Santa Clara Law Review Volume 56|Number 3 Article 1 6-17-2016 Telling Refugee Stories: Trauma, Credibility and the Adversarial Adjudication of Claims for Asylum Stephen Paskey Follow this and additional works at:http://digitalcommons.law.scu.edu/lawreview Part of theLaw Commons Recommended Citation Stephen Paskey,Telling Refugee Stories: Trauma, Credibility and the Adversarial Adjudication of Claims for Asylum, 56 SantaClaraL. Rev. 457 (2016). Available at: http://digitalcommons.law.scu.edu/lawreview/vol56/iss3/1 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. 01 PASKEY FINAL 5/18/2016 3:49 PM TELLING REFUGEE STORIES: TRAUMA, CREDIBILITY, AND THE ADVERSARIAL ADJUDICATION OF CLAIMS FOR ASYLUM Stephen Paskey* TABLE OF CONTENTS Prelude .................................................................................. 458 Introduction ........................................................................... 460 I. The Adjudication of Credibility in U.S. Claims for Asylum ......................................................................... 464 A. The Asylum Adjudication Process ........................ 464 B. The Reasons Why Applicants Are Found Not Credible ................................................................. 474 II. The Structure of Stories: Narrative, Story, and Discourse ...................................................................... 478 III. The Impact of Trauma on Storytelling ........................... 483 A. The Nature and Symptoms of Trauma ................. 484 B. The Impact of Trauma on a Survivor’s Story ....... 487 C. The Testimony Method of Trauma Therapy ......... 490 IV. The Asylum Adjudication Process, Revisited ................. 492 A. The Challenges Faced By Survivors Who Seek Asylum ................................................................... 493 B. The Impact of a Written Declaration .................... 499 * Lecturer in Law, SUNY Buffalo Law School. This work was made possible by research grants from SUNY Buffalo Law School and the Baldy Center for Law and Social Policy; I’m deeply grateful for their support. Many thanks to the following faculty at SUNY Buffalo Law School for their insightful comments during the writing process: Guyora Binder, Christine Bartholomew, Michael Boucai, Danielle Pelfrey Duryea, Lucinda Finley, James Gardner, Rebecca French Redwood, Rick Su, and John Henry Schlagel. I also received helpful feedback from participants at two scholar’s forums sponsored by the Association of Legal Writing Directors. A special thank you to Kathryn Stanchi, who pressed me to think more clearly about why I wanted to talk about narrative theory; and to my former research assistant, Brendan McCullen, for his tireless work on the research presented in Part II of this Article. Finally, this Article is dedicated to the memory of Prof. Katherine Vaughns, who introduced me to the complexities of U.S. immigration law when I studied at the University of Maryland School of Law. 457 01 PASKEY FINAL 5/18/2016 3:49 PM 458 SANTA CLARA LAW REVIEW [Vol. 56 C. The Challenges of Drafting An Effective Declaration ............................................................ 503 V. Strategies for Reform........................................................ 507 A. The Scope of Reform Proposals ............................. 508 B. The Non-Adversarial Adjudication of Claims for Asylum ................................................................... 514 C. Other Trauma-Related Reforms ........................... 516 D. Potential Objections and Other Comments .......... 521 Conclusion ............................................................................. 522 Appendix ............................................................................. 524 Table 1 ......................................................................... 524 Table 2 ......................................................................... 525 Table 3 ......................................................................... 526 Table 4 ......................................................................... 527 Table 5 ......................................................................... 528 Table 6 ......................................................................... 529 Table 7 ......................................................................... 530 Table 8 ......................................................................... 530 “If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law.”1 Judith Herman PRELUDE The scene is a small, plain courtroom: the carpeting deep blue, the walls a light grey. It could be anywhere in the United States. A woman sits in the witness chair, looking straight ahead. She came to this country from somewhere else, and she is seeking political asylum. To her right, an immigration judge in a black robe sits at a raised wooden bench. A large government seal dominates the wall behind her. There are tables for the lawyers, with a podium between them, and several rows of empty benches behind a wooden railing. An interpreter sits in a chair, a notepad in his lap. The U.S. Government’s lawyer stands at the podium, asking questions in a clipped monotone. The judge listens intently and stares at the applicant as if she knows where things are going. “Remember that you are under oath. Is it your testimony 1. JUDITH HERMAN, TRAUMA AND RECOVERY: THE AFTERMATH OF VIOLENCE—FROM DOMESTIC ABUSE TO POLITICAL TERROR 72 (1992). 01 PASKEY FINAL 5/18/2016 3:49 PM 2016] TELLING REFUGEE STORIES 459 that police arrested you during a political demonstration in the capital? “Yes,” the applicant replies through the interpreter. “And you were held in jail for approximately three weeks?” “Yes,” again. And while you were held in jail, you were raped twice by guards?” A brief pause. “Yes.” “Is there anyone in the United States who can confirm what happened to you?” “No.” “Do you have any papers to prove you were arrested?” “Of course not. Why would the police give me papers? They do as they please.” “Ma’am, I am asking ‘yes’ or ‘no’ questions. Please just answer ‘yes’ or ‘no.’ Do you understand?” “I understand.” A pause. “No, I do not have any papers.” “In May of last year did you sign a declaration that explains why you are applying for asylum?” “Yes.” “Did your lawyer read that declaration to you, through an interpreter, before you signed it?” “Yes.” “And you swore to tell the truth?” “Yes.” “In your declaration, did you say you were held in jail for only one week?” “I . . . I’m not . . .” “Please answer ‘yes’ or ‘no.’ Would you like me to read your declaration to you?” “Yes. That is what I said. One week.” “And in your declaration, you did not say anything about being raped?” “I did not.” “Can you explain why your testimony today is different from your declaration?” The woman looks abruptly at her lawyer, who remains expressionless. She turns back to the judge and shakes her head. “How can I explain?,” she asks. “I am telling the truth.” Twenty minutes later, the woman and her lawyer leave 01 PASKEY FINAL 5/18/2016 3:49 PM 460 SANTA CLARA LAW REVIEW [Vol. 56 the courtroom. The judge has denied her claim for asylum after finding she is not credible. An appeals court will later uphold the judge’s ruling, and the woman will be deported. INTRODUCTION This story is a fiction,2 but it reflects the reality often faced by survivors of psychological trauma when they seek political asylum in U.S. immigration courts.3 By design, the courts are adversarial. And by its nature, that adjudication system is biased against the stories told by trauma survivors. Claims for asylum are a striking example of storytelling in the context of law. The applicant must prove either past persecution or a “well-founded fear” of future persecution.4 To meet that burden, the applicant must testify about her5 life before she arrived in the United States. In most cases, there is only one witness—the applicant—and no direct evidence to corroborate or contradict her story. Thus, whether asylum is granted depends largely on the applicant’s ability to tell a “good” story; one an immigration judge deems to be “credible” and that fits within the statutory definition of a “refugee.” In most cases, the judge has at least two versions of the story: the applicant’s oral testimony, and a written declaration prepared by either a lawyer or community group.6 2. Though this story is a fiction, it draws on the author’s experiences. Between 1995 and 1998, the author worked as a Dept. of Justice trial attorney with the former Immigration and Naturalization Service, and represented the U.S. government in more than 600 asylum cases. 3. See e.g., Zeru v. Gonzales, 503 F.3d 59 (1st Cir. 2007). In Zeru, an asylum applicant stated on different occasions that she had been raped either once, twice, or three times. Despite expert testimony proving that the applicant was suffering from post-traumatic stress disorder (PTSD), the First Circuit upheld an immigration judge’s conclusion that she was not credible. Id. at 69– 70. 4. See 8 U.S.C. § 1158(b)(1)(A) (stating that a “refugee” is eligible for asylum); 8 U.S.C. § 1158(b)(1)(B)(i) (stating that an applicant has the burden of proof); 8 U.S.C. § 1101 (a)(42) (defining “refugee”). 5. Many applicants, of course, are men. In the absence of an accepted gender neutral pronoun or a graceful way of avoiding gendered pronouns in every sentence, I’ve chosen to use “she” and “her” to refer to asylum applicants throughout this article. 6. See Stacy Caplow, Putting the “I” in Wr*t*ng: Drafting An A/Effective Personal Statement To Tell a Winning Refugee Story, 14 LEGAL WRITING: J. LEGAL WRITING INSTITUTE 249, 255–56 (2008) (discussing the role of a declaration in claims for asylum). 01 PASKEY FINAL 5/18/2016 3:49 PM 2016] TELLING REFUGEE STORIES 461 The only other evidence typically consists of written background reports on “country conditions” prepared by the U.S. State Department and human rights groups.7 In most cases, then, the only direct evidence regarding the applicant’s life experience is the applicant’s story itself, told in a foreign courtroom and filtered through lawyers, lay representatives, or interpreters. Against this backdrop, the judge will consider the applicant’s declaration and testimony, and will assess the demeanor, candor, and responsiveness of the applicant, the “inherent plausibility” of the story, and whether the applicant’s statements are both internally consistent and consistent with other evidence.8 If the judge concludes the applicant is not credible, asylum will almost certainly be denied. But psychological trauma is common among refugees,9 and the stories told by trauma survivors defy our expectations for a “credible” story. Trauma narratives tend to be fragmented and disjointed, both logically and chronologically.10 They may be lacking in detail, and the story will typically change over time, even with regard to critical details, as the survivor begins to heal.11 None of these things are a reliable measure of whether a survivor is truthful, and yet they are the very things an immigration 7. In determining whether an asylum applicant is credible, an immigration judge may consider whether the applicant’s statements are consistent with “reports of the Department of State on country conditions.” 8 U.S.C. § 1158(b)(1)(B)(iii). Similarly, applicants often submit reports from groups like Human Rights Watch or Amnesty International. See U.S. Citizenship and Immigration Services, Asylum Division Training Programs, Burden of Proof, Standards of Proof, and Evidence 17–18, available http://www.uscis.gov/humanitarian/refugees-asylum/asylum/asylum-division- training-programs (last visited July 2, 2015) (hereinafter “Asylum Officer Training”). 8. See 8 U.S.C. § 1158(b)(1)(B)(iii) (setting standards for determining the credibility of asylum applicants). 9. Research on PTSD among refugees has found widely varying rates, with the prevalence of trauma ranging from 4% to 86% depending on sample size, country of origin, and other factors. Hollifield, M., Warner, T.D., Lian, N., Krakow, B., Jenkins, J.H., Kesler, J., Stevenson, J., & Westermeyer, J., Measuring trauma and health status in refugees: A critical review, JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION, 611–621 (2002). See also, Elisa E. Bolton, PTSD in Refugees, available at http://www.ptsd.va.gov/professional/ trauma/other/ptsd-refugees.asp (last visited Feb. 6, 2016). 10. HERMAN, supra note 1, at 175–79. 11. HERMAN, supra note 1, at 180. 01 PASKEY FINAL 5/18/2016 3:49 PM 462 SANTA CLARA LAW REVIEW [Vol. 56 judge will typically point to as evidence that an asylum seeker is not credible.12 Indeed, inconsistencies within and among various versions of an applicant’s story are by far the most common factor cited by immigration judges when they make a negative credibility finding in an asylum case.13 In this country, core traits of the adjudication system compound the problem. In contrast to procedures used by some governments,14 the United States subjects most asylum seekers to adversarial cross-examination by a government lawyer.15 It does so in the apparent belief that cross- examination is an “engine” for “the discovery of truth.”16 But when the applicant is a trauma survivor and the only evidence is the applicant’s story, aggressive cross- examination is more likely to obscure the truth than reveal it —especially when an applicant is not represented. The process also assumes that a judge with no training in the effects of trauma can reliably assess the credibility of a survivor. Indeed, as disputes over expert testimony on rape trauma syndrome demonstrate, our legal system assumes judges and juries can reliably assess the credibility of any and all witnesses without the benefit of training or expert guidance.17 However, when the witness is a trauma survivor, that assumption is not true. Moreover, by requiring an applicant to tell her story 12. Because immigration judges are administrative law judges, their factual findings are subject to the substantial evidence standard, and a reviewing court must uphold the judge’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992). Thus, judges routinely identify for the record the reasons why they concluded an applicant is not credible. For a detailed analysis of the review standard and suggested alternatives, see Andrew Tae-Hyun Kim, Rethinking Review Standards in Asylum, 55 WM. & MARY L. REV. 581 (November 2013). 13. See infra, text accompanying notes 85 to 99, discussing the results from a study of 369 decisions in the Federal Courts of Appeal. 14. For a comparative analysis of the asylum adjudication systems in Australia, Canada, the United Kingdom, and the United States, see generally Peter W. Billings, A Comparative Analysis of Administrative and Adjudicative Systems for Determining Asylum Claims, 52 ADMIN. L. REV. 253 (2000). 15. Executive Office for Immigration Review, Immigration Court Practice Manual 83, available at http://www.justice.gov/eoir/office-chief-immigration- judge-0 (last visited June 10, 2013) (hereafter “EOIR Practice Manual”). 16. 5 JOHN H. WIGMORE, EVIDENCE 29 (3d ed. 1940). 17. See generally Anne Bowen Poulin, Credibility: A Fair Subject for Expert Testimony?, 59 FLA. L. REV. 991 (2007). 01 PASKEY FINAL 5/18/2016 3:49 PM 2016] TELLING REFUGEE STORIES 463 repeatedly over a lengthy period and “freezing” an early version in writing, the adjudication process increases the likelihood that a survivor will present inconsistent versions of her story.18 The role of lawyers and community groups introduces still further challenges. If the applicant is a survivor, inconsistencies between an applicant’s declaration and oral testimony are likely to say as much about the work habits and writing style of the person who drafted the declaration as they do about the applicant’s credibility. This Article examines these issues from the perspective of scholarship on psychological trauma. Part II summarizes the standard for asylum and the process by which asylum claims are adjudicated in the United States. It concludes with the results of original research on 369 asylum decisions issued by federal appeals courts in 2010. A systematic review of the cases demonstrates that when immigration judges conclude an applicant is not credible, they overwhelmingly rely on inconsistencies within or among the various versions of the applicant’s story, and especially inconsistencies between the testimony and declaration. Part III introduces a useful concept from structuralist narrative theory: the distinction between story and discourse, between the content of a story (characters and events) and the way the story is told. That distinction is critical to an understanding of the differences between multiple versions of a single story (the testimony and declaration, for instance), as well as the effects of trauma on storytelling. The most critical point is this: judges and lawyers typically assume that trauma impacts only the way an applicant tells her story— the discourse—but not the content of the story itself. Empirical research has proven that assumption to be wrong.19 The Article then turns directly to the challenges faced by survivors who seek asylum. After explaining the symptoms of trauma, Part IV examines the effects of trauma on a survivor’s ability to tell her story and the role of storytelling in the recovery process. Part V re-examines the asylum 18. In a study of refugees who suffered from PTSD, for instance, British researchers found that the rate of discrepancies increased substantially when they told their stories twice with a delay of six to seven months. Jane Herlihy & Stuart Turner, Should Discrepant Accounts Given by Asylum Seekers be Taken as Proof of Deceit?, 16 TORTURE 81 (2006). 19. See infra, text discussing notes 159 to 167. 01 PASKEY FINAL 5/18/2016 3:49 PM 464 SANTA CLARA LAW REVIEW [Vol. 56 adjudication system. It begins by reconsidering the process by which immigration judges evaluate credibility, then explores the ways a lawyer’s handling of a case can impact an immigration judge’s credibility findings. The final section, Part VI, surveys proposals for reform, then recommends that the U.S. Government eliminate adversarial hearings for asylum seekers. In addition, both judges and lawyers should be trained to understand the symptoms and effects of trauma, and especially the impact of trauma on a survivor’s ability to tell her story. But in some respects the scope of this Article is limited: there are other cultural, psychological, and practical issues that may affect a survivor’s testimony, ranging from feelings of shame or a fear of authority figures to the challenges of accurate interpretation.20 Though the Article does not consider these issues, they further support the Article’s central claim—that an adversarial hearing is a deeply and inherently flawed way to assess the credibility of asylum applicants who have experienced traumatic events. I. THE ADJUDICATION OF CREDIBILITY IN U.S. CLAIMS FOR ASYLUM In the words of a former immigration judge, the system by which the United States adjudicates claims for asylum is a “byzantine,” “crazy-quilt method” for deciding cases on which an applicant’s life may depend.21 This section will walk readers through that method and then present the results of original empirical research on the reasons why immigration judges find applicants not to be credible. A. The Asylum Adjudication Process Asylum is potentially available to any foreign national 20. For instance, trauma survivors often feel shame, guilt, or self-loathing about their experiences, and survivor’s ability to discuss her experiences in the presence of lawyers and judges may be diminished by cultural factors, gender roles, a fear of authority figures, or the social repercussions of talking about a rape with strangers. Herman, supra note 1, at 94; See David Gangsei & Ana C. Deutsch, Psychological Evaluation of Asylum Seekers as a Therapeutic Process, 17 TORTURE 79, 80, 82 (2007). Moreover, because the goal of torturers is often to make their victims talk, a torture survivor may associate talking in a legal setting “with the experience of forced talking under torture.” Id. at 80. 21. Bruce J. Einhorn, The Gift of Understanding, 3 ALB. GOV’T L. REV. 149, 152, 156 (2010). 01 PASKEY FINAL 5/18/2016 3:49 PM 2016] TELLING REFUGEE STORIES 465 who is physically present in the United States.22 It is also available to any foreign national who seeks admission at a port of entry if the government determines, after an interview, that the person has a “credible fear” of persecution.23 The ultimate goal of the adjudication process is to determine whether the applicant is a “refugee.” The applicant has the burden of proof24 and must demonstrate she is unwilling or unable to return to her country of nationality or citizenship25 because of past persecution or a “well-founded fear” of future persecution.26 The term “persecution” is construed narrowly to include only serious (and usually physical) harm.27 The applicant must also prove she has been (or may be) targeted for persecution “on account of” race, religion, nationality, political opinion, or “membership in a particular 22. 8 U.S.C. § 1158(a)(1). Refugee status may also be granted to certain persons who are outside the United States. See 8 U.S.C. § 1157. 23. 8 U.S.C. § 1225(b)(1)(B)(ii). 24. 8 U.S.C. § 1158(b)(1)(B). 25. 8 U.S.C. § 1101(a)(42) (defining “refugee”). But if the applicant is stateless (i.e., the applicant “has no nationality”), the assessment will focus instead on the country of the applicant’s “last habitual residence.” Id. 26. 8 U.S.C. § 1101(a)(42). To establish a “well-founded fear” of persecution, an applicant must demonstrate that her fear is both subjectively genuine and objectively reasonable. See e.g., Ahmed v. Keisler, 504 F.3d 1183, 1191–92 (9th Cir. 2007). 27. See, e.g., Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir. 1996) (two arrests with beatings and interrogation that the applicant did not characterize as “severe” or “excessive” did not establish past persecution); Thomas v. Ashcroft, 359 F.3d 1169, 1179 (9th Cir. 2004) (holding that escalating intimidation and a serious threat of physical violence established persecution); Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir. 2002) (holding death threats along with beatings of family members and murders of political allies constitute persecution). The term persecution does not include lesser forms of discrimination. E.g., Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993) (treatment of feminists in Iran was not so harsh as to amount to “persecution”). Nor does it include purely economic harms unless they threatened a person’s life or freedom. See, e.g., Li v. Attorney Gen. of U.S., 400 F.3d 157, 168 (3d Cir. 2005) (holding that the deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution). In one case, the Ninth Circuit held that a Seventh Day Adventist minister had not suffered past persecution by being forced to serve as a porter for the Burmese military. Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004). However, because a fellow minister had been tortured and killed, the Court concluded that the applicant had a well-founded fear of persecution. Id. For a broader discussion of asylum’s persecution requirement, see Michael English, Distinguishing True Persecution from Legitimate Prosecution in American Asylum Law, 60 OKLA. L. REV. 109 (2007).