The One-year Filing Deadline For Asylum And Post Traumatic Stress Disorder

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There is a one-year deadline to apply for asylum: the person must apply for it within one year of arriving in the United States. There is an exception, however, if the person has a “disability.” Consider the case of “Maria:” she arrives in the United States with two small children; she quickly gets a job, pays rent and takes good care of her kids. She does this for 24 months, and then applies for asylum. Does she somehow have a “disability,” such that her missing the one-year deadline should be excused? Can this apparently well-functioning person be deemed “disabled”?

YES, say many courts and experts.

If Maria suffered great trauma in her home country, such as being raped and beaten by her partner, she may have had “Post Traumatic Stress Disorder” [PTSD], for the first 22 months of living here. A common symptom of persons with PTSD is that they have “avoidance:” they want to avoid thinking about their trauma. To apply for asylum means to sit down and re-hash the trauma: to discuss it, add details, and endure questions from their lawyer. They know that later they will have to endure more questions from the asylum officer or Immigration Judge. They know this will be very painful. So, they avoid it.

Maria is “disabled” in the area of re-living her trauma. She is not disabled concerning keeping a job, and taking care of her kids. Working and childcare do not require her to think about her past trauma; so in those areas, she is functioning. In fact, she knows that if she keeps herself very busy and is industrious in those areas, she will be too tired for anything else. In other words, she is disabled in one area of her life, but not in others.

ASYLUM LAW

An asylum applicant must apply within one year of her arrival in the United States. INA § 1208(a)(2)(B). However, the applicant is excused from this requirement if there are “extraordinary circumstances.” INA § 1208(a)(2)(D). Such circumstances include a “serious illness or mental or physical disability.” 8 C.F.R. § 1208.4(a)(5)(i)

HOW CAN I OVERCOME THE “COMMON SENSE” NOTION THAT A PERSON WHO IS ABLE TO KEEP A JOB AND TAKE CARE OF HER CHILDREN IS NOT DISABLED?

In Ramirez-Matias v. Lynch, 631 Fed. Appx. 339, 343 (6 th Cir. 2015), the applicant missed the one-year deadline, and submitted a report from a social worker opining that the applicant suffered from PTSD. The Court denied her asylum, noting that while her life has been “tragic,” she nonetheless raised children, traveled across the country, and contacted several attorneys. The Court said the applicant must prove two things: 1] she had an illness; and 2] the illness caused her failure to meet the deadline. This applicant failed in her proof.

Same result for another applicant: in Barry v. Holder, 361 Fed. Appx. 268, 269 (2d Cir. 2010). This applicant did show that her PTSD “was related to her failure to timely file;” however, she did not show that her PTSD “prevented” her from a timely filing.

A COMMON CHARACTERISTIC OF PTSD IS “AVOIDANCE”

“From the look on my patient’s face, I can tell that I am the last person he wants to see.” So begins the article “Avoidance: The Biggest threat to Our PTSD Awareness,” November 11, 2019, by Shaili Jain, M.D. https://www.psychologytoday.com/us/b...ptsd-awareness [last accessed on May 7, 2020]

Dr Jain writes that this patient has “severe avoidance,” a “core symptom of PTSD.”

“Avoidance is an insidious symptom of PTSD,…’Forget it ever happened,’ ‘it does not bear thinking about,’ and ’don’t dwell on the past’ are avoidance tactics that all humans engage in when confronted with stories of unspeakable traumas.” Id. Bottom of Form

In an article published on March 24, 2020, Matthew Tull, PhD commented that victims of PTSD often make “an effort to avoid thoughts, feelings, or conversations about the traumatic event, by actively trying to avoid places or people that remind” them of the traumatic event and by keeping themselves “too busy to have time to think about the traumatic event.”

https://www.verywellmind.com/ptsd-an...idance-2797640 [last accessed on May 4, 2020]

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The Psychology faculty at the University of Rhode Island published an interesting article on January 9, 2020 entitled “Post traumatic stress disorder's relation with positive and negative emotional avoidance: The moderating role of gender.”

https://www.ncbi.nlm.nih.gov/pubmed/31919954 [last accessed on May 6, 2020]

The first sentence of the Abstract states: “Post-traumatic stress disorder (PTSD) is characterized by avoidance of trauma-related emotions.”

The Faculty, citing other experts, noted: “ Emotional avoidance has been shown to play a central role in the development and maintenance of PTSD following traumatic exposure;” and that “Indeed, avoidance of internal experiences (e.g. emotions) ,,, is considered a core feature of PTSD (American Psychiatric Association, 2013)…”

STUART LUSTIG, M.D.

Dr. Lustig, a psychiatry professor, commented upon the commonly held erroneous belief that someone too traumatized to apply for asylum would not be able to function at a relatively high level in other aspects of their daily life, in a declaration filed in immigration court. Https: cgrs.uhastings.edu/our-work-l-r. He explained that PTSD may incapacitate an individual from filing for asylum “while leaving intact their ability to function and survive on a day to day basis.” Id. He further wrote that “PTSD frequently causes people to avoid anything that reminds them of their trauma and rends them unable to participate in activities unrelated to immediate survival, such as the process of seeking asylum.” Id.

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition [DSM-5], published by the American Psychiatric Association in 2013, states that a common characteristic of persons with PTSD is that they want to avoid their earlier trauma. As stated in ¶ C of DSM-5, there is “Persistent avoidance of stimuli associated with traumatic events” as evidenced by “efforts to avoid distressing memories, thoughts or feelings about or closely associated with the traumatic events.”

The U.S. Department of Veterans Affairs has established a National Center for PTSD.

The first page of its website states: “Avoidance is a common reaction to trauma. It is natural to want to avoid thinking about or feeling emotions related to a traumatic event.”

Emotional avoidance is when a person avoids thoughts or feelings about a traumatic event. For example:

· Someone who survived a serious accident may say things like, "Don't go there," or "Don't think about it.”

· Assault survivors might go out of their way to stay away from the scene of their attack or places that remind them of the assault.

https://www.ptsd.va.gov/understand/what/avoidance.asp of [last accessed on May 5, 2020]

Not mentioned by Veterans Affairs is the observation that a victim of trauma very well might not want to talk about, write about, and answer questions about her trauma. That of course is exactly what happens in a lawyer’s office, at the asylum office, and immigration court.

CONCLUSION

If you meet a client who has missed the one-year deadline, do not give up on asylum. If avoidance was real in the client’s life, make sure she describes it, and make sure your expert witness discusses it as well.


About The Author

Ella F. Cleveland, holder of a Ph.D. in Education from Case Western Reserve University, has worked as a schoolteacher and researcher. She is the founder of the Louise Trauma Center LLC.


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