Uncertainty, political asylum and the expert witness

Political asylum has always involved uncertainty. Uncertainty is built into the system (Beneduce 2015; Biehl 2015; Griffiths 2013; Inghilleri 2005; Talebi 2019). In the US political asylum process, it is always unclear whether one's petition will be successful, unclear to which judge one's case will be assigned and unclear if the government attorney will be fair or not, kind or not. But there is more than that. There is also the uncertainty of seeing one's family again, and the difficulty of this being not a matter of when you might see your family, but if you will. These thoughts persist alongside the certainty that if you do return to your home country, you will be a victim of political persecution, including the possibility of abuse, torture or death. For political asylum applicants, all of this is normal. Here in the United States, as they wait for their court dates, and often have their hearings postponed and rescheduled multiple times, uncertainty becomes a part of their life in this country. The uncertainty so familiar to political asylum candidates in the US and elsewhere is now shared by many others around the world. Uncertainty is a keyword for this current pandemic, and for earlier ones (Samimiam-Darash 2013). For individuals going through the asylum process at this moment, the pandemic adds new layers of uncertainty.

The first emails I received were cancellations: notifications from lawyers sharing with me that upcoming hearings were cancelled, as the courts themselves were shutting down. One case scheduled during the pandemic was one for which I originally wrote my report in 2014. The applicant has been waiting for six years. And then I received the email cancelling the case. It is now postponed for more than a year. But alongside such ‘de-schedulings’, a new word I've learned during the pandemic, there have been ongoing requests for new cases. If the courts were no longer doing hearings in person, and not shifting immigration hearings to virtual proceedings, they were still registering new cases. An expert can be an important part of this process.

Applying for political asylum operates differently by country. In the United States, it involves submitting a series of papers and forms, personal statements, corroborating documents, cases prepared by attorneys and, often but not always, statements from experts. Experts may testify to any number of things, including country cultural and political conditions, physical torture and mental abuse. I serve as a country cultural and political conditions expert. As such, I review the applicant's case, write a report about the case in relation to the political conditions of the country where the political persecution is claimed and then testify during the applicant's hearing either in person or over the phone. This is work that I wish didn't exist. The conditions that create the need for political asylum should not exist, and yet, they do. And so, five months into the pandemic, I continue to receive new requests for expert testimony. The pandemic has not stopped people's efforts to escape violence and even death. Instead, the pandemic now coexists with fears elsewhere and otherwise.

A month ago, I wrote two asylum reports back to back. One was the longest report I've ever written, and that is out of three hundred, a number that had me feeling as if I had already heard it all, all the horrific things humans could do to other human beings. I was wrong. It is a story of human suffering that will stay with me forever. It is a case for which we don't even know when the court date will be, as it was ‘de-scheduled’. The day after I wrote that report, I had another one due. It was the shortest report I've ever written. That threw me. How could the longest be followed by the shortest? My job is not to assess degrees of suffering, or to make decisions on the awarding of asylum. My job is to assess whether the applicant's claims fit conditions in the country as I know them. I provide the information and the context that helps a judge understand an applicant's claims. As I practice it, expert testimony relies on ethnographic knowing.

Understanding an individual's story and bringing it to life for an audience unfamiliar with the cultural context is something anthropologists do all the time. We do it in writing. We do it in the classroom. And some of us do it in the courtroom. Ethnography requires deep knowledge across topics: religion, kinship, economy, politics, social organisation, environmental conditions and so on. Nothing is outside our purview. If ethnography is a form of theoretical storytelling (McGranahan 2020), then expert witnessing is an applied, non-academic example of that. The ethnographic witness speaks truth to power in court, and does so by giving context to stories so that they make sense across cultural, legal and political divides. This is not always welcome in court, especially by the government attorney. Before each court session, I must be accepted and then sworn in as an expert. Sometimes the government attorney challenge my credentials, and we then go through the voir dire process where I am questioned about my qualifications as an expert for this case. If I am accepted as an expert, the case proceeds. I only take cases in which I genuinely qualify as an expert per US immigration court standards, and thus have always been recognised as an expert. In one case, the government attorney was not happy about this – as having an expert greatly increases the applicant's chances of receiving asylum – and continued to refer to me as ‘the so-called expert’ throughout the case. At one point in the voir dire, this attorney asked me, ‘Do you consider yourself an activist?’ – uttering the word activist with disdain. I replied that I thought all teachers were activists, and the hearing continued.

A politics of anger

The ethnographic is always political. The inverse is not true. The political is not always ethnographic. Ethnography is the stuff of lives, of people's actual experiences in the world. Politics is sometimes that, and sometimes not. Sometimes politics is abstract and disconnected from life as actually lived. Yet even the abstract, and of course the cerebral, have an affect to them. Anger, writes philosopher Simon Critchley, is ‘the first political emotion’. Anger often ‘moves the subject to action’ and thus is a grounds for politics (2007: 130). This may be so. Anger is certainly involved in politics. People come together in anger. They do so to protest, to create, to organise.

Right now in the United States, people are angry. They are angry and scared about the pandemic. People are angry at political leaders for ineffective, unethical responses to the pandemic. People are outraged at ongoing police violence and racism. They are outraged at the use of unmarked federal troops against citizen protestors. Anger can bring people together to fight such violence, to fight structural oppression and racism, to listen and learn, and to demand and design change. This anger may be generative, creative, and powerful. Such outrage is a response to anger that is violent and even fatal. This is also the story of political asylum applicants. Their actions are also responses to violent, potentially fatal anger.

Children are sometimes political asylum applicants. This is not something I expected. To serve as an expert witness is not to conduct research, ethnographic or otherwise. It is a form of witness in which some stories are to be told only in the singular setting of the courtroom such as those of the children for whom I testify, and the adults they have now become. There is a type of refusal in this, a refusal to turn everything into research similar to anthropologist Audra Simpson's (2007, 2014) practice of ethnographic refusal as a withholding. Sometimes I am an ethnographer in asylum court, and sometimes I am an ethnographer of asylum court, and these are related but different positions (McGranahan 2012a, 2012b, 2018). Sometimes I testify on behalf of children abused for the political views of their parents, or for those ascribed to them by adults. Even after years of serving as an expert witness, it still astonishes me that sometimes children are political asylum applicants. Other times the applicants are elderly. How can their life's worth of stories fit into the space of the courtroom? How can their vulnerability be seen not just as that of the elderly but as that of a political subject? Anger knows no age, and does not spare those at the beginnings or ends of their life. If anger is the first political emotion, fear must be the second.

War is why I serve as an expert witness. Nepali applicants are fleeing political violence associated with the 1996–2006 civil war between the government and the Maoists. Tibetan applicants are fleeing political violence associated with either the Chinese invasion and colonisation of Tibet in the 1950s or their vulnerable status as undocumented refugees in South Asia. Anger and fear are a deadly combination. Police officers abuse, threaten and torture individuals in their care. Armies and political parties both try to recruit individuals away from competing parties, and often don't take no for an answer. In too many cases, asserting one's political beliefs angers others to the point of violent action including disregard for human life. Individuals who survive abuse and manage to escape usually go into hiding elsewhere in the country. Eventually they realise they can no longer safely hide, and leave the country with the goal of applying for asylum and making a life elsewhere. Here is where hope comes in.

An ethnography of hope

In war, there is anger. People are angry and fearful. In war, there is also grief and commitment and energy. And there is hope. Hope that war will end. Hope that something better will come from that end. Hope, I believe, is the first anthropological emotion (McGranahan 2016). Political emotions secure the ground for power and authority to thrive or perhaps be overthrown. Anger underlies politics, or so Critchley argues. In contrast, anthropological emotions secure a foundation for humankind, and thus for the range of possible human actions, thinking and being. Hope underlies cultural assemblages of things. There is hope that one's way of organising society or reckoning kin or worshipping the gods is right and good. Hope that things will either continue as they are or change for the better. To have hope is to see a future that is positive, in which you, your family and your community can thrive. It is to believe this is so even with years, decades, centuries of oppression or persecution or dehumanisation. It is to believe that the past does not have to be the future. It is to insist that political abuse can be overcome. This is not a simple project.

Political persecution is not a practice of individuals. It belongs instead to the systems and structures that enable it, that permit some people to turn a blind eye and that offer no support or defenses to victims. Political persecution is what asylum applicants have suffered in the past, fear in the future, or both. Acting to end such persecution takes place at multiple levels. Many asylum seekers have tried to seek help in their home countries from fellow activists, government security forces or human rights organisations. When help is not available or effective, individuals flee the country to seek safe haven elsewhere. In the United States, asylum seekers arrive through all sorts of routes – on airplanes with visas, on foot crossing the border without documents, sometimes on a relatively short, straightforward journey, and sometimes on long, exhausting, dangerous journeys led by traffickers. There is no shared means of entry into the US or length of journey for asylum seekers, and that continues with the uncertainty structured into the asylum process itself. In the pandemic, this uncertainty is amplified by the Trump administration's ongoing work to curtail the asylum process.

Hope gives energy to political asylum applicants in a different way than anger does. In the courtroom, trust is important. Trust between the applicant and their attorney. Trust that the court-appointed translator is faithfully rendering one's words into English. Trust in the documents, the papers, the stories, the scars. Trust in the United States as a country of freedom. Trust is a component of hope. But I do not want to suggest that hope is the only emotion in the immigration courtroom. Anger is also there. It might belong to the judge whom one attorney told me we were lucky not to get for a Tibetan case on which we worked together: ‘She’, the attorney told me, ‘has stated publicly that she will never grant asylum to any applicant’. The anger might belong to one of the attorneys, or possibly to the translator. Anthropologist E. Valentine Daniel tells of a Sri Lankan political asylum case in Seattle for which he served as an expert witness. In court, the translator mistranslated the applicant's responses to the judge's question about whether the police had helped him. The applicant responded that the police had not helped him but instead hit and kicked him; the translator translated his answer to the judge as ‘yes’, thus falsely claiming the police had helped rather than harmed the applicant (1996: 180–181). However, if anger may be present, hope always is.

What moves a subject to action? Anger is certainly not the only emotion to do so, but does it even or always move someone to act? In conversation with Critchley about anger as motivation for action, philosopher Alain Badiou demurs, arguing that anger does not create political subjects; small victories do. Victories generate enthusiasm and affirmation, and the feeling of accomplishment rather than injustice. They generate the feeling that ‘power was on the defensive’ (2008: 16). Small victories generate the feeling of hope. Anger might create one sort of political subject; hope creates another.

Witness/pandemic

To witness is to attest to something, to confirm a truth, to give context to a claim. In her book The Vulnerable Observer: Anthropology that Breaks Your Heart, Ruth Behar writes, ‘Anthropology is the most fascinating, bizarre, disturbing, and necessary form of witnessing left to us at the end of the twentieth century’ (1997: 5). Ethnography is cultural anthropology's main way of knowing, and thus of witnessing. Ethnography takes us from a broad concern with humankind to the specific study of actual human experience, of the lived expectations, complexities, contradictions, possibilities and ground of any given cultural group. Two decades into the twenty-first century, Behar's claim remains true. And thus far into the pandemic, at least in the United States, it is still true. Witnessing is necessary, and to make this claim in the context of political asylum is not to deny elements of it that are fascinating, bizarre or disturbing in general and also specifically in these times.

To testify on another's behalf is an exercise in privilege and compassion. As privilege, it is to use one's status and knowledge to serve another. And as compassion it is, in a sense shared loosely by the Hindu and Buddhist individuals for whom I testify, a recognition of suffering and an attempt to alleviate it. Such ethnographic witnessing is, as anthropologist and performance artist Gina Athena Ulysse (2015) puts it, a means of engaging the visceral in the structural so that processes of inequality and dehumanisation can be named and challenged. Witnessing is moral optimism. Moral optimism is armor for uncertainty. And thus, in this pandemic, the need for witnessing continues. Tomorrow, when I finish this essay and send it to the editors, three new political asylum cases await me.

Hope is also a way of knowing. This is one of the insights of anthropologist Hirokazu Miyazaki's (2004) research in Fiji. Hope is thus ‘not an emotional state of positive feeling about the future or religious sense of expectation’ but instead a form of knowledge with different cultural, philosophical and temporal configurations. Writing a political asylum report is testifying to someone's hope in just this way. Serving as an expert witness is testifying to political persecution in a way that might redirect an applicant's future. But that does not mean hope is only for the outcome of the case or for a possible future. Hope is also about knowing what happened, knowing what could have happened and having someone witness each of these. Immigration court is one space in which multiple ways of knowing coexist, often uncomfortably so. As a way of knowing and a way of feeling, hope brings elements of certainty to a process and a time marked by uncertainty.

Writing a political asylum report requires reading and retelling an applicant's story. Not all these stories are factual. Many stray from the script to include details not required by the court or to offer thoughts and hopes about their case. Many applicants write their story in a way that reveals their humanity and not just ‘what happened’ to them. They situate themselves in the world in ways both big and small. One who did this was an elderly applicant on whose case I worked. In their statement, they included the following:

Since coming to the United States, I have marched the street with our national flag with much pride without any fear of getting chased by the police; I have been able to demand answers from Chinese diplomats who visit the United States, regarding violation of human rights in Tibet; I can keep photos of His Holiness the Dalai Lama openly and proclaim my faith in him as loudly as I want, without anyone forcefully shutting my mouth up. In Tibet and Nepal, I never had and will never have these rights; instead I will be subject to arrest, imprisonment and torture for who knows how long. Therefore I request the government of the United States to please kindly consider my application for political asylum and help me achieve my dream of seeing Tibet free one day. I am already very old, but I am confident I will live to that day.

This is hope as anthropological emotion. The COVID-19 pandemic has exacerbated inequalities and in some places, including the US, has provided cover for political persecution and violence. Anger and hope are both on display. The visceral presses on the structural for change. Small victories put power on the defensive. A successful political asylum case is one of those victories. It is a victory of and for humankind, of knowledge as a form of possibility. The political asylum process can take years to unfold. There are cases that began years before the pandemic, and that will continue to make their way through the system after it. But now, as the pandemic rages in the United States and the Trump administration ravages the political asylum system, the cases continue. Claims continue to be made. And so the ethnographic witnessing continues. The work of being in the world together, of being in a better world together, continues. It does so across inequalities and injustice, with recognition of how such work is always imperfect and insufficient, but necessary nonetheless both in the courtroom and outside of it.