because of the EMD he wore. His soccer teammates, immigrant Latinos, made fun of him for wearing the device, amplifying his self-consciousness about being tied to ICE control. Fernando was especially ashamed to play basketball when his Guatemalan team played against Anglo-white town residents. He worried White players would think he was a criminal. Also, the EMD rubbing against his leg while exercising caused rashes and worsened the scarring. Importantly, for Latino men, group sports bond them with other men and become an important source of information and resources about everyday life and work opportunities (Trouille 2021). In Fernando’s case, basketball created a rare opportunity to connect to the White residents in an otherwise largely segregated town. Missing out on sports activities increases men’s community isolation and hinders their prospects for social integration.

Context matters; in the workplace, EMDs brought stigma and shame as there they were associated with community corrections punishments. Unlike men, who wore long pants that covered their EMDs in public, women wore skirts due to religious, cultural, and personal preferences. To cover their EMDs, some women changed their attire to pants, which made them feel uncomfortable and out of place. For Daniela, an Evangelical Christian woman whose church had a strict dress code for women to wear skirts and dresses, hiding the EMD was difficult when she had to walk home from work, as walking with a skirt meant exposing her ankles. To hide the EMD, she started wearing pants, changed her way of walking, and generally altered her behavior. This is how the gendered embodiment of punishment exerts control beyond prison walls, as asylum seekers modify their comportment when under surveillance (see also García 2019).

Office check-ins.

Another form of ATD surveillance consists of routine in-person check-ins. Often asylum seekers were placed in EMDs, telephone monitoring, and routine office check-ins—all at once, all ran by the same private corporation, The Geo Group Inc. Thus, in addition to EMDs, some asylum seekers, like Daniela and Isaac, were required meet with a case manager at the ISAP office once per month and a separate appointment with immigration officers at an ICE office. Asylum seekers in our study could not obtain driver’s licenses because they remained out of status while awaiting adjudication of their applications. Kansas does not extend driver’s licenses to undocumented individuals. Thus, living three hours away from check-in offices, asylum seekers relied on co-ethnics’ expensive car rides, around $300 per person, to make it to the appointments. Mostly, non-Indigenous Latinos saw an opportunity to make money off the Indigenous by charging them exorbitant fees for car rides. For instance, Daniela was often charged $300 by Tania, a non-Indigenous Mexican woman, for a ride to her ICE appointments (see also Gómez Cervantes and Menjívar 2020). When possible, Gómez Cervantes drove asylum seekers to their appointments, free of charge. Check-ins created similar mechanisms of control for women and men, but key gendered patterns emerged.

The check-ins lasted under 15 minutes; at each visit, asylum applicants were asked the same set of questions: current residency, who they live with, current telephone number, and telephone number of a person in case they cannot be reached. For this, our study participants had to miss an entire day’s worth of wages and be stuck in a six-to-eight-hour roundtrip car ride. We noticed a gendered pattern: asylum seekers who were mothers always brought their children to the appointment, while fathers did not. Daniela’s and Isaac’s cases are illustrative. Daniela’s 4-year-old son, Marco, missed school at least once a month and experienced the punitiveness of carceral surveillance directly by being present at his mother’s check-in. Daniela worried that if immigration officers decided to deport her and she did not bring Marco, they would be separated, and the boy would be placed under state care. Isaac, who also migrated with his son, Johnny, left him at school or in the care of his sister-in-law when he went to the in-person check-ins. This is how race, gender, parenthood, and criminalization intersect when living in the shadow of the carceral state.

ATD surveillance hindered women and men asylum seekers’ possibilities to earn higher wages, adding to their indebtedness to co-ethnics and embeddedness in the carceral system in gendered ways. Because Daniela would have to miss work at least once a month and sometimes more days due to additional check-ins with ICE officers, she worked through a temporary agency, earning about half of what she would have earned had she been hired directly by her employer. Daniela also avoided working the night shift so she could care for Marco at night. And she never missed a checkin, which meant the times we could not drive her to the ISAP office in the three years she waited for her court date, she paid between $250 and $300 per ride at least once a month to co-ethnic raiteros (ride providers), plus the payments to her attorney, leaving her with little for living expenses for herself and her son. She also lost wages on the days she was absent from work. To be sure, men faced similar indebtedness, but they were able to pay off their debts much more quickly than women. Men had more flexibility for paid work, often working night shifts because they could leave their children in the care of women in the community. For instance, Isaac and Fernando worked second and third shifts, meaning they could attend their 8 am ISAP appointments and be back on time for their shift. Furthermore, men were less likely to work parttime through the agency and thus had a steadier income. In the post-detention continuum of punishment women and men remain indebted and embedded within the carceral state but in deeply gendered ways. Like women of color entangled in the penal system, these Maya Guatemalan women end up raising their children under state surveillance.

DISCUSSION AND CONCLUSIONS

Our examination of three encounters between Maya Guatemalan asylum seekers and the asylum bureaucracy reveals a continuum of state control baked into the asylum process that reproduces carceral logics, racialization practices, and punitive ideologies in pre- and post-detention encounters. Each encounter permitted us to examine the nuanced intersections of race and gender over time. Although all our study participants are racialized as Indigenous and Central Americans, gender inflects their experiences at different moments in the asylum process. Reflecting the “shadow carceral state” (Beckett and Murakawa 2012), the post-asylum process reproduces a classed, gendered, and racialized continuum of punishment and control that harms asylum seekers in the short and long term, stalling their socioeconomic integration. The criminalization process keeps asylum-seekers indebted and embedded in the carceral web, and as a race-making mechanism (Hernández 2017), it racializes unwanted asylum seekers and magnifies race and gender power dynamics in asylum-seekers’ post-detention everyday lives.

Anti-Indigenous racism within Latino communities (Menjívar 2021) and beyond does not simply add racialized layers of discrimination to the experiences of Maya Guatemalan women and men seeking asylum. Intra-Latino racism intersects with gender and social class to magnify inequalities, often manifested in the neglect of Indigenous languages and interpretation needs (Gómez Cervantes 2023). Racism also shapes interactions between Indigenous and (non-Indigenous) Latinos and with (Latino) immigration officers, showing up in abuses during detention and exploitative treatment post-detention from (non-Indigenous) Latino/a immigrants. As race and social class are entwined in Guatemala, Maya asylum seekers arrive with educational and linguistic disadvantages exacerbated in interactions with other Latinos as these asylum seekers remain tethered to the asylum system through bonds and debt. Already poor when they leave Guatemala, they acquire debt during the costly journeys north, and at entry fall thousands of dollars further in debt to co-ethnics as they exit detention and shoulder the burden of living under ATDs surveillance. But debt, as everything else, is gendered and raced and magnifies existing power imbalances.

Racialized as undocumented and suspects of criminality and gamers of the system, Maya Guatemalan asylum seekers’ experiences are gendered in consequential ways. Women’s financial responsibilities and their role as workers are diminished, contributing to pushing them toward an exploitable and vulnerable labor force. In contrast, the structure of the criminalized asylum process, combined with gendered social networks, can allow men to continue maintaining their role as breadwinners, even under the surveillance of the state. As women have fewer opportunities for stable full-time jobs than men, the weight of indebtedness and state embeddedness is exacerbated for them, reflecting the conflation of patriarchy and the carceral state. As state control intersects with gender, it intrudes into women’s mothering work, household dynamics, paid labor, and behavior and dress, entrenching the gendered and racialized embodiment of state control through EMDs and office check-ins. On the other hand, state surveillance can increase isolation for men and shrink their social ties with co-ethnics and beyond. Governing mechanisms that construct Latinos and, especially Indigenous (Adler 2006), as targets of enforcement, have gendered consequences for family and community, given that governing itself is gendered (Haney 2010).

Although we have called attention to discriminatory practices in the asylum process, in a perverse twist, calls for a fair process alone can naturalize the close alignment between the asylum and the criminal justice systems. Efforts focused solely on reform, tinkering with a policy or two, veil this close link and ignore the fact that criminalizing asylum seekers, immigrants, and other vulnerable groups as unwanted populations as a race-making tool that is fundamentally unjust (cf. Barak 2023).

With an empirical focus on the experiences of Indigenous Guatemalan asylum seekers, we have built on the general scholarship on the criminalization of immigration to zoom in on how race and gender undergird a continuum of criminalization of the asylum process, which supposedly offers humanitarian protection to those in need. Our findings build on existing scholarship on the ongoing legal exclusion of Central Americans and their criminalization within and beyond formal bureaucratic processes. Central Americans have become the emblematic case not only of the “overcriminalized” (Chacón 2012) but also of the over-surveilled, predicated on their racialization as criminals and suspects.

As of this writing in December 2023, the asylum backlog has ballooned to over 3 million cases, growing by over a million cases since 2022 (TRAC Immigration 2023). Since the COVID-19 pandemic the U.S. government has dealt with this influx by closing the border under Title 42, enhancing asylum and border patrol officers’ discretion to decide who is deemed of protection, adding more judges to address the rising number of cases, creating new technologies to the asylum application process outside of the United States, and easing the deportation of family units. These policies continue to reproduce carceral logics and enhance the continuum of state control that reinforces racialized and gendered systems of power; leave untouched the true “root causes” of migration where the United States has played a historical role in creating and distract from this responsibility; and leave intact categories of admission that serve to exclude ever more people in need of protection.

A lens of a continuum of state control can inform (and complicate) understandings of existing practices and bureaucratic processes that while on their face seem “neutral” (or even “humanitarian”) in practice reflect the comingling of immigration and criminal law and the broader reach of criminalization techniques that engulf ever more groups, including asylum seekers. Our examination extends scholarship on intersections of race, racialization, and gender to understand asylum seeking, capturing important spillover effects into everyday life, far beyond the adjudication of their cases.

Biographies

Cecilia Menjívar holds the Dorothy L. Meier Chair and is a professor of sociology at UCLA. Her research falls into two areas: immigration from Central America to the United States and gender-based violence in Central America, with a theoretical thread on state power through bureaucracies. She has focused attention on the effects of the immigration system and enforcement strategies on various aspects of immigrants’ lives. She has received a John Simon Guggenheim Fellowship and an Andrew Carnegie Fellowship. She also was named a Social Justice Hero by the Museum of Social Justice in Los Angeles. She has served as Vice-President of the American Sociological Association and as its President.

Andrea Gómez Cervantes is an Assistant Professor in the Department of Sociology and an affiliate in the Department of Latin American and Latino Studies at Wake Forest University. Her research centers on the intersections of immigration policy and violence on the lives of Latin American migrants living in the United States as well as gender violence in Latin America. She is a University of California President’s Fellow, a Ford Fellow, and an American Sociological Association Minority Fellow. Her research has received support from the National Science Foundation as well as affiliated universities.