After a decade of horrific abuse by her husband, Ms. A. felt she had no choice but to flee with her children to the United States, where she was greeted with a complex, multi-stage asylum process that required her to prove that her trauma amounted to persecution. In a system in which only a minority of applicants prevail, a forensic medical evaluation helped Ms. A. attain asylum.
Her husband’s punches had led to multiple miscarriages, and his frequent and severe blows to her head and face left her with dizzying headaches and blurred vision. But because her husband was deeply entangled with local law enforcement, Ms. A. fled because she had no legal or societal protection in her country of origin.
While a pro bono legal team from the CUNY School of Law, where one of us (N.S.A.) co-directs the Immigrant and Non-Citizen Rights Clinic, helped her navigate the convoluted U.S. immigration system, a physician specially trained to conduct forensic examinations documented the physical evidence of the abuse she had sustained, that included scarring on her scalp, abdomen, and face. A forensic psychologist described for the immigration judge how haziness in Ms. A.’s recounting of her story was not because she was lying but because the physical trauma had damaged her memory.
U.S. law states that a person’s credible, persuasive, and specific testimony alone is sufficient to justify granting asylum. Yet as we repeatedly see with clients we work with who are seeking asylum, and as a 2008 study had documented, access to a lawyer and a forensically trained clinician significantly improve individuals’ chances of being granted “immigration relief.”
To gauge the effect of such examinations, we led a large, multi-year study with several colleagues to analyze how access to a forensic medical evaluation affected individuals’ chances of prevailing and the factors that correlated with success or failure.
In our analysis of 2,584 individuals who underwent forensic medical evaluations arranged by Physicians for Human Rights between 2008 and 2018, 81% were granted some form of immigration relief. For those who were specifically granted asylum, 90% of individuals who had exams prevailed, more than double the national asylum grant rate of 42% during this same period. Even when controlling for factors including legal representation, individuals who received forensic medical evaluations had far greater success than other similarly situated individuals.
For individuals like Ms. A., the U.S. immigration system is a game of “refugee roulette.” Two individuals with identical claims may see dramatically different results depending on the judge and jurisdiction to which they are assigned. Immigration judges and officers are given wide latitude when deciding whether to grant asylum, and may deny it for a multitude of reasons, including that an individual lacks evidence of trauma — such as hospital records from their home country — or relayed inconsistencies when recounting their trauma.
Adjudicators have come to rely on asylum seekers to furnish hard-to-find evidence above and beyond their own testimonies. Yet most applicants ensnared in the U.S. immigration system did not have the time, resources, or wherewithal to collect their medical or police records before fleeing their countries. Further, most individuals in the immigration system don’t have access to an attorney, much less a forensic medical evaluator. Even Physicians for Human Rights, the largest referral source for pro bono evaluations in the U.S., has resources to arrange only about 700 evaluations per year, a drop in the bucket compared to the tens of thousands of individuals who seek asylum annually. In addition, there are relatively few forensic examiners, since forensic training isn’t part of core medical education or regular medical practice. The vast majority of forensically trained evaluators volunteer their time to conduct these examinations.
By requiring individuals to furnish hard-to-get evidence, the system creates greater disparities in asylum grant rates along race and economic lines. For example, individuals from African countries seeking asylum are disproportionately targeted for deportation. Yet according to our study, they saw the highest positive outcomes in their cases — 90% — once they had access to forensic medical evaluations.
At first glance, this may seem like a positive finding. But it starkly reflects how immigration adjudicators do not find asylum seekers from African countries credible unless they obtain supporting documentation to corroborate their narratives. The immigration system is setting up already marginalized people to fail.
The results of our study reinforce the immediate need to provide a safe and reasonable process for individuals seeking asylum protection in the U.S., one that gives trauma survivors a fighting chance of prevailing without being required to jump through multiple hoops to obtain access to a select group of trained medical evaluators.
Initiatives focused on providing asylum seekers greater access to attorneys are increasing across the nation, offering free, universal, and high-quality legal representation that support individual clients while expanding fairness and efficiency across the system. Similarly, an expanded and regular role for forensic medical evaluators in immigration proceedings would ensure that immigration adjudicators are aware of the significant scientific advances in understanding the nature and consequences of trauma.
With an integrated trauma-informed approach, already burdened judges and applicants would not need to rely on hard-to-get individualized forensic medical evaluations to validate that memory problems or inconsistent testimonies may be symptoms of harm and suffering.
Among the many people who approach U.S. borders after surviving unspeakable trauma, Ms. A. was one of the fortunate ones. She had access to a lawyer and a medical team and was able to avail herself of asylum protections. Instead of being the exception, though, the support she received should be the rule.
Nermeen S. Arastu co-directs the Immigrant and Non-Citizen Rights Clinic at the CUNY School of Law, where she is an associate professor. Holly G. Atkinson is an internal medicine physician, expert medical advisor to Physicians for Human Rights, and affiliate medical professor at the CUNY School of Medicine.
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