Identities on Trial in the United States by Ngin ChorSwang;Yeh Joann;Haines David W.;

Author:Ngin, ChorSwang;Yeh, Joann;Haines, David W.;
Language: eng
Format: epub
ISBN: 9781498574747
Publisher: Lexington Books/Fortress Academic
Published: 2018-08-01T13:20:56+00:00

129Chapter 9

Without Evidence and Without

Witness

When Attorney Goodsell contacted me in 2003 about Mrs. Harianto, we had already successfully completed “proving” the “Chinese race” identity in about a dozen Chinese Indonesian cases. With Mrs. Harianto, there was something else that needed to be addressed besides proving her Chinese Indonesian identity. “Something happened to Mrs. Harianto, but she wouldn’t talk about it.” Mr. Goodsell had informed me, and then he added, “She has also missed the one-year rule. Perhaps you could talk to her.” Applying for asylum protection within one year is crucial. Those who missed the one-year rule have a difficult time obtaining asylum unless their justifications are extraordinary. In helping Mr. Goodsell on the case, my job was then to find that “extraordinary” circumstances that had delayed her asylum application.

Mrs. Harianto, a fifty-two-year-old mother, and her husband, Mr. Harianto, had arrived in the United States on a tourist visa and overstayed after an extension. With expired visas, Mrs. Harianto and her husband were now “out of status” and their presence in the United States was illegal. They lived in constant fear of being arrested and deported. To make matters worse, their failure to apply for asylum within a year after arrival made their chances of getting asylum very slim.

I first met the Hariantos in Mr. Goodsell’s office. Their sadness and desperation still haunts me to this day. Something horrific must have happened. She said she had tried to apply for asylum before, but each time she would withdraw her application at the last minute. Despite the passage of time, the trauma remains vivid and painful. Her reluctance to speak about the incident turned into delays, and those delays resulted in missing the one-year rule.

Based on this, how was I going to help Mrs. Harianto with her asylum application? If I was going to address whatever horrible trauma she had experienced as a woman, I had to keep in mind that the Refugee Convention 130does not specifically mention gender as one of its criteria for asylum protection. Instead, women seeking asylum have applied under a category known as “Membership in a Particular Social Group” (MPSG). Legal scholars have mentioned women forced into marriage, forced to have an abortion, or forced to have “female genital mutilation” being granted asylum under MPSG. Persecution based on sexual orientation comes under the ground of MPSG as well. However, many scholars have also described MPSG as being confusing, unclear, and marginalizing women’s representation in court. Women are unable to speak and their trauma remains hidden.

How do I help Mrs. Harianto so that she qualifies under the grounds of MPSG?

In helping asylum seekers prepare a stronger narrative for submission to court, the unspeakable must be spoken, the unarticulated must be articulated, the hidden must be uncovered, and the silence must be broken to make full sense to the adjudicators.

Unsure of how I would argue that whatever had happened to Mrs. Harianto could come under the Refugee Convention ground of MPSG, I decided to learn first what had kept Mrs.

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