Conceptual Considerations for Trainees in Asylum Medicine

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Sofia Ahsanuddin

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ABSTRACT

Abstract

In recent years, the unique role of medical professionals in the asylum adjudication process has been thrown into sharp relief as asylum applications surge, with over one million pending cases backlogged in the U.S. asylum system as of August 2019. Medical evaluations dramatically increase the likelihood of an individual obtaining asylum, with one study estimating that asylum seekers undergoing a medical examination are granted asylum 89 percent of the time compared to 37.5 percent of the time for other asylum seekers nationwide. In this context, clinicians and trainees possessing the requisite diagnostic expertise and training conduct forensic medical evaluations to assess the degree of consistency between an asylum seekers’ claims and evidence of trauma.  Medical trainees play a central role in maintaining objectivity during forensic evaluations and in subsequent medicolegal documentation. Increasing training programs for medical trainees, providing compensation for trainees, and providing protected time to perform forensic evaluations would help the medical community respond to the growing demand for these services. Conceptual considerations for trainees involved in asylum medicine are also discussed.

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The Case

NB: The following case is a fictitious account employed to highlight the kinds of asylum cases in the United States.

Born in Honduras, 17-year-old Mario was raised by his mother along with his eight younger siblings. When he was a child, his father abandoned his family. He grew up speaking lingua Maya Ch’orti’, but learned Spanish in school in order to communicate with those outside his family. At the age of 11, he left school in order to start working as a farmer.

One fateful evening, Mario was tending to his family’s coffee fields when he was suddenly approached by a masked man. In one fell swoop, the man slashed Mario across his face and body. Desperate to save his life, he rolled down a hill to escape his attacker and staggered home. Upon losing consciousness, his mother rushed him to the hospital where he was operated on and hospitalized for several weeks.

In the months following his attack, Mario was haunted by the masked face of his attacker. He would wake up drenched in sweat from repetitive nightmares and hallucinations. Disfigured, he experienced severe limitations in his range of motion, excruciating pain, “crawling” sensations, and numbness where the man had slashed him. He had occasional difficulty chewing, swallowing, and speaking. Gangs regularly patrolled his village and after the first attack, he began to encounter anonymous threats to his life. In a desperate bid for safety and security, Mario decided to migrate north to the United States. Traveling on foot, he crossed the US-Mexico border where he was detained at an immigration detention center in Texas. He now resides in New Jersey and has temporarily found work as a delivery boy. A coworker of his has been helping him get accustomed to life in the United States. Not only has he provided Mario with a place to stay, but he has also offered to help him request asylum.  

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Introduction

Over the past few years, a bona fide humanitarian emergency has been unravelling at the U.S.-Mexico border. While the number of “affirmative” asylum applications decreased from 2017 to 2018, “defensive” asylum applications surged for the fourth consecutive year to 159,473 in 2018, most from citizens of Mexico and the Northern Triangle countries. [1] Last March, The New York Times reported that more than 76,000 migrants crossed the southwest border in February 2019 marking an eleven-year high. [2] As asylum requests rise sharply, U.S. medical trainees and professionals must play a critical role in leveraging their clinical training and diagnostic expertise to expedite review of asylum seekers’ claims. [3,4] Health trainees and professionals possess the requisite knowledge and clinical training to conduct comprehensive forensic medical evaluations that provide valuable insight on the degree of consistency between a client’s narrative and the evidence of physical harm or mistreatment. However, demand for such evaluations far exceeds the number of students and health providers who are prepared to provide these services. [5]

Currently, the U.S. Immigration and Nationality Act (INA) stipulates that asylum seekers must meet the definition of a refugee in order to receive legal protection. [6] According to the 1951 United Nations Convention Relating to the Status of Refugees, a refugee must be able to prove that they either have been persecuted or have legitimate fears of persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group, the last of which is the most elastic and open to interpretation. [7] In 1990, the last criterion concerning belonging to a particular social group was further expanded to include women seeking asylum on the basis of female genital mutilation and domestic abuse in situations where the political authorities either failed to provide adequate protection or prosecute the perpetrators. [8] Until a request for asylum has been accepted, the individual seeking asylum is referred to as an “asylum seeker.”

Additionally, U.S. law distinguishes between three types of asylum seekers. Affirmative asylum seekers request asylum and are not in removal proceedings whereas defensive asylum seekers are those who seek asylum during removal proceedings. [1] These two classes differ from the third class of asylum seekers who enter the United States without proper documentation and are subsequently subject to expedited removal. Individuals who fall under the third category are detained and immediately deported by immigration officials without being provided with legal counsel or presenting their claims to an immigration judge. However, individuals who seek asylum at a U.S. port-of-entry or enter the U.S. without proper documentation can claim that they have a “credible fear” of persecution to a designated Asylum Officer, during which they can be granted a Credible Fear Interview (CFI). If their claims are deemed legitimate, they are then referred to an immigration judge to adjudicate their case. Thus, asylum seekers may only be detained if they have been denied asylum or if they have overstayed their visas.

During the asylum adjudication process, a forensic medical evaluation is often initiated by a referral from an immigration attorney or advocacy organization. [9] A medical evaluation can play a crucial role in persuading the adjudicator that the applicant’s account of persecution is credible by establishing that he or she has physical symptoms or injuries that are consistent with the description of the mistreatment he or she has suffered in his home country. According to Lustig et al., medical evaluations dramatically increase the likelihood of an individual obtaining asylum; asylum seekers undergoing a medical examination are granted asylum 89 percent of the time compared to 37.5 percent of the time for other asylum seekers nationwide. [10] While Lustig et al.’s data is over fifteen years old and more recent data is needed to corroborate or challenge their findings, the importance of forensic evaluations in gathering evidence is nonetheless evident. Those conducting forensic evaluations typically acquaint themselves with the Istanbul Protocol, which is widely regarded as the international standard for documenting evidence of reported allegations of torture, ill treatment, and persecution. [11,12] Established in 1999, the Istanbul Protocol stipulates that clinicians should precisely describe the events of persecution which led to the asylum seeker’s physical findings; document symptoms; discuss the degree of consistency between the applicant’s history of alleged trauma and physical or psychological exam findings; and provide possible medical causes of discrepant history. In addition to providing an overview of their qualifications to conduct such evaluations, medical providers are required to provide written and sometimes verbal testimony in a court setting in concordance with the U.S. Federal Rules of Evidence. [13]

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The Medical Trainee’s Role in Conducting Forensic Evaluations

While medical students do not yet possess the advanced clinical reasoning skills required to draw medical conclusions about their clients, they play a pivotal role in recording medical exam findings and preparing a working draft of the final affidavit submitted by the evaluating physician. [14] As of December 2018, 20 academic medical institutions and 2 nongovernmental organizations in the U.S. provide medical students with asylum medicine training and mentorship to conduct forensic evaluations. [5] In the coming years, the number of academic centers providing these trainings for students and health professionals should be expanded in order to meet the demand for these services, educate the public about the role of health professionals in the asylum adjudication process, and improve the quality of health care for foreign-born patients residing in the United States. Moreover, it is incumbent upon the medical community to provide protected time and modest compensation for trainees and evaluating physicians, most of whom conduct these evaluations on a pro bono basis.

The medical trainee’s role in conducting a forensic evaluation is critical. As objective evaluators, they are not expected to provide medical care to the asylum seeker; rather, they assist qualified physicians with documenting medical exam findings, asking pertinent questions, and recording the client’s responses in the form of a medicolegal report. Medical students are uniquely positioned to help evaluating physicians refine standard practices in exposing mistreatment or persecution and bearing testimony to the client’s account. Both relay their findings to the immigration system guided by the understanding that they are advocates, not for a particular client’s interests or political opinion, but for their findings. Moreover, the trainee provides an astute and scrupulous second opinion to the clinician. Students and clinicians are encouraged to debrief with one another after an encounter with a client to clarify discrepancies and ensure a streamlined, impartial narrative is recorded in the affidavit. Thus, medical students can ensure that a thorough and comprehensive social and medical history is recorded in the affidavit and can help provide medical insight into the claims of the asylum applicant.

Furthermore, medical students can help evaluating physicians establish rapport with the asylum applicant. Both trainees and professionals can work together synergistically to set the tone and environment during a forensic evaluation in order to minimize any discomfort or anxiety the applicant experiences. Students can also help the evaluating physician provide buffer time at the end of an evaluation for the asylum applicant to decompress after recounting potentially re-traumatizing events of abuse. Additionally, the student can help assist with clarifying the intent of the evaluation and address any concerns related to informed consent, confidentiality, and the applicant’s right to refuse any portion of the evaluation. The trainee’s intimate involvement with all aspects of the medical interview and physical examination can assist the evaluating physician with establishing the degree of consistency between the client’s claims and the evidence on hand. Table 1 describes five different conclusions that can be reached in the aftermath of an encounter with a client per the Istanbul Protocol. [11]

In the long term, medical students’ involvement in drafting asylum affidavits can bolster patient care in the United States, a country wherein 1 in 9 foreign-born patients are victims of torture. [15] Notably, medical students conduct this work with the understanding that an absence of physical or psychological findings on exam does not automatically rule out the possibility of mistreatment or torture. Inversely, medical students should not a priori assume that a particular client has experienced trauma. Medical students and health care providers should not undertake this work to prove a “well-founded fear” of persecution, nor to prove that persecution against a particular individual exists. Their role is solely to be forensic experts, gathering conclusions based exclusively on the evidence at hand.

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Table 1. Istanbul Protocol’s Standards for Documenting Degrees of Consistency [5, 11]

Degree of Consistency Description
Diagnostic of The appearance of the trauma could not have been caused in any other way.
Typical of The appearance of the wound is usually found with this trauma, but it could have been due to other causes.
Highly consistent with The appearance of the wound could have been caused by the trauma described by the client and there are few other explanations.
Consistent with The trauma could have occurred as described, but there are non-specific other possible causes.
Not consistent with The trauma could not have occurred by the trauma described.

 

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Conceptual Considerations for Medical Trainees in Asylum Medicine

Maintaining Objectivity in Forensic Evaluations

One ethical consideration that merits discussion is related to maintaining objectivity during the psychiatric portion of the forensic evaluation and the medicolegal report. In the April 2007 issue of Psychiatry, Dr. Charles Morgan III stated that conducting psychological evaluations of asylum seekers raises serious ethical concerns because such work relies exclusively on subjective data and could possibly involve the endorsement of fabrications and misrepresentations for material and legal gain. [16] He also states that assumptions of psychological trauma could constitute “post-hoc ergo propter-hoc” reasoning, a type of logical fallacy that severely undermines the objectivity of evidence-based clinical decision-making. In light of the ongoing debate regarding the nature of subjectivity in psychiatric evaluations, it is ethically and professionally advisable for medical trainees to help conduct psychiatric evaluations insofar as they are advocating for their findings and not for a particular political opinion or client. Since evaluators are working in the service of truth, they are guided by the highest standards for professionalism, discipline expertise, and methodology. Thus, psychiatric assessments should be proffered regardless of whether an asylum applicant’s psychiatric symptoms impede his or her ability to work with an attorney during the asylum process.

Objectivity and advocacy in medicine go hand in hand. Evaluators have a myriad of interviewing techniques in their armamentarium of diagnostics to determine if malingering is present, including but not limited to utilizing open-ended questions, eliciting the patient’s capacity to enjoy recreational activities versus working, and paying close attention to evidence of concentration deficits, paranoia, and avoidance. [17] Indeed, when undertaking a forensic evaluation, medical trainees and physicians leverage their areas of expertise to place a client’s narrative within the broader context of evidence of trauma, thereby prioritizing objective evidence over self-reported data. [18] Maintaining objectivity requires the student and clinician to avoid making a priori conclusions about causal links between reported trauma and observed distress in a client. Likewise, the possibility of a particular client having malingering disorder or factitious disorder imposed on self (formerly referred to as Munchausen Syndrome) should not be a priori excluded from the differential diagnosis.

Preserving objectivity in the evaluation and reporting phases also requires medical trainees carefully review the statements contained in the final medicolegal report. While some attorneys may request modifications to the affidavit, neither the clinician nor the student is legally obliged to make the requested changes. Communication with the attorney prior to, and after, the encounter with the asylum seeker would establish the rationale for the type of clinical evaluation needed, and expectations for the encounter. Stringent adherence to these proposed measures ensures objectivity on the part of the trainee and the evaluating physician, thereby removing one potential factor contributing to disparities in asylum adjudication. [19]

Vicarious Resilience and Compassion Fatigue

A second consideration for trainees involved in asylum medicine concerns the high potential for developing compassion fatigue. There is a growing body of literature discussing the need for academic programs to promote “vicarious resilience” and psychological wellbeing of medical trainees who are not yet even on the wards. [5,20] While working with victims of torture and trauma survivors can be fulfilling and rewarding, it can be strenuous. It can contribute to student burnout and compassion fatigue. Care should be taken to ensure that medical trainees involved with asylum medicine are provided with adequate resources to decompress from potentially traumatizing encounters.

Despite resource and funding constraints, it is incumbent upon training programs at academic medical centers to prioritize hosting seminars and debriefing sessions to equip medical trainees with constructive coping mechanisms. In order to provide material incentives for students who are juggling challenging curriculums, research, and student debt, program directors should consider negotiating protected time and modest monetary compensation for students involved in their programs on campus. Such measures would offer comprehensive, longitudinal training to students involved in asylum medicine and would offer them lifelong skills that can be applied when trainees are taking care of patients in their own practice.

 

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Case Denouement

After undergoing extensive physical therapy, Mario is now able to lift his arms and shoulders without experiencing pain. He continues to be employed by a local restaurant and sends money back home to support his family. With the help of his friend and coworker, he applied for asylum in the United States and after several months, underwent a forensic evaluation. He is awaiting a decision on his case.

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Conclusion

As the number of asylum applications continue to increase in the United States, it is incumbent upon the medical community to mobilize medical trainees to conduct forensic evaluations. Medical trainees play an essential and oft-overlooked role in maintaining objectivity and transparency throughout the forensic evaluation process. Sustaining trainee involvement requires academic medical centers to prioritize trainee mental health, the provision of material incentives, and protected time for students to help conduct evaluations.

Potential issues that merit further discussion include the relative dearth of evidence-based evaluation of forensic exam practices; the larger, systemic issues regarding the inefficiencies of the asylum system; and the need for trainees to balance asylum evaluations with providing care for non-immigrant patients. Resources and people are finite, and it is essential to ascertain how both will be distributed in an equitable fashion in a way that responds to the needs of the patient population residing in the United States. Until the inefficiencies of the U.S. asylum system are addressed, the medical community must mobilize its resources and personnel to help expedite the adjudication process for over one million backlogged asylum cases. [21]

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The authors have disclosed no conflicts of interest.

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Affiliations

Sofia Ahsanuddin, MD Candidate
Department of Medical Education
Icahn School of Medicine at Mount Sinai
New York, NY, USA

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Endnotes

  1. Mossaad and R. Baugh, Refugees and asylees: 2018 (Washington, DC: Department of Homeland Security Office of Immigration Statistics, 2018). Available at https://www.dhs.gov/immigration-statistics/refugees-asylees.
  2. Dickerson, C. Border at ‘Breaking Point’ as More Than 76,000 Unauthorized Migrants Cross in a Month. 2019 March 5. https://www.nytimes.com/2019/03/05/us/border-crossing-increase.html
  3. Katherine C. McKenzie, Jon Bauer, P. Preston Reynolds. Asylum Seekers in a Time of Record Forced Global Displacement: the Role of Physicians. Journal of General Internal Medicine, 2018.
  4. Sharp MB, Milewski AR, Lamneck C, McKenzie K. Evaluating the Impact of Student-run Asylum Clinics in the US from 2016-2018. Health Hum Rights. 2019;21(2):309–323.
  5. Ferdowsian H., McKenzie K., Zeidan A. “Asylum medicine: Standard and best practices,” Health and Human Rights Journal. 2019;21(1):215.
  6. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)(2005). https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1158&num=0&edition=prelim.
  7. Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 14(1); Convention relating to the Status of Refugees, G.A. Res. 429(V) (1950), art. 33(1); Refugee Act of 1980, Public Law 96-212, US Statutes at Large94, pp. 102–117 (1980).
  8. Lobo, Bethany Christa, Women as a Particular Social Group: A Comparative Assessment of Gender Asylum Claims in the United States and United Kingdom (2012). Georgetown Immigration Law Review, Vol. 26, p. 361, 2012. Available at SSRN: https://ssrn.com/abstract=2263350.
  9. Iacopino V, Allden K, Keller A. Examining Asylum Seekers: A Health Professional’s Guide to Medical and Psychological Evaluations of Torture. Boston: Physicians for Human Rights; 2001.
  10. Lustig S. L., Kureshi S., Delucchi K. L., et al. “Asylum grant rates following medical evaluations of maltreatment among political asylum applicants in the United States,” Journal of Immigrant and Minority Health.2008;10:7–15.
  11. United Nations High Commissioner for Refugees. Istanbul Protocol: Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment.Geneva: UNHCR; 2004.
  12. Iacopino V. Medical Evaluations of Asylum Seekers. Virtual Mentor.2004;6(9):401-404.
  13. Cupon LN. Federal Rules of Evidence Update of Rule 502. J Chiropr Med. 2009 Dec;8(4):203.
  14. The Human Rights Initiative at the University at Buffalo. (2018). The value of medical students in support of asylum seekers in the United States. Families, Systems, & Health, 36(2), 230–232.
  15. Crosby SS, Norredam M, Paasche-Orlow MK, Piwowarczyk L, Heeren T, Grodin MA. Prevalence of torture survivors among foreign-born patients presenting to an urban ambulatory care practice. J Gen Intern Med. 2006;21(7):764–768. doi:10.1111/j.1525-1497.2006.00488.x
  16. Morgan C. A. “Psychiatric evaluations of asylum seekers: Is it ethical practice or advocacy?” Psychiatry. 2007;4:26–33.
  17. Ali S, Jabeen S, Alam F. Multimodal approach to identifying malingered posttraumatic stress disorder: a review. Innov Clin Neurosci. 2015;12(1-2):12–20.
  18. Lustig S. L. “Psychiatric evaluations of asylum seekers: It’s both ethical practice and advocacy, and that’s ok!” 2007;4:17–18.
  19. Ranji-Nogales J. Schoenholtz AI, Schrag PG. Refugee Roulette: Disparities in Asylum Adjudication. Stanford Law Review. 2007;60(295):.
  20. Hernandez P, Gangsei D, Engstrom D. Vicarious Resilience: a new concept in work with those who survive trauma. Fam Process. 2007 Jun;46(2):229-41.
  21. TRAC Immigration. Immigration court backlog tool: Pending cases and length of wait by nationality, state, court, and hearing location. Ibid. Available at https://trac.syr.edu/phptools/immigration/court_backlog/.
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