Psychological and Medical Evaluations: Asylum Seekers, Ethics, and the Law

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Jane Cooper

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Introduction

Over the past few months of Spring, 2020, I’ve had the experience of listening to asylum seekers’ stories that span countries and continents. Although the stories are often inspiring and can contain moments of joy, I’ve also borne witness to the deep trauma and harrowing danger they have endured. It’s a strange juxtaposition to sit in a well-appointed Harvard conference room, and listen to stories of a child who was separated for over three months from her parents at the border, or a mother who was raped while traversing from her home country through Mexico to the United States, or a father whose children were threatened with death. When I’ve relayed these experiences to friends in the medical community, I am often met with sympathy, and an interest in contributing skills to the asylum crisis. In fact, concern in the medical community has been evidenced by statements from multiple professional societies, including the American Psychological Association (APA),[1] the American Public Health Association (APHA),[2 the American Medical Association (AMA),3] and American Academy of Pediatrics (AAP). [4] However, despite this general concern there continues to be an imminent, yet unfilled need, for physicians (especially psychiatrists) to assist with psychological and medical evaluations for asylum seekers. In this article, I make a case for the necessary promotion of physician involvement in pro bono evaluation efforts. In doing so, I will address the interactions between asylum seekers and American law, as well as the benefits and drawbacks of evaluation in light of the current American legal situation.

Asylum Seeking and American Law

Asylum is classified in the U.S. as a “legal protection from deportation sought by non-U.S. citizens who enter the U.S., either legally or illegally, asking for refuge based on claims of persecution or fear of persecution in their home country.” [5] Furthermore, it is a right under Article 14 of the Universal Declaration of Human Rights. [6] Successful applications for asylum are based on the following categories: race, religion, nationality, political opinion, and membership in a particular social group (“PSG”). [7^10-12] Membership in a particular social group is defined by the Matter of W-G-R-, 26 I&N (BIA 2014) and Matter of M-E-V-G, 26 I&N (BIA 2014) as a group that is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. [8] In the American context, in which this paper is situated, asylum seekers must prove “demonstrable physical or emotional harm to the asylum seeker.” [5] Asylum can be sought both affirmatively, in which the seeker files their claim autonomously within a year of entry into the United States, and defensively, where the seeker claims asylum in response to detention or impending removal from the country. [9] Importantly, asylum seekers do not have the right to government-appointment council, as immigration courts are civil and not criminal. [10]

Recent legislation and court cases have restricted the grounds for successful asylum cases. In 2005, the United States introduced the Real ID act, which clarified the protected ground (race, religion, nationality, political opinion, PSG) “cannot be ‘incidental, tangential, [or] superficial (…) to another reason for harm (…) nor can it play a “minor role’”. [11] In 2018, Matter of A-B overruled Matter of A-R-C-G, which had set the precedent for recognizing domestic violence as a basis for seeking asylum. The overruling specifically stated that “the asylum statute is not a general hardship statute, [nor is it] some omnibus catch-all for solving every heart-rending situation.” Additionally, it stated that “private criminals are motivated more often by greed or vendettas than by an intent to ‘overcome the protected characteristic’ (referring to the protected ground) of the victim.” [12] This ruling is crucial, as it functions to delegitimize violence by family members or gang members, or so-called “private actors” as a basis for an asylum claim. For Central American asylum seekers, whose numbers have swollen dramatically over the past decade, gang violence is a central concern. [13] El Salvador has a purported active gang member base of 65,000, [14] and both it and Honduras rank among the top five most violent countries in the world. [13] Federal immigration legislation targeting Central and South American migrants include January 2019’s “Remain in Mexico” policy, which returns asylum seekers to Mexican cities during their immigration court proceedings, and created US-funded Mexican detention centers and deportation schemes. [1516,17] These recent changes to asylum legislation can be seen as part of a broader campaign to deter migration to the United States.

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Psychiatric Evaluations

Overview

Psychological and medical evaluations of asylum seekers are written reports regarding an asylum seeker’s history and reasons for seeking asylum. The reports are written by mental health professionals and physicians, and are sent to immigration courts as affidavits to be used as corroborating evidence to an asylum seeker’s story. [7¹²⁸] Providers who write and sign the affidavits may additionally testify in court as an expert witness. [7] To write the report, professionals examine and/or interview asylum seekers in order to provide psychiatric diagnoses and identify signs of abuse, trauma, or torture, including scars, burns, contusions, and fractures. [[7,18] As credibility and evidence are paramount to an asylum seeker’s case, [19] psychological evaluations are increasing in importance in light of the US’s changing immigration laws. Evaluations can cost up to $1500 out-of-pocket for asylum seekers at private practices, making them inaccessible for many. Organizations such as Physicians for Human Rights attempt to counteract this by coordinating hundreds of evaluations each year that are performed on a pro-bono basis, and generally coordinate with pro-bono legal council. [20]

Benefits of Evaluation

In this era of attempts to criminalize asylum seekers and tightened legal protections, psychological and medical evaluations are becoming increasingly critical to immigration cases. Psychological and medical reports can count as the “evidence” required by the Real ID Act. [21] The inclusion of these reports is important, as many asylum seekers are forced to flee without hard evidence of abuse, such as documents or death threats, and experiences of trauma and abuse are widespread. [5] One study of children fleeing violence in Central America found that 76% had one or more major mental health issues that stemmed from trauma and that 78% had experienced direct physical violence. [22] As psychological and medical reports can report on both mental health conditions and physical evidence of abuse, they are particularly beneficial.

Although few studies have assessed the quantitative impact of psychological and medical evaluations on the legal outcomes of asylum cases, an analysis of 746 asylum seekers from 2000-2004 yielded results of an asylum grant rate of 89% with the evaluation, compared to the then national rate of 36%. [23] A subsequent 2006-2010 study that analyzed known outcomes of 806 cases that included medical or psychological evaluations found a 90% grant rate. [7³⁰] These numbers suggest a tremendous quantitative legal benefit to asylum seekers who are able to present medical and psychological affidavits in support of their asylum cases.

Additionally, as safety (via a successful asylum claim) is “the most fundamental requirement for recovery,” the legal and therapeutic benefits of psychological evaluation are fundamentally linked. [21] In fact, some studies have correlated the experience of asylum seekers sharing their stories with an interviewer with a decrease in posttraumatic avoidance (p=0.04), hyperarousal symptoms (p=0.003), and depressive symptoms (p=0.006). [24] Feeling that their trauma is acknowledged is an important factor in the mental health of an asylum seeker, which is highlighted by the Freedom from Torture Organization in the UK, which recommends that asylum seekers be evaluated at the “earliest possible stage.” [24,25]

The nature of a psychiatrist’s or psychologist’s clinical training is especially important in conducting asylum evaluations. Discussing traumatizing experiences is understandably extremely difficult and triggering for many people. For example, torture survivors may recall their torturer trying to make them talk, and may therefore relate that experience to being cross-examined or questioned. [21] Psychiatrists are best positioned to elicit both important information and to provide support to the claimant during the interview. Both this knowledge and the experience of psychological evaluation itself on an asylum seeker can positively impact the court proceeding process. This is especially due to laypersons having generally inadequate knowledge regarding the presentations of various trauma-related diagnosis; one named case saw a judge citing “hesitant, unemotional, and vague” testimony as a reason for finding a young woman to not be credible. [19] Different manifestations of disorders (such as PTSD, for example) can help to explain such actions and behaviours in a courtroom setting, including withdrawing or presenting as detached and unemotional. [26,21] Additionally, the process of the evaluation may empower asylum seekers to testify in court, reduce anxiety, and present his or her story with increased confidence. [21] This is particularly pertinent, as “good character”  is considered an important discretionary factor in an asylum case adjudication. [27]

Debate Over Value

Criticism over the use of psychological evaluations in immigration courts has come from both the literature and popular media. Articles have claimed that “there is significant incentive for secondary gain (i.e., legal status in the US) on the part of asylum applicants,” leading to misrepresentation and the potential for persons “exaggerating or fabricating their symptoms” to gain an advantage. [28] But detecting any potential misrepresentation has been cited as an important part of the interview [29] and is a duty that is often thought to fall on the clinician. Although most agree that mental health professionals should be objective in the process, some question the ability to remain objective, stating that there may be a “strong pull towards advocacy” in cases. [18]

More generally, the admissibility and veracity of expert testimony as holding weight in the courtroom has been debated in several other areas, such as in cases involving rape. Interestingly, such cases can have similar features, such as preconceived notions (by laypeople) regarding how rape victims express their trauma. Clinicians serving as expert witnesses are largely used to increase credibility of the victim and provide clinical explanations for some of their behaviors/ symptom manifestations. [30] Other areas that utilize forensic psychiatry include criminal and civil law, although there have been controversies over the role that the forensic psychiatrist currently plays. Some argue that while forensic psychiatrists’ authority comes from their medical qualifications, they do not act as physicians but as neutral evaluators and should be treated as such. [31]

However, such criticisms of psychological and medical evaluations have received substantial opposition. This includes psychiatrists who regard it as a doctor’s duty to advocate for their patients, and hold that psychiatrist’s specialized knowledge leads them to be “uniquely qualified to serve in this educational role.” [23] Additionally, one psychiatrist, who references his experiences working with veterans and former prisoners of war, concludes that since diagnoses are allowed to support compensation in these situations, then psychiatric evaluations must have the same validity and utilization in immigration court proceedings. [32]

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Professional Responsibility and Ethics

All of this is not to ignore the ways in which providing medical and psychological evaluations contribute to a system that largely questions and distrusts asylum claimants and their narratives. It would be a delusion to assert that providing asylum seekers with medical and psychological evaluations will fix the immigration crisis in the United States, or in any other part of the world. Indeed, evaluations are not as important as legislation in changing the claimants’ outcomes. For example, France saw tightened asylum criteria that led the rate of asylum seekers successfully obtaining refugee status to plummet from 19 out of 20 to 3 out of 20 within two decades, despite an increase in medical evaluations. [33] With the rising trend of asylum restrictions, physician advocates have increasingly found themselves part of the system that ignores and erases the voices of the victims. In this vein, many physicians have argued that providing medical evaluations and not subsequent treatments may “conflict with their primary duty” which is to “make the care of your patient your first concern.” [34]

Although one-time evaluations do not treat asylum seekers’ often complex medical needs, there is validity in arguing that receiving asylum is the best hope for relief, as safety is “the most fundamental requirement for recovery.” [21] A recent German study of children and adolescents seeking asylum found that “asylum applications [who] had been rejected presented significantly more symptoms than [asylum seekers] whose asylum applications had been accepted between assessments,” and that asylum status was additionally a predictor of symptom severity. [35] Indeed, as the best hope for recovery from trauma is obtaining asylum, providing evaluations puts the care of the asylum seeker first. Although it is true that there are many barriers to asylum seekers accessing comprehensive therapeutic care, this may be a separate issue best addressed by advocacy for culturally-sensitive and accessible counselling facilities and clinics. While of crucial importance, these factors should not be used to discredit the importance of refugee status for asylum seekers as a primary goal.

Clinician participation in evaluations can also be seen as helping through a truth-telling lens. Evaluations support due process and provide judges with additional information in evaluating the legitimacy of asylum cases within US law. In conversation with the Honorable Mimi E. Tsankov, in her capacity as union official for the National Association of Immigration Judges (NAIJ), she explained that judges have a duty to provide due process to those appearing in Immigration Court proceedings and are duty-bound to rule based on the totality of the evidence – this may include considering the expert opinions of any psychologist/psychiatrist witnesses. [36]

The help of psychologists, psychiatrists, and physicians is sorely needed. Physicians for Human Rights, one organization that is involved in coordinating and matching asylum seekers with pro bono medical evaluators, currently receives around ~1,200 requests per year but is only able to place around ~700, or 58%. Along with deadline and scope issues, many cases go without evaluation due to the lack of available clinicians, especially in areas of high-need such as New York City. [37]

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Conclusion

Although the asylum debate can be abstract and center around statistics, I would like to end on a more personal note. Recently, I learned that one of the first asylum seekers that I assisted in interviewing was approved for asylum. His elementary school-aged daughter was also approved, whose picture I remember him proudly showing us during the interview. There is no question that many obstacles remain for the family, including access to appropriate mental and physical health services, but a substantial weight has been lifted off his shoulders now that he no longer fears imminent deportation. This is just one case, but for this young family, it is life-changing, and a reminder to conceptualize asylum seekers as individuals, and not simply as statistics.

As the medical community contemplates principles of bioethics and justice, we must ensure that these principles are applied to all persons regardless of nationality or immigration status. Within the current immigration system,  participating in asylum evaluations is a way to assist in the legal pursuit of asylum status, and is an urgently needed contribution for which physicians and other clinicians are uniquely positioned. However, in the future, a more radical reimagining of the asylum system is needed.

Acknowledgement

I would like to thank my mentor, Dr. J. Wesley Boyd, for all of his guidance and support, both of me and of the need for asylum advocacy within medicine and bioethics.

Appendix

Local and national organizations that coordinate pro-bono evaluation services for asylum seekers.

1. Physicians for Human rights. https://phr.org/get-involved/participate/health-professionals/
2. HealthRight International. https://healthright.org/our-work/human-rights-clinic/
3. Medical School Asylum Clinics.

• • https://brownasylumclinic.wixsite.com/bhrac
  • http://columbiahri.org/
  • https://projects.iq.harvard.edu/hmsphr/home
  • https://admin630542.wixsite.com/hribuffalo/clinicians

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