Cultural Superimposition in Humanitarian Protection

The second Trump Administration began with an onslaught of executive orders, with a significant portion aimed at curtailing the ‘invasion’ of undocumented noncitizens in the U.S. The purported danger? Hostile cartel, gang, and transnational criminal organization members entering the U.S. as wolves in sheep clothes. A phobia fueled by White supremacist ideologies like the Great Replacement theory that sensationalize outlier cases as the norm. Yet, the reality behind the hysteria is that most of these noncitizens come to the U.S. in pursuit of refuge. They leave their countries, homes, and communities, not to wreak havoc in the U.S., but to flee the very gangs and criminal organizations that the Trump Administration contends to combat. Under the law, these noncitizens seeking protection in the U.S. are entitled to humanitarian relief upon a showing that they have been, or will be, persecuted due to their political opinion or some other protected ground. In the last decade, the U.S.’s largest population of humanitarian relief seekers were migrants from El Salvador, Guatemala, and Honduras—a significant number of which were persecuted for their anti-gang views. This Article demonstrates that anti-gang views, when situated in the sociopolitical context of these three countries, as required by law, are political opinions, and therefore, legitimate grounds for humanitarian protection. In doing so, the Article identifies a longstanding legal phenomenon: many U.S. courts erroneously reduce anti-gang views to mere self-interest in finding that these views cannot form the basis for a political opinion, in contravention of international standards and guidance. This prevailing jurisprudence is a product of cultural superimposition. An original concept, cultural superimposition is the erroneous, and racist, centering of U.S. psyche by the judiciary in the analysis of facts and circumstances that arise out of nondominant cultures. This occurs when the judiciary superimposes the dominant, Eurocentric ethos and makes it the primary lens to interpret the facts of a case and relegates the environment the facts arose from to the background. As this act is responsible for the denials of protection to countless humanitarian relief seekers originating from these three Central American countries, the Article demands a dismantling of our country’s current humanitarian protection laws to ensure fairer results.