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What happens when you are called upon to be an expert witness for an asylum case?

October 8, 2019

(Editor’s Note: Most of this article is adopted from an essay in my book, Sembramos, Comemos, Sembramos: Learning Solidarity on Mayan Time, with a new asylum example at the end.) 

One of the more interesting and frustrating things that I have participating over the past 20 years has been speaking as an expert witness in Asylum cases for Guatemalans. Being an expert on anything seems a bit awkward, but in light of what the government uses as its “sources” I have come to embrace my experience and understanding as more honest than what the State Department says.

Being asked by immigration lawyers to speak to the current situation in Guatemala is one thing, whether or not the judge will allow you to speak in an expert capacity is another. It is a given that the prosecuting attorney for the government will question my credibility, but when judges have done so it has been frustrating. They are quick to point out that I do not have a degree in Latin American studies. I was not aware that having degrees in anything made you an expert. I have been to Guatemala 9 times in the past 13 years and always on trips that were information gathering at a fairly rigorous pace. I have interviewed hundreds of Guatemalans on their personal experiences with human rights abuses. I have written articles on the subject for various publications in the state and have spoken on Guatemala in over 100 different occasions in churches, schools, forums and as a conference presenter. I also try to read current scholarship, current books, articles and reports.

“The US State Department Report for such and such a year says that, even though Guatemala is experiencing a difficult transition to democracy, there is no real evidence that would support an asylum applicants well founded fear of persecution upon return.” This is what the government attorney usually argues. They only rely on the State Department documents, unquestionably a credible source. Granted it has been even more difficult to argue for asylum since the 1996 peace accords were signed between the Guatemalan government and the URNG, but that has primarily meant a cease-fire, more specifically the dismantling of the armed insurgent group. The military has not downgraded its forces, despite that being an accord agreement and they continue to intervene in domestic affairs. Political violence continues to be a problem. Popular movement groups continue to targeted and the murder of Bishop Gerardi the day after he presented the Catholic Church’s report on who was responsible for the violence during the 36-year war, is a clear indication that the military does not want the truth to be known. Gerardi’s murderers were recently found guilty in Guatemalan courts, a huge victory considering the problem of impunity. One of the guilty parties was Col. Lima Estrada was a graduate of the US Army School of the Americas.

I agree that making a case for Guatemalans seeking political asylum is not easy, but the government’s reasoning is equally not substantial. Even during the worst years of the political violence, the Lucas Garcia/Rios Montt years, it was rare for Guatemalans to be granted asylum. The State Department has considered Guatemala a “democracy” since 1954, so for any Guatemalan to claim a well founded fear of persecution would mean to question the political relationship that the US claims it has with this Central American nation.

In addition to the political inequities that exist at these asylum cases there are also other issues that are problematic. Every case I have been involved in has required a translator, since most Guatemalans do not speak English. Quite often the applicant has limited Spanish, so a Mayan translator is required. This raises further complications, in that during any translation it is difficult to have complete accuracy. I have witnessed the judge address the applicant in English, the lawyer address the applicant in Spanish and the translator address the applicant in Q’anjobal. Words and ideas are bound to get lost, hell I don’t claim to understand most of what judges have to say in English let alone through a translator.

One case I remember was an applicant from Huehuetenago who was in fear of returning because of his refusal to participate in the civil patrols during the 80’s and 90’s. (Civil patrols were created during Rios Montt’s dictatorship as a way of using Mayan males as a buffer between the army and the guerillas. (See Persecution By Proxy: The Civil Patrols in Guatemala, Robert F. Kennedy Memorial Center for Human Rights, 1993) This young man spoke Q’anjobal, so a translator based in California was flown in for the case. The translator was from the same part of Huehuetenango and had no problem communicating the judge or the lawyers’ questions.

When the government lawyer was attempting to discredit the applicant I could tell that the translator was becoming quite agitated. For every comment that was dismissing the young Guatemalans’ position I could see that this Q’anjobal translator wanted to jump up and offer his perspective on the matter. I could see him shake his head in dismay at the government’s reasoning for asylum denial.

When all sides were presented we went to the lobby to await the judge’s decision. No sooner were we all out the door, when the translator let out what he had to suppress in the court room. He couldn’t believe that the judge would actually believe the government lawyer, a lawyer who had no particular knowledge of Guatemala and had never visited there. What this man had to say corroborated what the asylum applicant stated were his reasons for well founded fear of persecution. He said my statements and experience were honest and accurate, but then realized that these proceedings were not about the truth. He said quite simply that this case, like many asylum cases was more about politics than about justice.

I remember leaving the courthouse that day feeling like I have on many occasions embarrassed to be a citizen of the US. The lawyer did request an appeal which was granted, giving the Guatemalan man an additional 6 months to work and maybe save money before his eventual deportation. In the end he had resigned himself to this fate, but I could tell by the look on his face that he would do his best to survive. If anything, to survive is what Mayans have done better than most in recent history. I saw in this young Mayan no consuming rage, rather a sense that he would make the best of his situation and embrace it with dignity. Once again I came away from this experience learning a great deal, not just about our so called justice system, but about what it means to struggle in this world and to live with hope.

It’s now the fall of 2019, and I have once again been asked to act as an expert witness for a woman from Guatemala who is seeking asylum. The woman fled Guatemala several years ago, because of increased street violence and because she was the target of street gangs.

In addition, this woman from Guatemala, an woman who is Mayan, from the region of Quetzaltenango, also wants to argue in her asylum case that racism plays a large role in her reason for a well founded fear of persecution if she were to be deported. Racism is definitely a major issue in Guatemala and has been for the past 500 years, since Spain invaded that region. Guatemala continues to be roughly 60-65% Mayan, yet they have very little representation in government. In fact, many scholars argue that Guatemala is a country of racial apartheid, since indigenous people do not get to determine social, economic and government policies.

On the matter of street gangs threatening her life, the US government doesn’t recognize  gang violence as a legitimate reason for to grant asylum. However, the existence of gang violence is directly due to the inability of the government in Guatemala to provide safety to civil society, along with the corruption within the Guatemalan military and the national police.

I will do my best to provide compelling evidence as to why this Guatemalan woman should be allowed to stay in the US, but the reality is that so few Guatemalans have been granted asylum, even during the years of massive government repression.

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