Dead Silent: Heuristics, Silent Motives, and Asylum

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Anjum Gupta is Associate Professor of Law and Director of the Immigrant Rights Clinic at
Rutgers School of Law.

Pursuant to our obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The “on account of” prong of the asylum determination is referred to as the nexus requirement. The paradigmatic asylum case features a man fleeing a dictatorial regime that has persecuted or would persecute him on account of his political dissidence or ethnicity. Absent credibility concerns, these cases are routinely granted, and immigration judges do not question whether the nexus requirement has been met.

In other cases, however, for example cases in which a woman is fleeing gender-based violence such as domestic violence, trafficking, or forced marriage, or cases in which a young man is fleeing retribution because he refused recruitment to a gang, the immigration agency has frequently denied relief. Often, even if the applicant has shown that she or he is a member of a cognizable particular social group or has another protected trait, immigration judges have held that the nexus requirement has not been met. Judges have reasoned that “personal” or “criminal” reasons motivated the persecution, as opposed to the protected ground. In the domestic violence context, for example, immigration judges have held that the abuse occurred because the abuser was a “despicable person” or due to his “inherent meanness,” rather than on account of the victim’s gender or social group. Similarly, in the gang context, immigration judges have held that the persecution occurred due to generalized violence or the gang members’ desire for increased power, as opposed to the victim’s gender or social group.

Yet, in the paradigmatic asylum case, immigration judges have not stopped to ask whether the dictator was a “despicable person” or in pursuit of more power. They have implicitly recognized that although these things may of course be true, it is also clear that the persecution occurred due to the victim’s political opinion or ethnicity.

This article attempts to explain that discrepancy. I argue that, unlike the paradigmatic asylum case, where the persecutor’s motives are overt and well-documented, some gender-based cases and cases based on gang violence feature “silent motives.” In cases involving silent motives, it falls upon the immigration judge to fill in the nexus gap left by this silence. Accordingly, unlike in the paradigmatic asylum case, the nexus determination in such cases is susceptible to influence from the immigration judge’s biases.

This article uses theories from cognitive science to posit that when immigration judges analyze silent motives cases, they use heuristics and other mental shortcuts, which often work against finding nexus on account of a protected ground. In two prior articles—The New Nexus and Nexus Redux—I proposed a new standard for evaluating nexus in asylum cases. This article explains why such a standard is necessary.

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