Let me tell you about some recent events in my office.
We had two cases set for individual hearings this week. Both cases involve noncitizens who have been waiting years for their decisions, both have family members abroad who they hope to bring to the U.S. if their claims are successful, and both have strong cases for asylum.
For the first case, we prepared and submitted evidence earlier in the pandemic, but the case was postponed at the last minute due to Covid. We were hoping that the new date would stick, given that restrictions are easing and the court now has a system to do cases remotely (called Webex). As the date approached, we filed additional evidence and scheduled two practice sessions for the client. We also regularly checked the Immigration Court online portal, which lists our court dates, to be sure the case was still on the docket. (more…)
Due to the pandemic, many Immigration Court hearings now take place via WebEx, which is similar to Zoom. There are certainly disadvantages to presenting an asylum case by video. It’s more difficult to relate to the Immigration Judge (“IJ”), for instance. And it’s not easy to submit additional evidence at the last minute. On the other hand, in the words of John Adams, “Every problem is an opportunity in disguise!” In our case, WebEx presents some interesting new opportunities.
Having now done a couple WebEx hearings, I have been thinking of how to use the new service to my clients’ advantage. Below are some ideas that I have yet to implement, but which could assure victory, even in the most difficult case. If we try any of these strategies in my office, I’ll be sure to let you know how things turn out… (more…)
For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.
So what happens when the Individual Hearing is canceled? (more…)
On September 24, 2021, Attorney General Merrick Garland announced that David Neal would take over as Director of the Executive Office for Immigration Review (“EOIR”), the organization that oversees our nation’s Immigration Courts and the Board of Immigration Appeals (“BIA”).
Director Neal was Chairman of the BIA, from 2009 to 2019, when he was apparently forced out by the Trump Administration. Mr. Neal also served as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge (“IJ”), and Assistant to the Director. Indeed, he comes to the Directorship with probably more and diverse EOIR experience than any prior director. To top it off, he has a Master of Divinity from Harvard University (and of course a JD, but those are a dime a dozen).
The new Director will certainly need to draw on his past experience–and possibly seek divine intervention–as the agency he is now helming is a real mess. Currently, there are more than 1.4 million cases in the Immigration Court backlog. I have not found recent data on the BIA backlog, but in April 2020, it stood at 70,183 cases. To address the court backlog, EOIR is staffing up–from 535 judges to a projected 734 by the end of the current fiscal year (September 30, 2022). We are also seeing an increase in online and training resources for respondents (noncitizens in immigration proceedings) and practitioners.
Even during his short tenure, Director Neal has begun to take some positive steps. Aside from the new resources, EOIR has ended case completion quotas for Immigration Judge and also signaled a willingness to work with the National Association of Immigration Judges (the judges’ union), which the prior Administration had tried to de-certify.
These are encouraging signs, and hopefully we will also start to see improvements related more directly to respondents’ cases in Immigration Court and the BIA. Luckily for David Neal, I am here to offer my own suggestions (and who doesn’t love unsolicited advice?). These are my ten great ideas for EOIR– (more…)
What’s it like to practice immigration law these days?
For a case in Immigration Court, we write the affidavit, gather evidence, get witness statements, research country conditions, organize everything, copy it, and submit copies to the court and to DHS within the 30-day deadline. We then hold practice sessions with the client and witnesses. A few days before the trial date, we check the online system. The case is canceled. There is no new date. There is no explanation.
We file an application for an asylee’s Green Card. The case takes forever. The client moves. We file a change of address and get an online confirmation. Finally, the client receives an online notice: The Green Card has been mailed and delivered. But not to his current address. USCIS has sent the card somewhere else. Maybe to his old address, but who knows? He does not have it, and requests to re-deliver the card have no effect. (more…)
A few months ago, I wrote that what applicants and lawyers need from the Biden Administration is predictability. Unless we know what to expect from “the system” and when to expect it, people cannot properly prepare their cases or have them fairly adjudicated. Unfortunately, what we have been seeing recently is the opposite of predictability–it is chaos, at least at the Executive Office for Immigration Review (EOIR – the agency that oversees our nation’s Immigration Courts). Here, I will offer a few pieces of evidence in support of this proposition–
Exhibit A: The Immigration Court (or lack thereof) in York, PA
The Immigration Court in York, PA is located inside the York County Prison, which houses ICE detainees. After recent negotiations between the feds and the county failed to produce an agreement, ICE announced that all its detainees would be transferred to other facilities by August 12. With immigrant detainees set to leave York, EOIR informed court staff on June 30 that the Immigration Court would close by late July, and that all staff needed to take assignments at other courts (often in distant locations) or find new jobs. Besides being disruptive and demoralizing for EOIR staff (many of whom have been working in York for years, and have their homes and families there), the abrupt decision to close the court has left noncitizen detainees isolated from their families and their lawyers, and will make preparing their cases even more difficult. (more…)
Preparing an asylum case is a bit like building a fortress. You make the walls as strong as you can, re-enforce weak points, and hope for the best. It’s the job of the Asylum Officer, the DHS attorney (the prosecutor), and the Immigration Judge to probe for weaknesses and, where appropriate, break down the defenses. If they succeed, you lose your case. So here’s my theory: An adjudicator who wants to deny asylum can deny asylum. Some cases may be harder to deny than others, but a smart decision-maker can punch holes in even the strongest and most well-prepared asylum case.
In my own practice, I recently lost a case where the Immigration Judge meticulously deconstructed the asylum claim in order to deny relief. This was one of those cases that some IJs would have granted, and others would have denied. It so happens that our IJ has a 93.5% asylum denial rate, and so the odds of success were always pretty slim. But the decision got me thinking about how judges and Asylum Officers decide cases, and about whether I can do more to prevent future losses. (more…)
The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.
When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.
The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”
There are different types of benefits available to people seeking asylum and people who have been granted asylum. Here we will discuss certain “benefits” – such as work permits, travel documents, and Green Cards – available to asylum seekers and asylees, and how these benefits can be improved.(more…)
There are currently over 1.2 million cases pending before our nation’s Immigration Courts (how many of these cases involve asylum, we do not know). The average wait time for a case is 849 days. What has caused this large backlog, and what can be done to alleviate the long waits in Immigration Court?
There are a number of reasons for the Immigration Court backlog. As with the Asylum Office, the basic reason is that there are too many cases and not enough Immigration Judges (“IJs”) and support staff. But a significant aggravating factor is what Judge Schmidt calls “aimless docket reshuffling” or ADR, which he defines as “arbitrarily or maliciously moving cases around without actually deciding them.” In other words, different Administrations have different priorities, and when Administrations change (or change their priorities), cases get moved around in ways that do not result in their completion, but do result in significant delay. The Obama Administration was responsible for its share of ADR, but the Trump Administration–with its decision to make every case a priority–has turned ADR into high art. Other aggravating factors include increased resources for enforcement without a commensurate increase for the Immigration Courts and a significant influx of asylum seekers from Central America that began in about 2012. One last factor is EOIR leadership (EOIR is the Executive Office for Immigration Review – the agency that oversees the Immigration Courts), which under the Trump Administration has been composed of partisan loyalists who lack the competencies needed to run a large organization.
Let’s take a break from the doom and gloom associated with the President’s ongoing effort to subvert our democracy and look at something a bit more cheery–A new edition of the book My Trials: Inside America’s Deportation Factories by Paul Grussendorf. Judge Grussendorf’s 35-year career has spanned the gamut in the asylum law field: Immigration attorney, clinical professor, Immigration Judge, Supervisory Asylum Officer, Refugee Officer. His book, styled a “legal memoir,” discusses his time as an advocate and adjudicator and gives an insider’s perspective on our nation’s very dysfunctional immigration system.
While this book is generally targeted at people in the profession, law students, and policy-makers, it would also be useful for asylum seekers themselves. In many respects, Immigration Judges, DHS attorneys (the “prosecutors” in Immigration Court), and Asylum Officers are an inscrutable bunch. What are they thinking about when they interact with applicants and make decisions? How do they relate to each other? What are their outside interests? Judge Grussendorf’s book shines a light on the world behind the façade, and somehow, seeing government adjudicators as human beings is comforting.
That said, the overall picture painted by Judge Grussendorf ain’t pretty. He lays bare an immigration system that is a mess, where many prosecutors are unyielding and out of control, families are ripped apart for no logical reason (other than arbitrary laws that require it), politicians intervene to deny due process and treat immigrants as tools in a partisan game, and where training for judges and DHS attorneys is completely inadequate. The Judge has particular scorn for those DHS attorneys who do not know the law or care about “doing justice,” but who instead simply seek to deport anyone who comes into their crosshairs.
One aspect of the book that held particular interest for me was Judge Grussendorf’s discussions of cases he denied when he was on the bench. Such cases help illustrate how most deportations do nothing to make our country safer or better. Instead, they result in families being separated and good, hard-working people being ripped from their homes. Our harsh and unforgiving immigration laws often prevent judges–including well-meaning judges like the author–from granting relief even when that is clearly the better outcome. Other times, the applicant simply does not qualify for relief. In such cases, Judge Grussendorf did as most judges do: He denied the case and went on with his daily business. On reflection, it is striking that a judge can order someone deported in the afternoon and then go for a pleasant jog in the evening, but that’s the job, and good Immigration Judges can separate their job from their life.
The new edition of My Trials is timely, in that it has come out when Joe Biden is (hopefully) about to take office. While the Democratic Platform laid out a bold agenda, it is unclear whether a President Biden would be able (given Congressional resistance) or willing (given Mr. Biden’s more cautious nature) to pursue that agenda. Judge Grussendorf weighs in with a number of his own ideas for reform–some will require Congressional action; others will not.
A page from My Trials, chosen completely at random.
One of his proposals that I found interesting was the idea of granting Mexico some type of most favored nation status and essentially legalizing all Mexicans in the United States (except for those with criminal issues). Given that so many Mexican nationals are currently in the Immigration Court system, if this group were legalized, it would go a long way toward relieving the overburdened courts.
Judge Grussendorf also proposes removing asylum cases from the court system and delegating them to “Special Hearing Officers,” which are essentially better trained and better paid Asylum Officers. This would allow asylum cases to be adjudicated in a non-adversarial manner while freeing up the Immigration Courts to deal with other types of removal cases and eliminating the current redundant situation where the same asylum case is heard by both an Asylum Officer and an Immigration Judge.
A final proposal that I’ll mention here is the Judge’s idea to greatly reduce the use of pre-trial detention in immigration cases. This proposal is not unique to Judge Grussendorf. However, his real-world experience adds weight to arguments that the practice is dramatically over-used and illogical, and helps illustrate how devastating incarceration is for the non-citizen and the non-citizen’s family (and on the non-citizen’s ability to prepare for his Immigration Court hearing).
I hope that Judge Grussendorf’s book–and particularly his policy proposals–get some attention as we try to reform our immigration system. It seems like too often in this debate we hear from policy advocates and politicians, but not from people who have worked in the trenches. We need voices like Judge Grussendorf’s as we hopefully enter an era where immigration reform is a possibility.
My Trials sheds needed light on the absurd, cruel, dysfunctional, and unfair American asylum system. We are left with the impression that despite the systematic failures, justice in asylum cases is sometimes accomplished. When that happens, it is because individuals working within the system allow their humanity, decency, and respect for the rule of law to shine through and overcome the institutional barriers designed to prevent qualified applicants from receiving the protection they need and deserve. Judge Grussendorf is to be commended for his book, and for his effort to improve our nation’s asylum system.
In order to win an asylum case, you have to prove that there is a reasonably possibility you will face harm in your home country. To do this, you need evidence. Evidence about any past harm, evidence of threats against you, evidence of country conditions, etc. One piece of evidence that can be helpful is a report from an expert witness. Here, we’ll discuss the different types of expert reports and how they can help your case.
First, let’s briefly examine the difference between a fact witness and an expert witness. A fact witness is someone who knows about some aspect of your case. For example, maybe your cousin saw the police arrest you from a political rally. Your cousin knows about one piece of your story, and she can write a letter explaining what she knows. She is a fact witness. An expert witness usually does not have any first-hand knowledge of your case. Rather, according to the Federal Rules of Evidence, an expert is someone with “with scientific, technical, or other specialized knowledge” who can “assist the trier of fact to understand the evidence or to determine a fact in issue.” For example, if you are a member of a small ethnic group that is persecuted by your home government, you might find a professor who has studied your group and who can write a report explaining how the government treats members of your ethnic group. The professor is an expert witness.
In terms of admitting expert testimony, the Federal Rules of Evidence are not binding in Immigration Court or at the Asylum Office, but they do provide useful guidance. To be admissible under the Federal Rules, expert testimony must meet three criteria: (1) It must be relevant, meaning it will “assist the trier of fact to understand the evidence or to determine a fact in issue;” (2) The expert witness must be “qualified as an expert by knowledge, skill, experience, training, or education;” and (3) The expert’s testimony must be reliable, in that it “is based upon sufficient facts or data… is the product of reliable principles and methods, and [the expert] witness has applied the principles and methods reliably to the facts of the case.” The standard for admitting evidence in immigration proceedings is more liberal: The “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” Nevertheless, by following the guidance from the Federal Rules, you can help ensure that any expert testimony is given maximum credence by the fact finder.
The standard uniform for an expert witness.
Expert testimony is usually submitted in writing, in the form of an expert report. Accompanying the report is the expert’s CV or a statement of qualifications. It is also helpful to list instances where the expert has previously been recognized as an expert witness by other courts. Experts witnesses sometimes come to court to testify (or testify by telephone).
Expert testimony can be used to support different aspects of an asylum claim. Probably the most common expert report we use is a forensic medical or dental exam. In these reports, the doctor or dentist examines an asylum applicant’s injury to determine whether that injury is consistent with the applicant’s description of what happened. For example, we once had a client who was stabbed in the arm by members of the Taliban. He had a large scar running the length of his forearm. Of course, no medical expert can determine whether the injury was caused by the Taliban. But the expert can opine about whether the scar is consistent with a knife wound. Some experts can also discuss the approximate age of a scar based on its appearance. To create a report, the client would normally need to appear for an in-person examination and give a written description of the incident to the doctor. For this reason, we try to complete the client’s affidavit (or at least the relevant portion of the affidavit) before he goes to see the doctor. That way, he has a description of the incident to bring with him to the exam.
A subset of the forensic medical exams is an evaluation of female genital mutilation/cutting (“FGM/C”). Victims of FGM/C are often able to obtain asylum, and such exams are crucial to these cases. The World Health Organization has categorized FGM/C, and it is helpful for the doctor to explain what category the client’s FGM/C fits into.
Another common type of report that we see are mental health evaluations. These are created by psychologists or other mental health professionals to evaluate the psychological harm (such as post traumatic stress disorder) caused by persecution or the threat of persecution. Sometimes, these reports are generated during the course of treatment; other times, the client visits the mental health professional one or two times and obtains an evaluation for purposes of the asylum case. I tend to prefer the reports created by a treating professional, but in many cases, asylum applicants do not have access to health insurance and cannot afford treatment. In such cases, it may be possible to obtain a pro bono evaluation, which the client can use to bolster her asylum claim. We also use these reports to try to expedite asylum cases. For example, if the report indicates that the applicant’s mental health is being harmed by the long wait, we can sometimes convince the Asylum Office or the court to expedite the person’s case.
Country condition experts can also assist with asylum cases. In my own practice, I use such experts only rarely, as most of the information we need can be found on-line in human rights reports or news articles. However, in specialized situations, a country condition expert can be critical. For instance, an expert can help establish that a person belongs to a particular social group by showing that the society in question recognizes that social group as a distinct entity. Another example is where an expert is needed to interpret a foreign law, such as whether an adoption is legally valid.
In short, there are many ways that experts can help bolster an asylum case. A good starting point for identifying experts and utilizing them effectively is the asylum expert handbook created by Professor Deborah M. Weissman and her students at UNC Chapel Hill Law School. Other helpful resources include the expert data base at the Center for Gender & Refugee Studies at UC Hastings Law School and the country condition expert list from the Rights in Exile Programme. Some experts on these lists work pro bono; others charge a fee.
Not all asylum cases need testimony from an expert witness (indeed, most of my own cases do not), but where it is needed, it can make the difference between a denial and a grant.
The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.
Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.
Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.
MCHs are no more efficient today than they were in olden times.
While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–
e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.
An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.
Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.
Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.
All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion.
This article is by Aldis Petriceks of Harvard Medical School, Erin Shortell of Harvard Law School, and Dr. Francis X. Shen, JD, PhD. Executive Director, Massachusetts General Hospital Center for Law, Brain, and Behavior; Instructor in Psychology, Harvard Medical School; Senior Fellow in Law and Applied Neuroscience, Harvard Law School Petrie-Flom Center.
The success of an asylum claim relies, to a large degree, on the perceived credibility of an asylum seeker’s memory. The Real ID Act of 2005 states that “[t]he testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” (emphasis added). Asylum officers and immigration judges are told, in a sense, to act as mind readers, subjectively deciding whether or not to believe the narratives of asylum seekers.
But how do judges and asylum officers assess credibility? Additional evidence, such as physical signs of abuse or country-level evidence of systematic torture, can bolster credibility in this context. But such evidence may not be available, and even if it is, credibility assessments still turn on asylum adjudicators’ subjective perceptions of asylum seekers’ memories.
Introducing your authors: Aldis Petriceks, Erin Shortell, and Francis X. Shen.
Credibility determinations thus often rest on the consistency (or lack thereof) in an asylum seeker’s story. The REAL ID Act provides that “ … a trier of fact may base a credibility determination on … the consistency between the applicant’s or witness’s written and oral statements … , the internal consistency of each such statement, the consistency of such statements with other evidence of record … , and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
Asylum applicants will often recount their stories at multiple points in the legal journey, including immediately upon entry into the U.S.; in a subsequent written affidavit; and before an asylum officer or immigration judge. If inconsistencies or inaccuracies emerge, the asylum adjudicator often infers that the asylum seeker intends to deliberately mislead him or her.
There is, of course, a logic to this inference. If the story changes, one might reasonably infer that the storyteller is purposely crafting a narrative more favorable to a preferred legal outcome.
Intuition is important, but decades of research into the neuroscience of memory suggest that such intuitions need to be carefully examined. Research conclusively shows that memory is not a digital recording of our lives, and thus changes in asylum seekers’ narratives over time may not be due to deliberate deception but rather to the nature of human memory itself.
Autobiographical memories are not accessed as one might re-watch a scene from a movie. Rather, memories are “dynamically reconstructed mental representations,” and they change every time they are retrieved and recounted.
Memory scientists typically talk about three phases of a memory: Encoding (when the sensory systems first register the sights, sounds, smells and more of an event); storage (when that memory gets tucked away in the brain for later use); and retrieval (when the memory is consciously recalled). Context affects each of these stages. Of great relevance to asylum seekers’ credibility is the well-known finding that trauma and stress affect how memories are initially encoded, whether and how they are stored, and how we consciously recall them.
The bottom line for credibility is that inconsistencies in autobiographical recall may not reflect a willful attempt to bend the truth, but rather the biological reality that recalling memories usually involves modification of those memories in ways of which most people are not fully aware.
Do asylum adjudicators take notice of this neuroscience? In theory, they could. The Refugee, Asylum, and International Operations Directorate (“RAIO”) Manual for Officer Training tells officers that it is “[their] job to determine whether those inconsistencies and/or contradictions are due to a lack of credibility or may be explained by other factors.” One of these “other factors” is the basic neurobiology of trauma and memory. But in practice, it is difficult to gauge the extent to which asylum officers abide by this instruction.
What would it mean for asylum adjudicators to better understand the relationship between memory, narrative inconsistency, credibility, and the human brain? To begin, it would entail the realization that many asylum seekers have endured tremendous trauma, and that this trauma often has documented effects on memory. Asylum seekers who have experienced trauma in their home countries, on the way to the U.S., or upon entry into the U.S., are often burdened by these effects. Brain scan research on individuals with PTSD, for instance, finds decreased activity in the brain networks associated with autobiographical memory, and an associated decrease in specific autobiographical recall. Given the prevalence of PTSD among asylum seekers, it is likely that many otherwise credible refugees will fail to describe their journeys, fears, and traumas in a detailed, coherent manner across multiple interviews. This failure, however, does not necessarily indicate a lack of credibility.
Acute stress often interferes with autobiographical memory. People perform more poorly on memory tests after injections of hydrocortisone, a compound which mimics the effects of cortisol on the body. When faced with significant trauma, children often recount memories in a vaguer, less detailed manner, regardless of the presence or extent of primary psychological conditions.
It remains unknown exactly how trauma and memory are related in the brain. Some researchers believe that trauma leads to an over-general mode of autobiographical memory largely because the exclusion of detail might prevent re-traumatization. Others argue that trauma directly alters the activity of certain neurological networks, changing one’s ability to retrieve and recall specific memories. Regardless of the particular theory embraced, however, there is general agreement that people with histories of trauma have more altered capacities to remember specific details of events in their lives, and that those alterations are at least associated with measurable changes in neurological structure, function, and physiology.
So far, this neuroscientific knowledge has not been widely introduced to asylum officers or immigration judges. When these adjudicators determine that an applicant is not credible, “they overwhelmingly rely on inconsistencies within or among the various versions of the applicant’s story.” Can this gap between scientific understanding of memory and legal practice be bridged? At the MGH Center for Law, Brain, and Behavior, we think the answer is yes—with sustained effort and input from multiple disciplines.
Three areas are ripe for exploration. First, attorneys and judges need an improved understanding of how autobiographical memory works. To be sure, memory neuroscience cannot provide an asylum officer or immigration judge with an individualized “credibility detector.” But neuroscience can provide evidence for re-examining default presumptions that tend to equate inconsistency with deliberate falsehood.
Second, scientific articles standing alone are not sufficient to inform legal doctrine and practice. Actionable neuroscience requires the development of materials that can be readily adapted by lawyers to put forth arguments related to neuroscience, memory, trauma, and credibility.
Third, extended dialogue is required to explore both the promise and pitfalls of introducing neuroscience into asylum case law. For instance, might neuroscience memory research allow government lawyers to challenge otherwise consistent recollections? Just as a criminal defense attorney might call a “false memory” expert to aid his or her client’s defense, could similar arguments be made in the asylum context to undercut genuine claims of persecution? These and other concerns must be adequately addressed as part of an on-going law and neuroscience dialogue.
As with any new endeavor, the path for neuroscience and law in asylum cases is not clear. But there is much promise, and we hope there will be much more dialogue in the future.
About the MGH Center for Law, Brain, and Behavior: The Center for Law, Brain, and Behavior works at the vanguard of applied neuroscience, making neuroscience actionable for the legal community in order to ensure just and positive outcomes for all those affected by the law. Though the brain and the law are both complex, our work is quite simple: helping judges, lawyers, case workers, enforcement agents and many other actors across the legal ecosystem determine the right solutions for the right people and cases. We promote and enable the sound application of accurate neuroscience to critical areas of the legal process: criminal trials and sentencing, juvenile justice, elder protection and immigration enforcement and asylum. For more, see clbb.org.
Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.
In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–
In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr, 2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).
in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).
In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr, 2019 U.S. App. LEXIS 21310 (6th Cir. 2019).
Now that he has a copy of his client’s file, David Cleveland is finally able to relax.
More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr, 944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder, 745 F.3d 336 (8th Cir. 2014).
In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.
How can I prevent surprise in Immigration Court?
When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).
Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.
To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov
In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center. A model FOIA request can also be found at the same page.
