The Challenge Of Demonstrating Harm In Asylum Petitions

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Introduction
The following paper outlines strategies and interventions in asylum cases when little or no documentary evidence or eyewitness support is available. This paper will first examine the inherent dilemmas in ascertaining factual evidence in asylum cases and then examine major strategies in the forensic evaluation process.

RECOLLECTING FACTUAL MATERIAL

Factual Dilemma
No one really knows what happened to the client in his country of origin except the client himself. I do not claim to know, the defense attorney does not know, and the adjudicator certainly does not know. Because of this I try to understand the case not so much on a factual basis, but on a perceptual basis because in many asylum cases the only evidence that exists is the perception of the client himself. As such, my forensic narrative reflects the client's particular view informed by clinical expertise. This can be quite disconcerting to the Immigration Judge and government attorney, especially as our perceptions and memories are quite idiosyncratic and flawed, as repeatedly demonstrated by Elizabeth F. Loftus and other respected researchers.

The following are two interesting examples that reflect our idiosyncratic view, and flawed perceptions and memory, even with respect to important matters in our lives.

Two people love each other and marry. Perhaps the most important moment of their life is the few minutes at the altar. However, ask the husband and wife separately about their experience and you will get two different narratives and factual bases. This is because the experiences of the two individuals are different. Certainly there may have been dozens of witnesses, certification by the State of New York, and multiple other forms of evidence supporting the integrity and bona fides of the marriage. Nonetheless, the bride and groom will present their own personal experiences based on their idiosyncratic natures and backgrounds. Yet an outsider who did not attend the ceremony and interviews the bride and groom separately may actually doubt that it took place at all given that each person will provide different facts about their experiences—and even several inconsistencies.

A second example concerns talking to the bride alone who several years later is asked to recount that special moment at the altar. The bride is instructed to tell her story to five different people on five different days of the week. Perhaps on day one she recounts the events of her marriage ceremony to a close friend; the second day she recounts the story to her boss; the third day she recounts the story to her attorney who did the prenuptials, and so on. This woman may be impeccably honest, but she will inevitably provide different narratives given the person to whom she is speaking, her comfort level, the context, the time of day, and several other factors.

As such, we must be realistic when listening to clients who have suffered persecution and/or years of trauma in their country of origin, and appreciate that
we are getting at best an outline of the events from an individual’s perspective that reflects his or her fragile memories and personal vulnerabilities.

Tripping Up the Client
There is considerable concern that set questions and criteria must be standardized to ensure that the client has not fabricated a story. However, a good prosecutor can trip up almost any client and lead the client towards self-contradictory statements. Some prosecutors, ironically, dismiss the client who presents an unshakable story out of hand because the narrative is considered too "prepared" or "staged." Anybody can be tripped up and witnesses will make either contradictory statements or question the veracity of their statements through self-doubt, or harassment. In the example above, there is little doubt that the bride and groom would provide different viewpoints or even contradictory facts, though the objective reality is that the wedding occurred.

Irrationality vs. Meaningful Patterns & Harm
The attempt to find reason in the client’s narrative may itself be unreasonable because persecution is often based on irrational motives that may even be harmful to the persecutor himself. As such, the absence of a pattern does not necessarily negate or undermine the petitioner’s veracity and the subjective listener must set aside his need to find meaningful patterns in testimony. A corollary of the above uncertainties is that people naturally tend to look for patterns or find meaning in things even when none is present. Seminal work by the Nobel prize- winning researcher Daniel Kahneman established that even well educated professionals ultimately work by heuristics (rules of thumb), though this often leads to prejudicial errors, biases, and false assumptions.

This concern is extremely important in cases of persecution where the victim may not experience any meaningful pattern of abuse and the perpetrator may have no need or intention to persecute the individual in any meaningful way, such that patterns do not exist. For this reason, it is not uncommon for asylum seekers to claim uneven patterns of persecution in their country of origin without apparent rhyme or reason. The objective listener rightfully looks for reason with consistent narrative details, but when none is present or not immediately accessible it may be that a simple narrative of the petitioner’s perception of the harm he endured should be taken at face value. Obviously, petitioners with false claims will get through the doors, but it will also ensure that those persons who have experienced persecution will find safety and freedom in the United States.

It is also important to note that the individual will suffer greater psychological harm where no discernible pattern of abuse and / or persecution exists. This is because when abuse occurs in a set pattern it paradoxically provides the victim comfort (and perhaps even a benign sense of control) due to his ability to predict when the next episode of abuse will occur. In contrast, persons who suffer harm without any degree of predictability must contend with terrible uncertainty without any knowledge (or even understanding) of when (or why) the next episode of harm will occur.
Finally, clinical trauma can often have subtle manifestations on the victim and can present in idiosyncratic ways, which may often be uneven, without set patterns, obvious meaning, or even clinically recognizable.

The Clinical Evaluation in the Courtroom Setting
It is essential to understand that the quality of material elicited during a clinical forensic session can almost never be reproduced in the courtroom setting. The clinical setting is one in which the client feels trust and safety, such that personal background and mental health issues are discussed in a generally uncritical manner. In contrast, the courtroom setting is necessarily adversarial, oppositional, hostile, threatening and the professionals in the courtroom do not necessarily have the client’s best interest at heart and at worst may wish the individual harm. As such, the clinical forensic interview can rarely be replicated in the courtroom and the lawyers and judge should not expect a parallel presentation by the client, or even the expert.

Case Example. A client who suffered wide ranging physical, emotional, and sexual harm as a result of female genital mutilation provided a heart wrenching narrative during the evaluation detailing both her experiences in Ghana and also her experiences after arriving in the United States as a teenager at which time she was abused by predatory men. When I met her at court for her individual hearing she thanked me for the opportunity to speak openly about her experiences in the privacy of my office revealing deep feelings of despair and helpless pain, but she felt uncertain if she could provide the same information at the evidentiary hearing because she was frightened of the judge, fearful that people may accidentally walk into the court, she might become forgetful and nervous, or provide contradictory testimony or inadequately relate her experiences.

STRATEGIES FOR EVIDENTIARY SUPPORT

Internal Evidence
Quite often it is the individual’s idiosyncratic perceptions of his experiences that serve as the major area of proof when documentarian evidence and corroborating witnesses are unavailable in asylum cases. Homosexual asylum applicants, for example, may focus on internal anguish due to societal persecution and family oppression because much of the evidence in the case emanates from the internal world of the applicant himself. While internal evidence may be deemed highly subjective it may nonetheless be one of the only supporting bases of the petitioner’s claim and should therefore be used in a strategic way. Internal dynamics are best explicated through a mental health evaluation by someone familiar with psychodynamics (unconscious motivations), family systems theory, and the developmental turmoil that many homosexuals experience in oppressive families or communities. Ultimately, it is the very subjective nature of this evidence that can be quite powerful and reflect the inner persecution that the client has experienced.

Professional Expression Can Replace Self- Expression
Just as clients with legal uncertainties retain legal counsel, so too clients who experience difficulty explaining personal psychosocial issues may consider retaining a mitigation and / or mental health expert to advocate on his behalf. Professional expression can replace personal expression by ensuring that the thoughts, feelings, behaviors, and experiences of the client are expressed in the broadest light possible illuminating the factual underpinnings of the case for the client’s benefit informed by clinical issues. This can be particularly important when the client minimizes or underestimates the value of a particular incident, yet there may be a significant trove of valuable information that can be mined elucidating the individual’s personal and community history.
Once the professional expression is reorganized into a professional report the immigration defense lawyer may then review the document and find areas of factual and emotional information to further bolster the client’s claim, and in a more sympathetic light.

Clients’ Poor Self-Advocacy
Many clients will have had little education, may be functionally illiterate, or may have low intelligence, or other mental health limitations that help explain the reason for the client’s poor self-advocacy. In such cases clients must be permitted to relate their story in a manner consistent with their level of ability and comfort. The simpler the story the more accessible by the listener, and for clients who are disadvantaged through limited education or otherwise this mode of communication will be quite reassuring.

Functioning Over Narrative
It may be useful to look at the individual’s functioning in his country of origin, as a means to gain insight into the client’s daily life. Persecution may come in the form of prohibitions in various arenas, including academic, employment, social, and other community related harms. For example, the individual who is not permitted to attend school or participate in other community activities demonstrates that his activities may have been curtailed due to societal restrictions.
Historically, certain persecuted groups were restricted from entire professions or educational institutions and were forced to find work in defined areas of employment or create their own colleges and hospitals—even in the United States. For example, many homosexual clients I have spoken with could not engage with peers in sports or other athletics fearing for their safety in their country of origin. Some clients have described completely avoiding certain community activities or areas of interest, such as a place of worship, while others have made it clear that particular roadways or alleys could never be used given particular dangers. In general, mental health is often conceptualized as healthy functioning and demonstrating how the client’s functioning is markedly different from others in the community, through restrictions or other self-imposed prohibitions, can yield significant insight for the adjudicator.
Paradoxically, persons who seem function in a healthy manner may also suffer serious mental health problems. For example, it is not unusual for persons who commit suicide to function quite normally in the days before the death attending to both mundane and important matters in their lives, yet bravely cover profound feelings of helpless despair and overwhelming psychological pain. As such, the persecuted individual may live a seemingly normal life in his country of origin and nonetheless experience significant trauma and mental health problems.

Parallel Histories
It is helpful when close family members and friends either from the client’s country of origin or current community can provide personal narratives when the client’s own narrative appears weak or the client is too overwhelmed or unable to speak on his own behalf. In some cases, close family members or friends have had parallel successful petitions granted by other Immigration Judges. This can backfire however when the family member who contributed to the evaluation then refuses to testify.

As a matter of course, I encourage all clients to present parallel histories through friends and family members not only to emotionally support the client, but because the perspectives of these witnesses can provide different insights and factual supports that can significantly strengthen the asylum petitioner’s claim. Sadly, when the petitioner’s claim involves homosexual persecution the client almost inevitably refuses to allow family members or even friends to participate in the evaluation given the personal nature of the issues and the humiliation or shame encountered both in the past and present.

Work Backwards
If the client is uncooperative or otherwise presents a less than clear narrative to the lawyer it may be helpful to first get a psychosocial evaluation, which should provide a broad outline of the client’s background, traumas, life challenges, family, immigration to the United States, and mental health issues. The lawyer can then work from this product to consider how to legally present the petition to immigration services. In fact, some attorneys develop their cases and the client’s affidavit using this strategy alone when the traumas or persecution are of a type that are simply too overwhelming for the client to discuss outside of a clinical setting. It may also be the case that the client requires an hour or so speaking broadly about his life history before trust is established with the mental health expert, such that the client can then relay in more detail the personal aspects of his asylum petition.

Humanize the Client
It is essential to explicate the client’s fears, sadness, depression, loneliness, and deep uncertainties about his future in the context of the persecution, thereby humanizing the client’s experiences as much as possible. Clients in immigration court must often get right into their testimony due to time constraints and this may force the client to abandon the pathos of his experience. Humanizing the client by providing detailed examples of persecution and the idiosyncratic impact will in turn foster sympathy and empathy, as the listener will identify with different aspects of the client’s trauma, and permit a better chance of the case being fully understood by the adjudicator—and ultimately granted.

It is clear that there are some clients who present with more sympathetic narratives, particularly due to their tone of voice and body language, and there are other clients whose physical and emotional presentation is not endearing to the listener. While objectively this should be unimportant in the real world these factors can make the difference an adjudicator grating or denying a case, such that the immigration lawyer should always consider how best to present the client and his testimony. This evaluator personally believes that the best way to determine veracity is to generally ignore the person’s physical presentation in favor of closely following the client’s narrative for internal consistency given the totality of the client’s psychosocial history. Moreover, relying on false clue or signs about lying can have dire consequences, including misplaced confidence about the strengths and weaknesses of the person presenting evidence. (See, http://www.fbi.gov/stats- services/p...-bulletin/june).

Particularize the Client’s Experiences and Perceptions
Client specifics rather than community shared experiences is the rule in immigration practice primarily because Immigration Judges will undoubtedly have heard family planning asylum petitions, for example, many times before. The judge and prosecution will have preconceived notions about the case and the only way to adequately differentiate the client’s case from similar cases is to provide details and examples that individualize the petitioner’s experiences and perceptions of the persecution. It is often assumed that the more details the better, but a cautionary note suggests that repeated telling of the narrative for the purpose of gaining greater detail may also lead to contradictory factual statements that may serve to undermine the case entirely.

Over-Exaggeration/Under-Exaggeration
Client’s may over exaggerate narratives in an effort to bolster a weak claim and under exaggerate a narrative because he fears the truth is simply too terrible to relate or to be believed. Correcting for one or both will make the narrative clearer, particularly as extraneous material tends to denigrate the underlying narrative of the petitioner’s claim.

Cumulative Analysis
Disparate parts of an asylum petition taken in aggregate may result in a winning case even when the total amount of proof is weak. For this reason, the
asylum case should be presented from A to Z without omission. This evaluator has seen cases where multiple examples of persecution or abuse were perhaps met with skepticism, but the narrative taken as a whole yielded a compelling picture that was sufficiently persuasive to have the case granted.

Look at the Criteria of Mental Health Diagnoses
It may be helpful to put aside formal mental-health diagnoses and consider the criteria of the diagnoses themselves. That is, it is much less important to have the client recognize that he has been chronically depressed and much more important to elicit from the client chronic feelings of hopelessness, insomnia, poor appetite, feelings of guilt, worthlessness, and suicidality. This is because all of these are criteria that comprise depression and the fact that the client has these elements is proof of depression itself.

Moreover, many clients routinely deny experiencing depression often because the client is unaware of the clinical definition of depression. In fact, rather than consider the criteria of depression or trauma during the evaluation in a stilted or formulaic manner I consider the client’s history with a clinical eye towards such criteria, which should permit a good understanding of whether or not there has been a clinical history of mental health issues. I often do not have to question the client directly on this. The client is not a clinical expert and may deny a clinical history of depression or trauma while suffering from the disease.

Harm to Others
The criteria for Posttraumatic Stress Disorder require that “the person experienced, witnessed, or was confronted with an event or events that involved
actual or threatened death or serious injury, or a threat to the physical integrity of self or others.” Immigration proceedings tend to focus primarily on the petitioner yet it is no less important to consider the experiences of others who have suffered similar persecution in the petitioner’s country of origin, particularly if the petitioner left his country of origin at a young age or experienced persecution in the context of others. While the petitioner cannot speak for another victim or potential asylee, he can certainly relate what he saw, felt, and thought about the persecution that a close family member or fellow community member suffered.

Interestingly, a person may experience greater trauma witnessing violence than as a victim, perhaps due to the fact that the onlooker is helpless to assist or he feels guilty afterwards that he did not intervene. “Others” may even include persons who experienced trauma not physically near the individual. For example, this evaluator has spoken with asylum petitioners who relate trauma they have seen fellow community members suffer on television and noted that it was just as frightening as what they saw in person. Moreover, for the purposes of memory the two may be indistinguishable.

Threats of Harm (Passive Harm) & Active Harm
“Threatened death or serious injury, or a threat to the physical integrity” of the person may also serve as a basis for the diagnosis of Posttraumatic Stress Disorder. Asylum cases tend to focus on “active harm” such as physical, sexual, emotional, and verbal abuses, and less emphasis is placed on “passive harm,” which may include controlling or manipulative behaviors and those things that induce the victim to feel fear, anxiety, and isolation. Nonetheless, the passive harms, and related threats of harm to the client or others, should be considered just as seriously because the short and long-term effects may be no less personally and clinically significant. Moreover, common-law assault is the “apprehension” of harm, a conceptualization that should be utilized in the context of immigration cases.

Personal Deprivations
Deprivations of necessities must be considered and may include: basic human rights deprivation, legal deprivation, nutritional deprivation, physical deprivation, sensory deprivation, sleep deprivation, social or family deprivation, hygiene deprivation, and deprivation of basic health care needs.

Present the Clinical Case, Not the Legal Testimony
The clinical interview material and the client's testimony in court may be quite different, and to the outsider it may appear that they are unrelated. It may be helpful for the immigration lawyer to present the courtroom testimony in the same manner that the clinical expert interviews the client in the confines of his office. Immigration lawyers may consider taking a course on clinical interviewing skills, as do many lawyers who undertake mediation.
Clinical interviews are pretty much the same regardless of circumstance. Major areas of focus include:
General experiences as a child,
The quality of relationships to all immediate family members,
The health and well-being of immediate family members,
The individual's interaction with his environment in the context of education, socialization, employment, and
If the individual experienced any childhood stressors, traumas, or major challenges.
One strategy is to have the person imagine returning to his family and walk through his home and surrounding neighborhood describing the various sites that he comes across. Another method is to ask the person to describe the one or two best and worst memories from his childhood and adulthood.

Cultural Barriers in Mental Health
A common question concerns why the client who suffers from depression or anxiety did not seek mental health counseling or assistance at an earlier date if at all. (This is also a common question posed by the USCIS in extreme hardship cases). The answer is that mental health counseling and assistance is a particularly Western idea and the large majority of my clients grew up in cultures and countries in which psychotherapy simply did not exist and psychopharmacology was generally unavailable. Moreover, the idea that an individual would openly speak about painful personal issues to a stranger is often anathema to the cultural values of such individuals and a shocking notion, especially as mental health diagnoses are stigmatized. Finally, many immigrants have internal community resources for “healthcare” that are far different from Western- style medicine, yet just as clinically therapeutic.

Overall, the evaluator should be clinically and socially sensitive to cross-cultural issues and nuanced cultural mental health presentations that serve to support the client’s claim or inform the reader about unique cultural aspects of the client’s behavior, thoughts, or feelings.

Lack of Detail
Most cases of trauma that I see concern domestic violence victims and homosexual persecution. Many of these victims suffer hitting, slapping, and similar forms of physical abuse intermittently over many months and years. It is quite difficult for the individual to separate one incident from the other given that the context, reason, circumstance, person, and location are quite similar. The homosexual who suffers ridicule or harassment quite regularly throughout his formative educational years may also have a hard time recalling specific details, and may even collapse many instances into a single narrative.

The only time I am presented with really good specifics occurs when physical spousal abuse, for example, occurs in an unusual manner. That is, the victim may recall one specific instance of being hit across the face because guests were visiting and this caused the victim to suffer public terrible. The traumas that appear most detail-oriented tend to be:
1. Outrageous: an occurrence that is exceptionally out of the ordinary.
2. Qualified: for example qualified by the shame or guilt that the client feels.
3. Impossible to forget: for example, retaining a scar due to violence.

Conclusion
This paper presented major strategies when there is a lack of supporting evidence in asylum cases.


About The Author

Dr. Mark S. Silver is a New York Licensed Clinical Social Worker who has a combined Specialist Bachelor of Arts degree in History and Political Science from the University of Toronto and a Master of Arts degree in Political Science from the University of Western Ontario. He also has completedd a Master of Social Work at the University of Toronto, a post-graduate Certificate Program in Family Therapy at Smith College and a Doctor of Psychology at the Southern California University for Professional Studies. In addition, he holds a Juris Doctor fromt he City University of New York, Queens College and is admitted to practice law in New York. For the past decade, Mark has worked as a consultant for law firms throughout the United States, conducting psychosocial evaluations and writing formal reports in forensic and mitigation immigration and criminal cases.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.