court gestures

As promised in the beginning of my Frak the "policy makers" post and not delivered, I will write some more delayed musings on asylum. One problem with writing this now is that the conversation on which I'm basing it took place five days ago three weeks ago, an eternity for the purposes of writing accurate field notes (given my memory, anyway). Better now than never.

On Monday May 19th I met with Mike Kagan, a Senior Fellow in Human Rights Law at at AUC who runs the website http://www.rsdwatch.org/ (RSD=refugee status determination) and worked for Amera. He's about my age, and his enthusiasm and knowledge about asylum in all its complexities made for a fascinating hour in the Pottery Cafe.

I find that I write differently now that I know people I'm writing about may read what I'm writing. Not dishonestly, I just pick my words.

Anyway, what follows is a rundown of some of the four pages of notes I scribbled down while we chatted.

Mike said that in the U.S., the asylum model is adversarial, and there's an international consensus that this is not a good thing. I agree. In the trial at which I testified last spring, the government attorney was brutal. I mean, just unbelievably cruel. I've seen enough tv court scenes—I know how prosecutors can get, but ferchrissake. It's the same thing as attacking the character of a survivor of a violent rape (which in this case the applicant was as well). How on earth does this enhance our humanity?

Right, not the goal.

Also, in the U.S., there is no guarantee the applicant will get any attorney (let alone a competent one). This is not dissimilar from the experience of many poor defendants in non-migration-related cases. Mike noted an amusingly obvious statistic demonstrating a high correlation of having a lawyer with success. It couldn't be otherwise—the stylized knowledge required to argue asylum cases is so specific, as I've found in writing affidavits and giving testimony. It's different in Canada (of course). There, there is government funding provided for immigration lawyers. In the U.S., there are some groups- he mentioned the Seattle-based Northwest Immigrant Rights Project, and I've worked with others.

I brought the fact that in my experience, a lot of the cases have come to me via first or second-year law associates in corporate firms who frustrate the hell out of me, because they so often screw up the cases and (I feel) they seem to think they can redeem their bloodied, battered and bruised souls by jumping into this. I'm trying to work through my prejudices and see them as people, really. After all, some of my best friends are corporate lawyers. Mike confirmed that asylum cases are particularly popular among corporate lawyers, and that is a huge help for asylum "clients" (weird word use, no?). Even if they aren't experts, having a pro-bono corporate attorney is better than the applicant having no lawyer at all, and there is still a very high number without any legal representation.

He brought up the voyeurism of suffering in the courts—showing off bruises, wounds, scars. If the applicant doesn't like it, too bad. Thanks to my own case against SF for that manhole I fell into, I'm familiar with the idea (albeit in a far far less traumatizing way). Mike said—and I liked this—that asylum in the U.S. is "a process of fitting a square peg in a round hole, and the square peg is a human being." One of the most awful examples of this is a formerly common question asked by INS/ICE: "What would you like to do now?" A positive answer, e.g., go to school, start a business, raise a family, would hurt the applicant! Immigration judges are looking for a particular sort of victim, and the tiniest amount of hope demonstrates insufficient victimhood. It's one of the inherent flaws in an adversarial system.

The arbitrary nature of the U.S. asylum system is detailed in an article published in the Stanford Law Review, Refugee Roulette: Disparities in Asylum Adjudication. A New York Times article summarizing the results is here. In a nutshell, it all comes down to the judge.

Mike says asylum law is better practiced in a somewhat informal, non-adversarial setting. As it is in the U.S., it's an immense bureaucracy. There are hundreds of thousands of applicants, and from my own experience, I've found that often the government attorneys have barely had time to look at their cases. Not surprisingly, Mike says there's a high burnout rate. Some advocates would prefer to focus asylum law on group status and focus on individuals only in very specific cases. That's the logic behind the African Unity Convention of 1969, focusing on mass asylum (e.g., if they're from the Congo or Iraq, we should take them, period). It certainly would help resource-wise, but would remove one of the most important aspects of asylum law—giving the judges something about which to feel magnanimous and almighty. It would also mean we'd be accepting a bunch more immigrants, and some of them (horrors!) would be Arabs. And other freedom haters.

The UNHCR has been another mystery to me, because it seems to mean so many different things in different places. Mike confirmed that this is true. In places with government-run asylum systems like the U.S. and E.U., UNHCR takes on a relatively progressive advisory role- promoting refugee laws, giving advice to governments, filing amicus briefs on behalf of applicants. But in Egypt, for example, UNHCR basically runs the asylum system. Since 1954 the Egyptian government has given it that power. Thus, the politics of UNHCR are very different in the Global South. In many places, such agreements accord the UNHCR much more responsibility than it can afford, like providing for the immigrants after they've been granted asylum ("you gave them asylum, you take care of them!"). Government attitudes in much of the South are, he says, that the U.N. is responsible for everything, and in some cases it really starts acting like a government.

Mike tells me that the U.S. and Canada are actually much more open than E.U. This is in part because the U.S. has all those family reunification laws and whatnot. In the E.U., asylum is the only door open for legal immigration, and governments can openly discriminate through uneven application of asylum law.

In terms of international refugee law, there are five grounds for eligibility, Race, Religion, Nationality, Social Group, Political Opinion. Mike says that most immigration attorneys understand critical race theory and the fact that race is a construct. Nationality is of course similarly problematic, and very rarely invoked. He also says that most immigration attorneys would like to put themselves out of a job. Apparently, my attitude towards borders is not as much of an exception within the field as I have thought. Yet, I don't see how such work, noble as it is on a one-on-one basis, can ever do away with itself.

Much of my work has revolved around concocting arguments for applicants' membership in the murky category of "social group." It's a hard one—how do you convince politically-appointed judges to respect social categories that may not exist in their own country? How do you explain vast cultural differences between received identity categories (e.g., "homosexual")? Furthermore, how do you explain the difference between an analytical group category and a category of explicit group identity to these dedazo-ed knuckleheads. Sorry, unfair. Some judges actually think deeply. But the system is too arbitrary to be able to count on that.

Social group membership is supposed to be based in a fundamental, immutable or unchangeable characteristic. This could include family, sex, or through progressive interpretation, sexual orientation. I've been involved in a sexual orientation case as a direct, not expert, witness. Thankfully, we won that one, and my M-t-F friend now (formerly a lawyer in Honduras) lives happily somewhere near Hollywood and occasionally sends me emails with lots of blinking hearts and flowers, and links to provocative pictures of herself.

Other social group categories I've advocated for include: economically independent young maquiladora-working women, people who believe that the police should protect citizens from rape and murder and act on said beliefs, former gang members, and family members of victims of gang and/or police violence. It is argued that it is not enough to have a fundamental social characteristic; should one have to prove persecution, or should their identity simply be socially significant? Never mind that identity doesn't necessarily correspond with individual subjectivity—the only subjectivity recognized by the courts is really a performed identity of victimhood, in the end not subjectivity at all. So my job is to address the questions:

  1. Why in Honduras is a particular group understood as a particular social category? (a pain, when I'm trying to deconstruct such notions), and
  2. Why would said group be in danger?

One question I'm interested in is: what effect does the creation and repetition of such narratives have on refugees' subjectivities? I looked at a similar question with AA narratives in Honduras, following the work of Stanley Brandes on that topic in Mexico. I don't have an answer—definitely needs more fieldwork for that—but those stylized narratives of localized suffering, practiced, told and retold to the hopefully benevolent U.S. authorities, have got to influence the stories people tell themselves and their feelings about their status as victims.

The organizations that position themselves as advocates for immigrants, even if their members hold radical anti-border stances, end up playing the game. They need money, after all. And part of the problem with the non-profit industrial complex (a term coined by INCITE! Women of Color Against Violence in The Revolution Will Not Be Funded—thanks to Martina for the reference) is the inherent devil's bargain. You can't ask the neoliberal corporate machine to willingly finance its own destruction. And the human rights discourse in incapable of envisioning such an outcome anyway, constructed as it is within the same constraints. In order to get money for advocacy, groups have to promote a certain feel-good vision to its "corporate citizen" sponsors. This includes the problem focus, in which the problem originates elsewhere. The U.S. and corporate philanthropists are thus positioned as saviors, and everyone in the process, from the corporate law firm associate to the immigration judge (and let's not exclude the expert witness here) gets to feel like a big ol' hero, bringing selected noble savages into civilization.

Corporate logic infiltrates elsewhere in the process, in the form of industrial restructuring. Mike mentioned, "as an immigration lawyer, I have a list of forms with boxes I can fit you in to see if you qualify." He says they're available on the U.S. Citizen and Immigration Services website. What has law been dumbed down to? Mind you, this isn't the lawyers' fault, any more than the deskilling inherent to computer charting can be blamed on nurses or teaching to the test can be blamed on schoolteachers. It's the roboticization of ethics. It's the problem I have with turnitin.com, which my own institution tries, with fanatical zeal, to insist I use. Turns out I'm unethical if I don't let a computer dictate my ethics for me. It's almost as if there's some sort of corporate payoff involved...oh, yeah. Right, there is. Anyway, asylum-cum-standardized testing scares me.

Then there's the question of repatriation. Mike told me to look up B.S. Chimni on this (and in general). One constant, he notes, is that refugees themselves never get to decide if, how and where they're repatriated. They're left in a limbo (actually, not sure what I meant by this—this is the problem with transcribing my notes three weeks after the fact).

Some say, and here again I'm quoting my scribbled notes from our conversation, 9/11 has had less of an effect than you'd think. "Reagan," I quote my notes, "may have been the best refugee president." Wow. Certainly in terms of producing them in Central America. But seriously, as Mike pointed out, Reagan allowed twice the number of refugees per year as did Clinton, and the U.S. quota shrunk from 200 thousand to 70 thousand per year from Reagan to Clinton. And srsly, Clinton and Haiti. Need more be said?

Another difference (Mike noted) between the E.U. and U.S. re: asylum, stemming from the earlier-mentioned issue of asylum being the only legal path to immigration, is that in the E.U. asylum has huge political enemies. In the U.S., this isn't the case. Immigrant laborers, yes, but asylum applicants, no. The numbers are withering here, reflecting a weakened human rights discourse but not as a result of any significant opposition. Human rights discourse works best when combined with other geopolitical priorities. Take the Cold War. In that context, granting asylum was our way of demonstrating our own superiority over the Soviets. Our policy toward Cuba is the last vestige of that. He says the language of human rights still has cachet, but we've lost the geopolitical interest. Mike said, recognizing the dishonesty of it, that it might be good for immigrants if we use asylum to give back to the U.S. a sense of moral superiority. Make moral superiority, demonstrated through our willingness to grant asylum to victims of violence abroad, a "brand image." It's not true, of course, but he says it would be a practical way to approach the realpolitik.

From a lawyer's perspective, I think this makes good sense. It may be a way to make the current system help a few more people. From the perspective of an expert witness, it makes sense, too, for the same reasons.

But from a revolutionary perspective, it makes me cringe.