Gender and cultural silences in the political asylum process

Abstract

Individuals claiming persecution on the basis of gender or as sexual minorities have faced many obstacles in the political asylum process including additional burdens of proof of identity and of persecution. Based on our own work with political asylum applicants, on legal reports, and on reports by groups providing assistance to asylum seekers, we review the law and the obstacles and consider the conditions underlying and supporting suspicion of the applicants. We observe how particular narratives are rendered untellable in the interrogation process and how the identities of sexual minorities become either invisible or hypervisible.

Keywords

Gender narrative political asylum sexual minorities suspicion tellability

The political asylum process, designed to afford safe haven to people fleeing atrocities, is rife with inequities, inconsistencies, and what sometimes appear to be kafka-esque absurdities. At its core, it is a bureaucratic endeavor, driven as much by attention to the appearance of process in the face of very complex and ambivalent politics as by humanitarian concern. Gender has been one of the fissures in the process, exposing inequities and producing silences, an odd and painful combination of the hypervisible and the unheard.

We begin by noting that the remedy to cultural silences, erasures, invisibilities, and hypervisbilities is not necessarily to make voices heard or to uncover the mask, veil, or disguised agenda to reveal a truth. We are not asserting that behind the falsehoods we can find a true speaking voice or an unmediated account. Instead, we observe how the political asylum process produces particular kinds of cultural silences, invisibilities, and hypervisibilities; these silences are implicated in the inextricably linked companion discourses to refugees including trafficking, border control, the criminalization of refugees and other immigrants, and the humanitarian response to human rights violations (Morrison and Backers, 2001). In our earlier work, we have addressed inconsistencies in the political asylum hearing system, and we continue to pursue those here, especially in terms of how asylum hearings produce gendered cultural silences (Bohmer and Shuman, 2007b). The cultural silences and the inconsistencies are always connected. At the same time, we note that exposing either of them doesn’t necessarily disrupt the political asylum system. The significant work that activists have done has certainly worked to reconfigure the role of gender in political asylum decisions, but not without cost.

We take the term ‘cultural silences’ from anthropologists Paul Rabinow’s (1977) and Renato Rosaldo’s (1986) discussions of the complex positions of the ethnographic fieldworker. Rabinow describes his efforts to persuade someone to ‘break the conspiracy of silence’ (1977: 127), (about a divisive political period) as ‘a form of symbolic violence … inherent in the structure of fieldwork’ (1977: 130). In Rosaldo’s essay, the term emerges in a remarkably relevant passage, a citation of historian Roy Ladurie’s reference to a report of religious repression in a document from the Spanish Inquisition:
In very rare cases the record does speak of young women who married according to the dictates of their heart. The Register, however, speaks of quite a number of young men who did so. But in the institution of marriage as it then was, the woman was regarded as an object—an object loved or an object beaten, as the case might be. The historian finds himself faced with an area of cultural silence on this subject (Rosaldo, 1986: 82).

Rosaldo points to how both the inquisitor and Ladurie adopt the position of an ‘idealized, neutral, omniscient instrument for collecting information.’ Cultural silence refers to ‘things women fail to tell their inquisitor’ (1986: 82). Rosaldo’s central concern is the role of the ethnographer as complicit in producing cultural silences; the political asylum process produces additional complicities and silences, including prohibitions and limitations on disclosure in particular situations, power imbalances between interrogators and applicants, and other discontinuities including failures of translation and cultural misalignments in how people and their sexualities are positioned as ‘traditional’ in contrast to the ‘modernity’ of the immigration officials.

We are using the term cultural silences as a shorthand for the larger problem of audibility, inaudibility, unspeakability, untellability, tellability, visbility, hypervisbility, and invisibility, but these are not the same; they are the effects of different conditions of production and have different consequences. The conditions of production include the vital questions of who is watching, gazing, listening, seeing, or not seeing. We are not suggesting that a particular situation, experience, or narrative is not tellable in itself, independent of particular situations of telling. Further, we do not use these terms interchangeably; although we cannot be exhaustive in the space of this essay, we endeavor to be as precise as possible, not only for the sake of better scholarship but also because the stakes are high. Decisions about people’s lives depend on what we are generally referring to as cultural silences, situations that we will describe with greater specificity.

The terms visibility, invisibility, hypervisibility, tellability, and untellability have scholarly histories, especially, but not exclusively, in gender and sexuality studies. We cannot rehearse those histories in any depth here other than first to situate our discussion within conversations about the problematic power inequities produced by looking, listening, gazing, telling, hearing, and second, the possibilities and limitations afforded by the indirection of looking and hearing, including looking awry.¹

We use the term “cultural silences” to refer to cultural prohibitions to speaking, for example in response to shame and humiliation and other conditions of tellability (Shuman, 2005) and to other forms of erasure including visibility, audibility, hypervisiblity and intelligibility. These are not equivalent.

In our review of how gender and sexuality are considered in political asylum assessments, we similarly point to the fallacy of the assumed neutral position of immigration officials who do not recognize how their insistence on disclosure can produce cultural silences in the context of inquiries that can resemble inquisitions. These investigations not only do symbolic violence but also can have life and death consequences for the individual applicants. Cases based on gender and sexual violence particularly implicate cultural silences produced as part of cultural practices of shame and humiliation. As we will discuss, shame and humiliation are often the root of what is visible, invisible, or hypervisible; what applicants disclose and how they disclose it are part of culturally imposed rules. Taboos and expectations about gender and sexual practices are culturally specific; the political asylum process encounters these differences with every case of gender violence. Often, the immigration officials introduce their own expectations and assumptions in their assessments of the credibility of the applicants’ reports and of the credibility of the applicants themselves, further creating cultural silences (Millbank, 2009).

Most of the gendered dimensions of political asylum are not articulated in policy but rather are implicit in the hearing processes, especially notable in explanations for denials of asylum. The implicitness of gender is itself a focus of our discussion. As Toni Johnson (2011) observes in her study of political asylum and sexualities, and as we have discussed (Bohmer and Shuman, 2007a), the political asylum process produces cultural silences that play a significant role in creating the appearance of justice by enacting violence on silenced subjects. Political asylum hearings continue to either silence gender or create hypervisibility for gender.

Our research is based on more than a decade of work with people applying for political asylum, first at the Community Refugee Immigration Services offices in Columbus, Ohio and then with refugee aid lawyers and organizations in New England and London. Working with asylum seekers requires scrupulous attention to their safety, so we don’t provide details that could be traced to individuals. Often, we refer to already published cases that describe the situations of the people we worked with. This self-imposed silence is one way to avoid harmful exploitation, but it leaves open our relationship to the institution of asylum, which by now includes the policy makers, the human rights organizations, the asylum seekers, the lawyers and advocates, and the scholars. All of these participate in producing the silences, invisibilities, and visibilities of political asylum (Viswesweran, 2004).

Gender is not a recognized asylum category. Instead, in the past, political asylum policy purported to be gender neutral. The law of asylum is based on the 1951 Convention on the Status of Refugees, currently adopted by 147 countries. Article 1A(2) of the Convention defines a refugee as any person who:
… owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, unwilling to return to it. (UNHCR, 2010: 14)

The impact of this ostensibly gender neutral law is, however, far from gender neutral². Subtle and not so subtle cultural, social and political attitudes and expectations can affect the role that gender plays in asylum claims. Women generally have faced difficulty being considered on their own merit and instead were only able to claim persecution deriving from persecution of their male relatives.

Claims based on gender or sexuality belong to the category of persecution based on ‘membership in a particular social group’ (Binder, 2001; Musalo, 2001). Courts often refuse such claims, arguing that the violence suffered by the applicant is private, for example, rape perpetrated by a member of the applicant’s family, and therefore not qualifying for asylum. For persecution to be the basis of an asylum claim, it has to be either performed by the state, or condoned by it, or the state has to be shown to be unable or unwilling to prevent it. Much of the violence against women takes place in domestic spaces, at the hands of husbands, family members, or in the case of female genital mutilation (FGM), as part of accepted cultural practices, and not only are the victims not protected from this violence, in many cases the state actively condones it.

Until the late 1990s, the asylum process did not recognize situations in which women and sexual minorities were victims of persecution that was condoned by a particular culture or religion and if not condoned, was not prosecuted by the state. (Musalo, 2002–2003: 781–782). The perpetrators of such forms of persecution often are not agents of the state (a factor in many successful asylum claims). Women and sexual minorities who were persecuted because of their gender, rather than because of political actions or associations, were not eligible for asylum. In the revised policies, instead of assessing the motives of the persecutors, policy makers were willing to consider persecution by ‘non-State actors … where the government cannot or will not control these actors’ (Musalo, 2002–2003: 782). In the late 1990s, policy makers considered a ‘bifurcated approach’ (Musalo, 2002–2003, 789) in which the officials were willing to accept the idea that if the state refused to protect women from persecution by individuals, they could qualify. Thus, for the first time, public persecution on the basis of gender, including sexual preference, and some more private dimensions of sexual violence, including domestic abuse, could qualify for political asylum because a state failed to protect women. Gender became an applicable category under the category ‘particular social group,’ often a controversial category requiring applicants to prove both that the group is clearly defined and that the persecutors have targeted the individual specifically as a member of that group, and that membership or identity is immutable (Bennett, 1999: 286; Neilsen, 2005: 5).

Individuals persecuted as sexual minorities have faced even more difficulties in the asylum process. In the USA, the Immigration Act of 1917, confirmed in 1952, again in 1979, excluded sexual minorities from immigration because ‘sexual deviation’ was regarded as a disease. This exclusion ended in 1990 (Bennett, 1999: 280) and in 1994, a new policy, known as the [Janet] Reno Directive, permitted people to count sexual minorities as social groups that could be persecuted on those grounds and thus merit asylum. People claiming persecution as sexual minorities have faced several problems, however; first that they didn’t constitute a social group; second, that the persecution they experienced wasn’t persecution; and third, that they were not sufficiently ‘readily identified’ to have a ‘well-founded fear of return.’ The case of Alla Pitcherskaia, a Russian lesbian, was denied because the psychiatric treatment and electric shock ‘therapy’ she was forced to undergo was not considered to be ‘intentional punishment’ (Pitcherskaia v. INS (1997) 118 F 3d 641; see also Bennett, 1999). The first successful applicant basing a case on persecution as a sexual minority was Fidel Toboso-Alfonso who, he said, was given the choice of imprisonment or leaving Cuba on the Muriel boat lift in 1980 (in re Toboso-Alfonso, 1990). He received asylum in 1990; a decision regarded as a precedent for Reno’s in 1994.³

Applicants have to prove both that they were intentionally harmed and generally that they would be subject to further harm upon their return. In all asylum cases, the officials consider the conditions in the home country, and the immigration officials rely in part on official country reports for this information. According to the US Department of State website, ‘The U.S. Department of State submits reports on all countries receiving assistance and all United Nations member states to the U.S. Congress in accordance with the Foreign Assistance Act of 1961 and the Trade Act of 1974’ (US Department of State, n.d.). These reports can include discrimination against and persecution of sexual minorities. For example, the U.S. government country report on Uganda from 2013 included the following under the heading ‘Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity’:
LGBT persons faced discrimination and legal restrictions. Consensual same-sex sexual conduct is illegal, according to a colonial-era law that criminalizes “carnal knowledge of any person against the order of nature” and provides a penalty up to life imprisonment. While authorities did not convict any persons under the law, the government arrested persons for related offenses. Several LGBT persons were charged with engaging in “acts against the order of nature” and indecency. Their cases were pending at year’s end (US Department of State, 2013)

The “colonial-era law” referred to in the report was reaffirmed in the December, 2013 passage by the Ugandan Parliament of a bill authorizing punishment of homosexuality by imprisonment, including life in prison (Warner, 2013). The categories of sexual minorities, gender normativity and deviance are not universal; neither are they entirely local, and as in the case of the Ugandan bill, the politics of what is considered traditional, local, indigenous or modern, imported, and foreign, are part of the politics of discrimination and stigma. For example, the category of intersex is accounted for differently, and intersexed individuals are revered in some communities, reviled in others, and not a recognizable category in still others. In some communities, men who have sex with other men might also be married to and have children with women. In particular, the categories LGBTQI used in the West do not necessarily translate to other cultural contexts. Fatima Moyhuddin uses the term “third gender” to describe, “people around the world who live outside of culturally imposed sexual and gender boundaries” (2001: 388).

Often sexual minority claims hinge on the applicant’s ability to prove that his or her status as a sexual minority was public knowledge (see Hesford and Shuman, this volume). The persecution of those whose sexual orientation becomes public encompasses vastly different scenarios, from the personal declaration known as “coming out” in some communities, to the political declaration made by an activist, to the exposure through suspicion of an unmarried person of marriageable age, to imputed sexual identity, attributed to individuals regardless of their sexual identities. Political asylum claims brought by sexual minorities are often assessed according to some measure of public display, exposure, and/or recognition, and these measures are far from consistent.

Since the early 1990s homosexuality has been recognized as an immutable characteristic of a particular social group and therefore eligible for asylum in the USA The criterion of immutability is one source of contradiction and variation in how asylum claims by sexual minorities have been evaluated. On one hand, the criterion requires applicants to establish that their membership in a social group is based on immutable characteristics. On the other hand, applicants are often expected to comply with performative dimensions of sexual minority identities. In a UK case, a Turkish Cypriot claimed that he was afraid to return to Turkey because he would be persecuted as a “practicing homosexual.” The High Court reasoned that a group could not be a social group if its only common characteristic was concealed (Crawley, 2001: 169). Since that time, the UK has reversed what came to be known as “discretion” decisions, in which sexual minorities’ applications were denied, and individuals were deported to their home countries where, it was assumed, they could act discreetly and avoid further persecution. Sarah Keenan (2012), who examines cases from Britain, Canada, and Australia, points out that all of the key cases in which the discretion argument was overturned involved homosexual men and depend on the individual’s public visibility.

Asylum interrogations requiring applicants to perform their sexuality in accord with the officials’ expectations are particularly problematic. Paragraph 36 of The UNHCR report specifically recommends avoiding such assumptions and expectations:
In the assessment of LGBT claims, stereotypical images of LGBT persons must be avoided, such as expecting a particular “flamboyant” or feminine demeanour in gay men, or “butch” or masculine appearance in lesbian women. Similarly, a person should not automatically be considered heterosexual merely because he or she is, or has been, married, has children, or dresses in conformity with prevailing social codes. Enquiries as to the applicant’s realization and experience of sexual identity rather than a detailed questioning of sexual acts may more accurately assist in assessing the applicant’s credibility. (UNHCR, 2008: 17)

In some cases, applicants’ sexual status is suspected even when they can prove that they were persecuted as sexual minorities. For example, in one recent case, the Board of Immigration Appeals in the USA denied a gay man’s asylum application because he appeared too stereotypically heterosexual (in re Soto Vega, 2004). In the UK recently, gay asylum seekers were ‘forced to produce a sex tape in order to prove their sexuality’ (Bowcott, 2013). Dan Hodges reports, “The refugee charity I worked with had cases where people seeking asylum on grounds of sexuality had been asked by officials, ‘Have you read any Oscar Wilde?’ Those whose applications were submitted after a period of residence in the UK would be questioned about whether they had ever attended Heaven nightclub on Villiers Street. One person was asked, ‘Do you like the music of Kylie Minogue?’ (Hodges, 2014). Many sexual minorities who live in countries where persecution is common, of necessity try to look ‘straight.’ The requirement to ‘look gay’ further defines status as a sexual minority in terms of behavior rather than as an immutable characteristic, which is part of the asylum policy definition of a social group. The UK High Court in the Binbasi case specifically denied asylum for a social group of people whose membership in it is hidden. Expectations of public performances of sexuality are at the same time part of the language of discretion supporting decisions directing individuals to return to their home countries where they can supposedly relocate, become invisible, and ostensibly avoid harm. The question of whether someone can be expected to hide their status has been the subject of some controversy in a number of jurisdictions, with some cases requiring ‘social visibility’ for a claim to succeed, with others recognizing that it is incorrect to punish an applicant for hiding his or her status (see, for example, Justice Posner’s view that such a test ‘makes no sense’: Gatimi v. Holder, 2009). Here, as in other areas of gender persecution, public visibility is complex and involves secrecy, covert social networks, and a limited public profile. Also, cultural gender norms can impose additional requirements that can expose individuals choosing gender non-conformity. In some communities, for example, an unmarried woman is stigmatized and in some cases suspected of being a lesbian; in some communities women are forced to marry. Victoria, a lesbian in Sierra Leone, was forced to marry and was going to be forced to undergo FGM when she escaped (Sharma, with Berry, 2008: 28). The argument that people are safe as long as they remain hidden is, of course, contradictory. The fact that they need to remain hidden is evidence that they are politically targeted for discrimination and persecution as a social group.

The paradigmatic claim of asylum on the basis of sexual orientation is the male political activist targeted for his public (political) activities who then suffers persecution in a public place. In the gay male context, this is a man who engages in public activities, such as attending a gay pride march, or frequenting gay bars, who is then beaten up by the police in a public place. Both the targeted activity and the persecution are public. The further one gets from this paradigm, the harder it is to be successful in an asylum claim. Often, either the activity (e.g. using the internet to meet other gays), or the persecution (being beaten or disowned by one’s family) takes place in private, making the claim more difficult to fit within the framework of asylum law. Sometimes it isn’t easy to fit the claim into either the public or the private sphere. Women are more likely to be further away from the paradigmatic case than men. As a consequence, there are fewer cases of lesbians receiving asylum on the basis of their sexual orientation than there are gay men in both the USA and UK. As with other sorts of gender-based persecution, the harm they suffer is much less likely to take place in public than for their male counterparts. Fara, for example, based her asylum claim on private activities as well as private potential harm. She is from a religious Jordanian family and married at 14. She and her husband later divorced. She came to the USA and has since been involved in a long-term lesbian relationship. She fears that if she is forced to return, she will be persecuted by her family and others for her sexuality. Her case has not yet been decided; it is not a very strong one. Marta’s case is a combination of public and private activity. She is a Brazilian woman who was threatened by the authorities repeatedly because she was lesbian. She had been married to a man at the time. She fled to the USA where she was granted asylum and is now married to a woman in Massachusetts.⁴

In some societies lesbians are particularly vulnerable to violence if their sexuality is known. If a woman’s family finds out, she could be beaten, disowned, or forced into a marriage. In part because of the stigmatization of the status and the general powerlessness of women in such a society, a lesbian is more likely than a gay man to be very closeted. Victoria, described earlier, told her closest friends that she was a lesbian, and rumors spread about her. She says, ‘My lesbian friends did not like what was happening to me but they were in the same position, hiding their own life from their own families’ (Sharma with Berry, 2008: 28). Ironically, the greater her fear of the consequences of discovery, the less likely it is that there will be a public component to her asylum claim. If she knows that the police will support her family in their beatings of her, she is unlikely to go to seek their help, so she can produce no evidence of the lack of support or of harm caused by the authorities, as is the case in some of the gay male claims. The idea that someone can avoid harm by not flaunting their sexual orientation is often not valid for lesbian asylum seekers who are not necessarily engaged in targeted public activities and whose exposure depends on other factors, for example, being unmarried. The opportunities for concealment and exposure are culturally specific, a fact rarely recognized by asylum officials.

The categories of public and private sexuality do not translate across either legal systems or cultures. Even within US culture, as Susan Gal points out, ‘‘public’ and ‘private’ are not particular places, domains, spheres of activity, or even types of interaction … public and private are co-constitutive cultural categories … that are always relative, dependent for part of their referential meaning on the interactional context in which they are used’ (2002: 80).

The system produces visibility, invisibility, and hypervisibility in several ways including: (1) invisibility produced by expectations about how gender violence should be narrated; (2) expectations of visible displays of emotion and other aspects of demeanor as measures of an applicant’s credibility; (3) the production of visibility within the political asylum process and (4) the production of a hypervisible category of particular gendered experiences as exotic and ‘barbaric’ though not necessarily warranting asylum because granting political asylum would “open the floodgates” to too many individuals (see Oxford, 2005: 24); and (5) invisibility produced through dismissals of gendered political practices that, according to the officials, don’t count as sufficiently political. Here we will consider the first three categories.

Visibilities, hypervisibilities, and invisibilities work at multiple levels that do not map onto each other. First, at the level of public and private expectations of concealment and disclosure, we can observe how both knowledge and evidence are produced, and then how knowledge becomes connected to or disconnected from evidence. Second, at the level of social recognition, cultural categories produce visibility for some experiences and not others. Third, at the level of historical global politics, visibilities are driven by hegemonic practices and dominant discourses, some that are named and visible, other that are unstated and sometimes suppressed, and others that have, at a particular time, the semiotic attention of the hypervisible—standing in for other, often unstated discourses. These levels intersect, compete, and conflict, producing a process in which visibilities are never stable. Instead, observing the process of producing visibilities, invisiblities and hypervisibilities points to instabilities and vulnerabilities in the asylum system. In the political asylum system’s rejection of claims based on gender and sexual orientation, the asylum officials believe first, if sexual persecution is not public (sufficiently visible), it does not warrant asylum protection; and second, it might be possible for a person to safely return to the country of persecution and relocate to another area where, if the applicant is discreet (invisible), he or she won’t face further persecution. Many of the denials of asylum claims based on violence against sexual minorities discredit the applicants as insufficiently visible. The hearing officers do not take different cultural performances of sexuality into account. Political asylum discourses on sexual minorities operate as part of historical and cultural discourses on sexuality, including in part the legacies of colonial attitudes toward sexuality. These legacies continue in contemporary policies supporting persecution of sexual minorities, including the idea, for example in Uganda, that gay and lesbian practices are imported western categories.

Invisibility produced by expectations about how gender and sexual violence should be narrated

Cultural perceptions of normative gendered behavior play an unarticulated role in immigration officials’ assessments of applicants’ narratives. Successful claims conform to the immigration officials’ expectations, and in the case of asylum, officials have expectations not only about the content of the narrative but also about how it is told. This is true in law generally, though it is even clearer in asylum cases because cultural assumptions of what is normal create obstacles to understanding accounts of usually extraordinary circumstances. The asylum hearing is itself a gendered interaction that produces invisibilities (Spijkerboer, 2000). In particular, women may have more difficulty telling their stories, especially about sexual assault. Problems with interpreters are also connected to this reluctance; women are less willing to describe sexual persecution to a male interpreter, or someone who knows her family, especially if they fear that he will reveal their secrets.

A female applicant’s story is evaluated not only on the events she describes but also on its conformity to the officials’ gendered expectations of women’s practices. For example, judgments may be made about whether a mother’s behavior toward her children seemed ‘appropriate’ based on the immigration officials’ cultural assumptions. In some cases judges decided that the behavior of a woman was not credible because she didn’t conform to their expectations about motherhood, for example by leaving her children behind with relatives when she fled. Sometimes the reverse is true and mothers are deemed not credible because they didn’t flee immediately but waited until they could flee with their children (Bohmer and Shuman, 2007a: 157–158). These assumptions produce gendered hypervisibilities, expectations that, when unmet, make an applicant’s claim less credible.

Naima, a Bangladeshi woman says,
If I go back to my country people will tell my son that his Mum was raped, maybe they will tell my children my story. It is a matter of shame in my country. When I came here I thought now I am free, no one will criticize me, nobody will ask me anything, but of course when I gave the interview in the Home Office I had to tell everything … In order to get the right to stay here I have to tell this story over again, telling all the things I want to forget. (Sharma, with Berry, 2008: 41)

Naima did tell her story, but her case was denied. Her rapists told her that the police would never believe her if she reported the rape, and in any case, she knew that being raped would only bring shame to her family. Now, a victim of these silences, she chose to write her story in a collection of stories told by women who were refused asylum in Britain (Sharma, with Berry, 2008: 45). The book, produced by the organization, ‘Women Asylum Seekers Together,’ (WAST) describes its goal as telling the stories that have gone unheard. The organization ‘has given women who were once entirely silenced the resources and courage to speak clearly. As they do so, you can catch glimpses of another world, in which the rights and freedoms that most people take for granted must be fought for every step of the way’ (Sharma, with Berry, 2008: 12).

The WAST publication is one of many efforts to counter the multiple silencing of stories about gender violence. The shame and humiliation surrounding these experiences places them in a different category than some of the other narratives asylum seekers tell, although those too can involve the reluctance to tell humiliating experiences. All trauma narratives carry the further burden of re-traumatizing the teller (Shuman and Bohmer, 2004).

Expectations of visible displays of emotion and other aspects of demeanor as measures of an applicant’s credibility

In asylum hearings, officers rarely acknowledge considering applicants’ demeanor as part of a determination of their credibility. Amanda MacDonald, herself a migration officer, writes, ‘It is extremely rare for a Member [of Migration Review Tribunals] to rely on a person’s demeanor as this may be affected by a number of factors, including cultural differences, the presence of an interpreter and the likely stress caused by the appeal process itself’ (2010: 8). Assessments of demeanor are nonetheless described as relevant to the process by several political asylum scholars (Macklin, 1998; Spijkerboer, 2000). Audrey Macklin, an asylum judge, writes candidly about the problem of demeanor:
Examining demeanour for clues to credibility presupposes that we know what truth telling looks like and that it looks the same on everybody. The stereotype goes something like this: truth tellers look us in the eye, answer the questions put them in a straightforward manner, do not hesitate, show an ‘appropriate’ amount of emotion, and are neither too laconic, or too verbose. Liars do not look us in the eye (out of embarrassment or shame), do not answer the questions put to them (are evasive), say too little (because there is nothing to say—the story is invented), say too much (because they are trying to distract you) and are either too demonstrative (melodramatic), or lacking in affect (betraying the fact that nothing happened). Yet, as we all know (or should know), culture, gender, class, education, trauma, nervousness and simple variation among humans can affect how people express themselves. (Macklin, 1998: 137–138)

Macklin’s candor about and critique of the use of demeanor is rare, especially for an immigration judge. The assessment of demeanor has presented problems for many victims of gender violence in their asylum hearings. Demeanor refers to what is called a ‘soft immutability’ standard in asylum considerations. Joseph Landau writes:
These cases demonstrate a developing jurisprudence of transgender asylum protection based on an asylum seeker’s expression of gendered traits, including a person’s hairstyle, clothing, demeanor, use of makeup, and choice of names. In these cases, the court honors such expression as a true and honest depiction of identity and self-determination, extending protection to litigants because the traits they exhibit are integral to their identities. (2005: 238)

In other words, permitting demeanor as an aspect of identity serves as ‘soft immutability of the identity of sexual minorities in contrast to the fixed characteristics of biologically identifiable features’. Further, Landau observes that the ‘soft immutability’ considerations permit individuals to argue that they have been persecuted on the basis of ‘imputed gay identity,’ that is, that they were perceived to be a sexual minority by others who persecuted them on that basis (2005: 238).

Connie Oxford reports a case in which an immigration supervisor is reported to have said, ‘I don’t think that is the way that a woman who has been raped acts’ (2005: 34). Like other examples of the use of demeanor in gender-based asylum cases, this report points to the problem of ethnocentric gendered assumptions. We want to call attention to the additional problem that demeanor raises in requiring a particular visible performance to corroborate the applicant’s narrative.

Producing visibility within the political asylum process

When asylum officials reject a case, they are not necessarily denying that someone suffered a trauma. They are not denying the fact of violence and loss. Instead, when, for example, they deny a case about rape or domestic violence because the rape or violence was not political and/or because the woman was not persecuted as a member of a targeted social group, they are saying that the catastrophe, the trauma, the violence was part of another realm, such as crime, rather than political persecution. Within the political asylum framework, women, as people seen to occupy ordinary, domestic life, rather than political (public) life, are more likely to be seen as the victims of crime than as subjects of persecution.

Some of the silences in political asylum hearings reflect categories of gendered life that conform to ‘norms of invisibility’ (Millbank, 2005: 120). Cultural silences are produced by the humiliations of publicly disclosing personal stigmatizing traumatic experiences, especially rape, and others are endemic to the hearings as a staging ground for differentiating between legitimate and fraudulent claims.

Political asylum hearings attempt to differentiate between rape as political and rape as a tragic but not political part of ordinary life. The subtext of ordinary vs. extraordinary circumstances creates another area of invisibility/hypervisibility. Asylum officials are willing to recognize that ordinary activities can become politicized. Teaching women to read or promoting anti-government ideas might be ordinary (now) in the USA and UK but not in Afghanistan. As students of trauma know, it could also be the other way around. Catastrophic, traumatic events can become tragically ordinary and increasingly invisible. Recovering from trauma involves a complex relationship with ongoing ordinary life. Many of the people we have worked with experienced the complete and permanent dismantling of their ordinary lives. In those circumstances, when all relations are reconfigured, it becomes difficult to account for the threshold that made circumstances so intolerable that someone decided to flee or that made it possible to flee.

The categories of personal and political underlie the rejection of many gendered claims as insufficiently political. The UK Refugee Women’s Resource Project’s report says: ‘The fact that women oppose repressive social norms that restrict their civil and political freedoms is not interpreted as a political act by the Home Office, although as the RWLG (Gender Guidelines) makes clear these personal acts of defiance are often highly political’ (Refugee Women’s Resource Project Asylum Aid, 2003: 102). Thus, while a number of countries have guidelines about how to deal with women’s asylum claims, they are often not followed in practice.

It is not surprising, then, that many successful asylum cases based on persecution of sexual minorities have been those that were highly publicized; the asylum officials deciding the cases recognize the publicity as contributing to a situation of future harm to the applicant. It adds another ground on which to base the claim, political opinion in addition to membership in a particular social group. The publicity changed the individual’s status from relatively invisible to hypervisible. Rachel Lewis has documented the significant role of activists calling attention to the obstacles faced by sexual minorities in the political asylum process (2010).

Although activists have been successful in some cases in campaigning for cases involving sexual minorities and gender violence, activists and scholars also note that these efforts also have a price (Bennett, 1999). Creating visibility for the struggles faced by these applicants in the asylum process can further demonize the persecutors as backward, conforming to outdated gender norms, thus erasing and making invisible cultural distinctions and the particular contexts (especially colonial and post-colonial contexts) of gender discrimination. In some discourses, queer practices are promoted as inventive and destabilizing in contrast to the traditional cultural practices regarded by the West as stagnant (Mahmood, 2001). The larger category of gender violence strangely combines rape, female genital mutilation, honor killing, and the persecution of sexual minorities (also a generalized category). The creation of the larger category and the consideration of gender violence as a category for political asylum are crucial for changing policy but it also creates strange bedfellows, to say the least, and also potentially conceals the different historical and political conditions of gender persecution. For the most part, the category of gender persecution marks the gendered practice as (1) readily identifiable; (2) a departure from western norms; and (3) deeply embedded in cultural failures to protect the victim. To qualify for political asylum, the applicants have to be willing to present themselves in those terms, as persecuted and not protected because of their sexuality. The process confirms their sexuality as deviant but warranting protection in the West.

Conclusion

Political asylum policy depends on western-centric categories of sexuality, but the problem is not limited to ethnocentrism. Further, political asylum depends on neoliberal premises of rescue and victimization that require applicants to conform to categories that obscure, rather than illuminate their credibility. To be eligible for asylum, applicants must portray themselves as victims of persecution. Some applicants who claim gender persecution find themselves in the compromised position of claiming that the source of persecution is their own culture—in other words, that the particular violence they experience can only be understood if packaged as traditional and cultural. All applicants claim asylum on the grounds that they were not and cannot be protected by their own nations and cultures. For sexual minorities claiming FGM, honor killing, or violence because of their sexual identity (imputed or actual), it is not enough to claim to have experienced violence; they also have to align themselves against the societies that support repressive cultural practices. This is related to, but is not entirely explained by, the problem Gayatri Spivak described, of “white men saving brown women from brown men” (1988: 297). The problem of claiming protection offered by one society from another is endemic to political asylum policy. Political asylum policy inevitably, by definition, separates states that protect their subjects from violence from those that do not. The policy is most unclear when the violence is the kind that occurs everywhere, such as rape. Rape may have different cultural consequences in different places, but it is recognizable as an act of violence across cultural and political difference. Although it purports to be based on universal human rights, political asylum policy is always informed by particular histories and judgments against particular kinds of state violence. It is important to remember that the international treaties on which asylum law is based were written in response to Nazi atrocities, that is the atrocities of the West. A growing body of scholarship discusses what we described as problems of protection in gendered political asylum policy. Connie Oxford describes the problem as ‘a gender regime in asylum practices’ (2005: 18). She considers ‘how protectionism and victimization are rooted in assumptions about gendered harm’ (2005: 19). Drawing on RW Connell’s concept of regimes, Oxford considers gender and political asylum to be a structural problem. Considering political asylum within the lens of queer migration, Eithne Luibhéid points out the ongoing complex relationships between protectors and victims. Not only the political asylum policies but also the NGOs offering assistance work within neoliberal and/or homonormative frameworks:
Gay asylum claims have been taken up by mainstream LGBTQ and human rights organizations in sometimes problematic ways, including to reinforce their claims for civic status and legal protections within liberal, neoliberal, or homonormative frameworks. This process reflects a larger problem about how queers with relative privilege may appropriate queer migrant figures to serve various agendas, without understanding or critically engaging with the politics of contemporary migration. In these cases, queer migrants provide the material ground for dialogue among others, while becoming silenced. Thus, queer migrants disappear “in the very exchange that depends on [them] for its moral weight”. (2008: 180)

Although informed by often unchallenged normativities, alliances across national and cultural boundaries in support of sexual minorities seeking asylum have created greater awareness and have probably contributed to the success of some applications. Additionally, Rachel Lewis has documented the rise of lesbian anti-deportation activism (2013). The good news is that courts are slowly beginning to exhibit changing social attitudes toward gender based claims. For example, some cases of domestic violence cases (known as LR and RA) have been successful after languishing in the bureaucracy for years. In the case of RA, the US government finally acknowledged that a woman seriously abused by her army officer husband was a member of a particular social group, rather than someone whose persecution was private and therefore entitled to asylum. Progress is slow and constrained by the framing of the law itself, but nevertheless noticeable. The most significant advance has been the willingness to grant asylum to people who are not the victims of political violence but who instead have as their only political claim the fact that their state does not protect them from a particular kind of gendered persecution.

The asylum process works as a surveillance mechanism that, under the guise of producing knowledge, creates measures of credibility that are often impossible for applicants to meet. The political asylum process is, above all, a regulatory process designed to identify the difference between fraudulent and legitimate applicants. In other words, the system produces unsuccessful applicants as frauds. Applicants claiming gender and sexual persecution are more likely considered to have insufficient claims, rather than fraudulent claims. The attribution of the label of fraudulence questions whether someone is who he says he is and whether what happened to him really happened to him. The credible performance of persecution gains asylum. The label of insufficiency, more typical of failed gender persecution claims, however, regulates more than credibility and requires a different sort of performance requiring a balance between invisibility and hypervisibility. When applicants reporting cases of gender violence face questions of credibility (proving that they are members of a sexual minority group), they are placed in the difficult situation of conforming to the immigration officials’ expectations in order to be recognizable as a sexual minority.

We have identified several of the ways that this misrecognition operates in the political asylum process, including requiring hypervisible performances of sexual minority status and refusing to understand the conditions in which people live invisibly and under threat of exposure. However, problems of misrecognition are not, in themselves, the whole problem. Instead, the obstacles faced by victims of gender violence are part of the larger problems of protection endemic to the political asylum system.

The policy changes of the 1990s made it possible for individuals to apply for political asylum based on gender persecution. These changes represented a paradigm shift in political asylum policy by permitting cases in which the persecutor is not an agent of the state. Gender persecution involves a gray area regarding questions of a state’s failure to protect individuals, and this may, in part, help to explain the obstacles individuals continue to face in their asylum applications based on gender persecution. In a sense, it is not surprising that the policy makers have resisted opening the doors to claims of gender persecution. Doing so proposes a divide between states that offer and states that fail to offer protection, a divide that easily crumbles. Political asylum depends on distinguishing between states offering safe haven and states that are dangerous. The applicants become recognizable as legitimate asylum seekers within this construction. Gender claims potentially cut across this divide, revealing persecution everywhere, rendering the legitimate asylum seeker indistinguishable from the non-legitimate, not because the latter is fraudulent, but because the persecution is no longer recognizable as political. In Ratna Kapur’s terms, as transnational migrant subjects who experience violence across state boundaries, in both supposedly safe and supposedly dangerous places, the asylum seekers could be seen as undercutting the project of universality that underlies political asylum law (2005: 139). Gender is rendered not invisible but hypervisible in the political asylum system, first because the officials operate with unsubstantiated expectations of how women and sexual minorities should act, for example as typical gays or lesbians or as responsible mothers; second when persecution is equated with exotic if not “barbaric” cultural practices; and third, because gender discrimination and violence are so pervasive that it continually questions the boundary between us and them, a boundary that sustains political asylum at its core.

Footnotes

Notes

Amy Shuman is an ethnographer and narrative scholar who, with Carol Bohmer, has been conducting research on political asylum for more than 10 years. She is Professor of Folklore, English, Women’s Studies and Anthropology at The Ohio State University and a fellow of the Mershon Center for International Security. She is the author of many articles and three books: Storytelling Rights: The Uses of Oral and Written Texts Among Urban Adolescents; Other People’s Stories: Entitlement Claims and the Critique of Empathy; and, with Carol Bohmer, Rejecting Refugees: Political Asylum in the 21st Century.

Carol Bohmer is a lawyer and sociologist who is presently a Visiting Associate Professor in the Government Department at Dartmouth College. She has published articles about asylum, domestic violence, rape and divorce. She published (with Amy Shuman) Rejecting Refugees: Political Asylum in the 21st Century (Routledge, 2007).

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