By Ana Clavijo, JHBL Staff Member
Imagine that you were falsely imprisoned and tortured by your own government. Or perhaps you were a victim of physical and emotional abuse because of your gender or gender identity. Or maybe you were forced from your home under the threat of death to you and your family because you do not follow local traditions. You go to your local authorities who do nothing to help– perhaps you cannot even go to the authorities because they are perpetrating the violence. You find you have no other option and decide to flee the country and home you’ve known your entire life to come to the United States, seeking asylum.
After waiting in limbo for years, your day in immigration court has finally come, to determine if you will be granted asylum and allowed to stay in the United States. You are asked questions by your attorney (if you even managed to get one) or the judge, then aggressively cross-examined by the attorney for the government. You are triggered and start reliving the traumas you endured in your home country, which causes you to forget details, overgeneralize your story, and freeze up. Then the judge, who has had no trauma training and most likely has no knowledge of the intricacies of the state of your home country, denies your asylum claim because she doesn’t believe you were being truthful. This is the disturbing picture of one of the many ways asylum seekers are denied asylum due to a lack of a trauma-informed immigration court system.
In order to be granted asylum, the applicant must be a refugee as defined by the Immigration & Nationality Act (INA). They carry the burden of proving that they have suffered or will suffer persecution at the hands of their government – or by a third party that the government is unable or unwilling to control – on account of their race, religion, nationality, political opinion, or membership in a particular social group (part of a social group that shares an immutable characteristic). To prove these elements, asylum seekers offer their own testimony and present documentation, photographs, expert testimony, and even country condition reports to support their claim. The asylum seeker’s testimony proves the most crucial evidence for two reasons First, it is the basis for the fact finder’s determination of credibility – in other words, whether the judge believes that the asylum seeker is being truthful. Second, many asylum seekers do not have access to any other evidence that could support their claim, such as medical records, police reports, or photographs, because the documents were left behind when they fled their home countries or are nonexistent due to poor record keeping systems.
Essentially, the asylum applicant’s ability to testify in court consistently and coherently to their experiences that led them to flee their country will be the main piece of evidence in their case. This means their story must be consistent with any information the Department of Homeland Security (DHS) has on them, from their credible fear interviews (asylum officer ask a series of questions to determine if the person has a credible fear of persecution) to their own asylum applications. Any discrepancy in their testimony in court, no matter how slight, can be used to tarnish their credibility and, in the end, result in the denial of their asylum claim. This has been the result one too many times in immigration court, not because the asylum seeker is lying, but because asylee trauma manifests itself in ways that cause immigration judges, who mostly do not have any trauma related training, to believe that the asylum seeker is being untruthful.
The Real ID Act of 2005 provides that an immigration judge (IJ) can make an adverse credibility finding in three ways. First, the IJ can find discrepancies within the applicant’s testimony. For example, if in part of her testimony, the applicant states that she was attacked by three police officers and then later states that she was attacked by two, the IJ could find her to not be credible. A second way for an IJ to adjudicate an adverse credibility determination is by finding discrepancies between the applicant’s story and any external evidence, such as those between her testimony and her asylum application or credible fear interview. Lastly, such a finding can be made if the IJ has concerns about the way the applicant gives her testimony, such as having a demeanor that would be inconsistent with the story told (for example, showing no emotion when talking about a traumatic event). In Immigration Court there is no jury. The fate of the immigrant lies in the hands of IJs, most of whom have no formal training regarding trauma experienced by refugees to inform their decisions.
Trauma can have long-lasting effects on an individual, including PTSD, anxiety, memory loss, and depression, all of which are factors that can reasonably affect the testimony of a person who has fled their country seeking safety in a new land, particularly when adjusting to a different language and unfamiliar customs. In the context of an asylee’s testimony in immigration court, this trauma can take many forms. The applicant might make mistakes regarding small details, give long-winded answers that lack specificity or coherency, leave glaring gaps in testimony, or behave in a manner that doesn’t appear to match their testimony. . According to The Center for Victims of Torture, trauma can manifest in “[o]vergeneralized memory [which] is sometimes a biological protective mechanism allowing a trauma survivor to avoid recalling specific, painful events.” All these symptoms are further exacerbated under stressful situations such as that found in the adversarial nature of immigration court, particularly for those asylum applicants (over 50%) who are unable to afford an attorney to help guide them through the process.
When you combine the statutory discretion given to IJs, the absence of trauma training, and placing asylum seekers in an authoritative environment that only magnifies and aggravates the symptoms of their trauma, it is clear that asylum seekers entering the courtroom are at an immense disadvantage before their hearing has even begun. Rather than seeking to understand the challenges that trauma presents to asylum seekers’ ability to give “credible” testimony, the legal system uses their trauma as yet another obstacle to obtaining legal status in the United States. While the statute regarding credible determination could and should be amended to include consideration of asylee trauma in making a credible finding, the time it would take to make such a change would still leave asylee applicants without a solution for more just rulings. Therefore, it is imperative that, at the very least, IJs be required to have some sort of asylee trauma training to appropriately adjudicate cases and to better inform their discretionary decisions. Such training should be required for an IJ to start and continue her time on the bench and should educate on the effects of asylee trauma, as well as the social and political conditions of asylee home countries. This training would allow IJs to analyze an asylee’s credibility fairly and make trauma-informed decisions on asylee claims.
Until this trauma-informed system is implemented, asylum applicants will continue to be denied asylum because of the lack of understanding concerning trauma and its manifestations. This is unacceptable, considering that most if not all asylum applicants have suffered trauma through persecution which is the basis of their claim. Consequently, IJs must be trauma-informed in order to properly rule in the interest of justice.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Ana is a full-time 2L student at Suffolk University Law School and is a staff member on the Journal of Health and Biomedical Law. Ana graduated from the University of Massachusetts Boston with a Bachelor of Arts in International Relations and Political Science. Ana interned at De Novo Center for Justice and Healing as part of their immigration unit. Her legal interests include all aspects of immigration law.
Sources
The Center for Victims of Torture, Designing a Trauma-Informed Asylum System in the United States (2021)
Stephen Paskey, Telling Refugee Stories: Trauma, Credibility, and the Adversarial Adjudication of Claims for Asylum, 56 Santa Clara L. Rev. 457 (2016).
8 U.S.C. § 1158(b)(1)(B)
Mental health and forced displacement, WORLD HEALTH ORG. (Aug. 31, 2021), https://www.who.int/news-room/fact-sheets/detail/mental-health-and-forced-displacement.
Kaiser Health News, Many Refugees Dealing With Trauma Face Obstacles to Mental Health Care, U.S. NEWS (Sept. 19, 2022, 6:00 a.m.), https://www.usnews.com/news/health-news/articles/2022-09-19/many-refugees-dealing-with-trauma-face-obstacles-to-mental-health-care.
Nicholas Narbutas, Note, The Ring Of Truth: Demeanor and Due Process In U.S. Asylum Law, 50 COLUM. HUM. RTS. L. REV. 348 (2018).
Access to Counsel, NAT’L IMMIGRANT JUST. CTR., https://immigrantjustice.org/issues/access-counsel#:~:text=Only%2037%20percent%20of%20all,Immigration%20Council%20(AIC)%20study.
Altaf Saadi et al., Associations between memory loss and trauma in US asylum seekers: A retrospective review of medico-legal affidavits, PLOS ONE (Mar. 23, 2021), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0247033.
Keren Zwick, Representing Asylum Seekers – Pro Bono Training, NAT’L IMMIGRANT JUST. CTR. (Oct. 16, 2015), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://immigrantjustice.org/sites/default/files/Sidley%20Asylum%20Training%20Powerpoint.pdf.
Kathy Purnell, Asylum: Legal Foundations, JUST. FOR OUR NEIGHBORS- MICH., chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://miciviced.org/wp-content/uploads/2020/01/Legal-Fundamentals-Asylum-MockTrial-2019.pdf.