Keywords

After engaging in a medical, psychological, or psychiatric evaluation of an asylum seeker, an evaluator will share the findings in the form of evidence with the client’s attorney. Generally, this will take the form of a written affidavit or oral testimony in a hearing setting. Understanding how an evaluator’s findings and conclusions will be used is vital and influences how this evidence is presented in an affidavit, declaration, or testimony.

As explained in the previous chapter on asylum law, in most immigration cases, the applicants for immigration relief bear the “burden of proof,” that is, the burden of showing that they have met all of the requirements necessary for immigration relief. To do so, applicants for immigration relief must corroborate the elements of the claim they are presenting as much as possible. Additionally, those seeking immigration relief must show that they are credible. To understand how the client will be using the evaluators’ testimony, it is important to clarify what the client will be seeking to establish in the asylum interview or immigration court.

Cases Where Evaluations May Be Useful

While each case poses singular evidentiary concerns, certain elements of an asylum claim may be especially amenable to being proven through a medical, psychological, or psychiatric evaluation. Additionally, because asylum seekers may be eligible for and pursuing various forms of immigration relief concurrently with an asylum application, an asylum seeker may use an evaluation to support a variety of immigration applications.

Asylum

To succeed on an asylum claim, asylum seekers must establish credibility and corroborate the key elements of their story. The Immigration and Nationality Act sets forth the facts that asylum seekers must meet to establish credibility and to adequately corroborate alleged facts [1]. A medical or psychological evaluation may help with both evidentiary requirements.

Corroborating Incidents of Past Trauma

Many asylum seekers have suffered serious incidents of violence, abuse, and other torment in ways that are relevant to their asylum case. Medical and psychological evaluations, in keeping with internationally recognized standards of the Istanbul Protocol [2], can help corroborate these incidents. Medical evaluations may support that marks, scars, bruises, or other physical sequelae are consistent with past physical or sexual violence that the applicant may testify to have suffered. For individuals who have survived traumatic events, psychological evaluations may reveal diagnoses or sequalae indicative of having survived trauma. In cases where there has been traumatic brain injury, a neuropsychological evaluation may be valuable.

Establishing Genuine Subjective Fear of Return

In order to establish a well-founded fear of persecution in the asylum seeker’s country of origin, the applicant must establish that the fear of persecution is both subjective, that is, that the applicant actually has a genuine fear of persecution if returned to the country of origin, and objective, meaning that the fear of persecution is reasonable and sufficiently likely given the facts and evidence presented. It can be assumed that an asylum seeker’s subjective fear of returning is to be understood by the fact that they have requested asylum. Nevertheless, the burden of proving this subjective fear rests with the applicant, and certain events in the applicant’s story may, at first glance, cast doubt upon whether the asylum seeker’s fear of persecution is genuine. For example, an asylum seeker may have previously escaped the country of origin and returned despite serious, credible threats to safety. (This is common, for example, when the return is precipitated by feelings of religious or familial obligation, such as when loved ones are ill or have died.)

Especially in such cases where the authenticity of an applicant’s fear may become an issue of contention, a psychological evaluation may help document indications that an asylum seeker genuinely fears harm if returned to their country of origin. An evaluator may note in the affidavit any symptoms or behavior that could reflect that the person is experiencing fear of being harmed if returned to their home country.

Credibility

For an asylum seeker’s application to be successful, the adjudicator must find them to be credible. The Immigration and Nationality Act gives adjudicators broad discretion in their credibility assessments, explicitly authorizing them to consider, among other things, an applicant’s demeanor, candor, or responsiveness, and the inherent plausibility of the applicant’s account. Consistency is a key factor for adjudicators’ determinations. Asylum adjudicators may consider the internal consistency of an applicant’s testimony; the consistency between an applicant’s current testimony and any prior statements (without regard to whether prior statements were made under oath); the consistency of the applicant’s statements with other evidence the applicant has presented (including witness statements, expert testimony, or documentary evidence); and any inaccuracies or falsehoods – without regard to whether the inaccuracy or falsehood relates directly to the asylum claim or any materially relevant factor [3]. Regardless of how strong an asylum seeker’s evidence is, it will not matter if the adjudicator determines that the asylum seeker’s inconsistencies or demeanor renders them not credible.

Psychological evaluations in particular can be crucial for helping an asylum seeker overcome behavior that, left unexplained, could lead to a negative credibility finding. Where an applicant may be unable to describe specific details, recount events sequentially, or recall events without variability, a psychological evaluation may help explain how these occurrences are consistent with having survived trauma [4] and explain the effects of trauma and stress on memory. Similarly, if an applicant’s demeanor is flat, dissociative, or seemingly out of character with the tenor of the testimony, a psychological evaluation could identify these testimonial characteristics as consistent with conditions such as post-traumatic stress disorder, major depressive disorder, dissociative disorders, or other conditions that could result from surviving traumatic events. While evaluators should resist making conclusory statements about the credibility of an asylum seeker, given that “credibility” is a legal finding that only an adjudicator can make, evaluators may weigh in on the believability of an asylum-seeker by explaining why their assessment does not support malingering [5,6,7].

Establishing Facts Relevant to Eligibility for Humanitarian Asylum

Asylum seekers who have established that they have survived persecution on account of a protected ground, but who cannot establish a well-founded fear of future persecution, may still receive a grant of asylum under the theory of humanitarian asylum. Humanitarian asylum is a valuable tool for those who have suffered persecution in the past, but who may no longer be able to prove that they would suffer the same kind of harm if they returned in the future. This arises, for example, if an asylum seeker’s persecutor dies or loses power or influence, or if conditions in the asylum seeker’s home country improve for those similarly situated to the asylum seeker.

To be granted humanitarian asylum based on past persecution alone, an applicant must establish at least one of two things: (a) compelling reasons for being unwilling or unable to return to the country of origin, arising out of the severity of the past persecution; or (b) that there is a reasonable possibility that the applicant may suffer other serious harm upon removal to that country [8]. In essence, humanitarian asylum recognizes that certain asylum seekers have suffered so immensely in the past that returning them to the place of persecution would be inhumane.

An asylum seeker can qualify for humanitarian asylum if the harm they suffered on account of a protected ground was especially atrocious. In assessing humanitarian asylum claims, adjudicators look for indications of extraordinary suffering [9] and may require a demonstration that the suffering resulted in long-lasting physical or mental effects for the asylum seeker [10]. Physical and psychological evaluations can be vital evidence to describe the evidence of past abuse or torture (such as scars, broken bones, or post-traumatic stress disorder), opine on the likelihood that the sequalae of harm could have been caused by the events described by the asylum seeker, and speak to any long-standing health effects caused by the harm.

An evaluator can also speak to other harm that an asylum seeker may face if returned to their country. While it is not within the evaluator’s area of expertise to opine as to whether the applicants should be returned to their home countries as a matter of law, a medical or psychological evaluation may assist an asylum seeker in showing eligibility for humanitarian asylum by detailing the medical or psychological consequences that returning home could have on the applicant. For example, if the applicant’s present condition requires continued medical attention or medication, an evaluator may make a note of this and detail the harm to the applicant’s well-being that can arise if a treatment plan is interrupted or stopped. (Note, however, that an adjudicator would consider it beyond the evaluator’s area of expertise to comment on the availability of the necessary treatment in the applicant’s home country. Such an assessment would be best left for an expert on conditions in the applicant’s home country.) Similarly, if a mental health evaluator predicts that a return to a person’s home country would create a significant possibility of severe depression, suicidal behavior, dissociation, or exacerbation of an anxiety disorder, a detailed explanation of the evaluator’s prediction may help bolster the asylum seeker’s request for humanitarian asylum.

Meeting the “Extraordinary Circumstance” Exception to the 1-Year Deadline

As previously noted, to be eligible for asylum, a person must file an asylum application within 1 year of entering the United States. Failing to meet that deadline renders the applicant statutorily ineligible for asylum [11]. Missing the 1-year filing deadline will not bar an applicant from asylum, however, if the applicant can prove that circumstances have materially changed, such that the person developed a well-founded fear while already in the United States, or if the applicant can prove that extraordinary circumstances prevented the applicant from filing an asylum application within 1 year of arrival. In both instances, the applicant’s failure to file for asylum within a year of arrival in the United States will not render them ineligible for asylum, so long as the applicant subsequently files the application within a reasonable time.

Changes in circumstances can manifest in a variety of ways. Applicants may have experienced personal life events that have created risks of persecution that did not exist before. A person may have determined or publicly revealed that they are not heterosexual or cis-gendered; converted to a new religion, or rejected or denounced a religious faith or method of practice; or engaged in new, dangerous forms of political speech or advocacy.

An extraordinary circumstance is one that reasonably precludes the applicant from filing an asylum application within a year.Footnote 1 Federal regulations provide certain non-exclusive examples of the types of situations that may constitute extraordinary circumstances. Of relevant interest, some of those named exceptions include serious illness or mental or physical disability during the 1-year period after the asylum seeker’s arrival in the United States, including any effects of persecution or violent harm suffered in the past, and legal disability, which can include any relevant mental impairment or other incompetency. Another exception, though not one explicitly mentioned in the federal regulations, could include situations of trafficking or domestic violence that significantly threatened the applicant’s freedom or safety.

An evaluation could help identify, diagnose, or describe any medical or mental circumstances that have prevented the individual from being able to file an application within a year of arrival. Further, the evaluation could explain in simple terms how such a circumstance could affect the afflicted individual in such a manner that meeting a legal deadline would have been exceedingly difficult or impossible. It is not uncommon, for example, for an applicant coping with untreated post-traumatic stress disorder to avoid anything that may remind them of the survived past persecution and, consequently, to find themselves unable to speak about their past to an attorney or unable to write about their experiences in the asylum application form. In this circumstance, an evaluation and affidavit could be helpful to diagnose post-traumatic stress disorder, describe the symptoms and behavior that the applicant is exhibiting, and explain how these affect their ability to function in everyday life and to engage in the legal asylum process.

Custody Redetermination Requests, Habeas Corpus Petitions, and Other Issues Related to Release from Immigration Detention

In recent years, the federal government has resorted to detaining asylum-seeking adults and children, keeping them in detention centers or “family residential centers” (i.e., family detention centers) until they are able to have a day in immigration court to present their claims [12, 13]. Representation in these circumstances presents special challenges for attorneys and evaluators, and raises significant access to justice, health, and wellness concerns. Inadequate medical care that detained immigrants often receive while incarcerated in immigration detention centers has been widely documented [14]. For particularly medically vulnerable asylum seekers, medical, psychological, or psychiatric evaluations of detained individuals may be conducted to support petitions aimed at releasing these individuals from their carceral settings. In most cases, these requests for release will take the form of a custody redetermination request (i.e., a bond request or hearing) before ICE or an immigration judge, or a habeas petition in a federal district court.

Custody Redeterminations

In a custody redetermination (bond) hearing before an immigration judge, the immigration judge has broad discretion to determine whether, and under what conditions, the detainee may be released. An immigration judge generally weighs a number of factors, including the likelihood that the release would pose a danger to property or to the community, the likelihood that the detainee will comply with their obligations to appear at subsequent immigration court or ICE appointments, and other issues, such as the roots that the detainee may have in their communities, the impact of the detainee’s absence to members of the community, and special humanitarian concerns [15, 16]. A medical, psychological, or psychiatric evaluation of a detained asylum seeker may support an asylum seeker’s request to be released from immigration detention when the expert’s affidavit concludes that continued detention would endanger the detainee’s health.

Habeas Corpus

Habeas corpus is a legal recourse available to people in government custody, through which these individuals petition a court to assess the circumstances of their detention and determine whether the detention is unlawful. Notably, while a bond hearing happens in immigration court, a venue that lies within the Department of Justice and is thus susceptible to the policy concerns of the administration in power, a petition for habeas corpus is decided by an appointed judge in federal district court, within the judicial branch of government. The right to habeas corpus stems from the Suspension Clause of the United States Constitution [17] and federal statute [18]. Federal district court judges can grant habeas corpus to people that are held in the custody of the federal government in violation of the Constitution, laws, or treaties of the United States.

In the immigration context, an asylum seeker may bring a petition for habeas corpus to challenge the length or conditions of immigration detention. Attorneys may file petitions for habeas corpus to challenge the length of time that a noncitizen can be held in detention after they have been ordered removed by an immigration judge, or to challenge the conditions of detention for medically vulnerable noncitizens, such as detained children with suicidal ideations [19], women with high-risk pregnancies, or individuals in need of emergency medical care or with particular vulnerability to a pandemic [20]. In these cases, an evaluation or professional opinion may be sought to support the detained person’s argument that continued detention would constitute excessive punishment and be unconstitutional. An evaluation can identify an unrecognized or untreated disease or condition; challenge the efficacy, propriety, or quality of health care available in detention; or otherwise support the idea that continued detention or isolation poses a serious risk to a detained person’s life.

How Asylum and Immigration-Related Forensic Evaluations Differ from Clinical Examinations for Care Purposes

Psychological evaluations conducted for asylum and immigration-related purposes (and their associated affidavits) often differ in some key respects from those conducted for treatment or other legal purposes. They typically are narrower in scope and focus strictly on the key legal issues where the evaluator has been asked for their assessment. Determining which facts are legally as well as psychologically or medically relevant is important [5]. In addition, the evaluator may have more time constraints compared to when they assess a client who is under their clinical care. This too would affect the scope of what they are able to address in their forensic assessment and affidavit.

Before the evaluator meets with the asylum seeker, they should find out how much time they will have to conduct their evaluation, as this will help them to determine what they will be able to cover. If the person is detained or otherwise in custody, the attorney who has asked them to conduct the evaluation will need to ascertain what the limits and protocols are for the evaluator and confirm that the detention facility will grant the evaluator access to meet with the person. Some facilities will only allow evaluators to meet at certain times and have strict time constraints. Some will limit the evaluator to only one session, while others will allow for a second or even third session. This information will help the evaluator to prepare a plan to that allows sufficient time to address the most crucial issues.

Best practices in many clinical care contexts require a medical or psychological evaluator to perform a comprehensive holistic assessment of the individual across their lifespan and to provide extensive details in a report. It is important to address the implications of these practices when training and orienting clinicians who are new to conducting forensic evaluations in the context of asylum and related immigration cases. Sometimes, it may be appropriate to leave details more general or vague to avoid an inconsistency that is immaterial to the main conclusions in the evaluation [5]. For example, rather than providing details of the persecution or other life experiences, such as the exact number of times that the person was beaten, it is typically recommended to summarize by saying that the event happened multiple times, or more than once. The person may not remember all the details or exactly the same details when on the stand testifying. Instead of including exact dates and times, evaluators should consider framing those details in the affidavit and testimony by anchoring the person’s experience to aspects they are likely to remember such as, “It was dark – in the evening,” “It was the day that we buried my mother,” or “It was the day my son graduated from primary school.” Some asylum applicants will not use the Gregorian calendar commonly used in the West. The Ethiopian calendar, for example, is composed of 13 months – 12 months with 30 days and 1 month that includes just 5 days (or 6, if it is a leap year). The impact of severe trauma, including head or brain injury, may impact the person’s ability to store memory, resulting in an impaired ability to recount a detailed narrative of their experiences.

In the context of asylum and other immigration proceedings, a psychological evaluator typically would not include a comprehensive psychosocial history as they might in many psychological reports. Instead, the evaluator should focus on the key legal issues that they have been asked to weigh in on and provide evidence to support their clinical impressions. The evaluator is encouraged to discuss with the asylum seeker’s attorney any suggestions they have for issues to assess that may be legally relevant to the case. Some common areas for focus include:

  • Does the person present as someone who has gone through the persecution experiences that they report?

  • What is the impact of such experiences on their life?

  • Do they have any physical or mental health condition(s)? If so, what is the history of the health condition(s) and is it (are they) related, at least in part, to the qualifying persecution?

  • What is the evaluator’s professional opinion on the likely impact on the person’s psychological state if they are ordered deported?

While it is important for the evaluator to understand how the qualifying persecution experience(s) fit(s) into the person’s life (in terms of any prior trauma and the impact of that on the person’s mental or physical health and functioning), an evaluator would generally not have time to gather as extensive a history as is common in other types of evaluations. It may be valuable to include a brief summary of the person’s earlier life prior to the qualifying persecution experiences. The key purpose of this is to establish a baseline of their functional and mental health and document any change (if relevant) after they were persecuted, and how this evolved over time in the case of repeated or long-term persecution) [4]. For example, a young woman may have been a strong student, socially active and outgoing, and a leader of her church youth group, but since she and her family were attacked and tortured by the police for their political activism, she has been withdrawn, rarely leaves the house except to go to school, is failing two of her classes, and has stopped her involvement with church youth group. It would be informative to discuss the reason(s) for any changes (e.g., she is fearful of seeing the police or being attacked on the street again; cannot concentrate in class or on her assignments; is ashamed that friends may learn that she was raped and ostracize her).

Collaborating with Attorneys

The most effective asylum evaluations are invariably those that are tailored to meet the asylum seeker’s legal needs. As such, collaboration with attorneys is crucial for ensuring that the evaluation effectively addresses matters that will be addressed in the adjudicatory hearing.

Preliminary Considerations

It is helpful, and in some courtrooms necessary, for the forensic psychological or medical evaluator to be licensed if they are to testify as an expert witness in asylum or other legal proceedings. An essential first step for evaluators seeking to perform a forensic evaluation out of the state where they are licensed is to investigate the licensing laws in the state where they are conducting the evaluation. Some states have laws that allow a professional licensed in another state to perform an evaluation, but do not allow them to provide therapy or treatment, and may require that the clinician inform the person that they are evaluating in writing that they are not licensed in that state.

Clinicians who are experienced in conducting assessments in their clinical practice or in their professional offices for forensic purposes generally have confidential meeting spaces for these purposes. We have found that some detention facilities do not provide evaluators with confidential meeting spaces unless the attorney representing the detained person negotiates for this in advance. This may be due, in part, to a lack of appropriate spaces in the facility, competing demands for confidential meeting spaces, or to a lack of understanding by facility personnel for the need for confidential meeting spaces. Evaluators may be provided with inadequate and nonprivate meeting spaces. Not only do these configurations preclude the possibility for confidential conversation, but they also violate the rights of detainees, and serve to inhibit the person being evaluated from disclosing sensitive topics that may leave them feeling vulnerable or unsafe – often the very topics that the evaluator needs to hear. Even when provided with a space that is soundproof and confidential, there is an often window in the door through which correctional staff and other detainees can look in, which can result in a sense of intrusion and disruption. Sometimes it is the evaluator who is more disturbed by this, as the detained person may have come to expect this in a facility where privacy is scarce. Regardless, these circumstances should be anticipated for and mitigated as much as possible.

Deadlines

To the extent that deadlines are calculable, it is helpful to determine when the client will need to have a final version of an affidavit to submit to the asylum office or immigration court. Deadlines – and the amount of certainty with which one can determine them – can vary depending on the venue in which the asylum claim will be heard, the procedural posture of the client’s case, and the extent to which the attorney may need to review the findings to develop the legal theory.

Generally, deadlines associated with filing evidence are most easily determinable when the hearing is in immigration court, where hearing dates are often set several months, if not years, in advance. In these instances, an immigration judge will often set a deadline for when evidence and a list of potential witnesses must be filed. Litigation schedules for detained asylum seekers may have a shorter turnaround time than for those that are not detained, because, to avoid prolonged detentions, immigration judges tend to schedule merits hearings for asylum seekers within a few months of the initial hearing.

For those requesting asylum before the asylum office, scheduling can be less predictable, as scheduling priorities are subject to change. Currently, asylum offices employ a first-in–last-out scheduling policy, prioritizing interviews for those who have most recently filed their asylum applications [21]. While exact scheduling patterns vary by asylum office, it is not uncommon for an asylum interview to be scheduled within a month of when the asylum seeker files their asylum application. An asylum seeker filing shortly after arrival in the United States, where the proximity of the 1-year deadline is not a pressing concern, may have months to prepare evidence, which may include an affidavit from a physical or psychological evaluator. On the other hand, asylum seekers who must rush to file asylum applications with the asylum office before the 1-year deadline may find that they only have 45 days or less to compile and submit all corroborating evidence to the asylum office. This rushed circumstance is common, particularly for those who delay finding legal representation because they need time to save money for legal fees or wait for an attorney to have availability. As a general matter, evaluators should determine not only whether the attorney knows of any already existing deadlines, but also what the likelihood is that a filing deadline could be suddenly imposed.

After ascertaining an approximate deadline, an evaluator should ensure that the deadlines leave sufficient time to meet with the client as many times as necessary. Clinicians must also consider the length of time it will take to write an initial draft of the evaluation and the amount of time it may take to discuss and implement any revisions suggested by the attorney.

Known Information on Medical and Social Background

An evaluator can find it challenging or impossible to conduct a thorough forensic evaluation when there is limited access and time for the evaluation. The evaluator may also be constrained when they have little or no access to relevant collateral information regarding the person’s health, mental health, psychosocial history, and other pertinent matters. In general, evaluators should request access to pertinent collateral information. Such information may serve as important documentation of the person’s persecution and its impact on their lives, as well as help the evaluator better understand the person’s clinical condition and functioning over time (including any changes that may have occurred at the time of or after the persecution).

Sometimes collateral information may not be readily available due to a number of factors: a detention center or other facility may not make the information available, even if the person consents; individuals with relevant collateral information may be unavailable (e.g., deceased or in a different country) or unreachable (e.g., in hiding in the home country or with no known address or way to call or otherwise contact them); or the information may be unavailable, destroyed, or misplaced (e.g., documents left behind in the home country when the person escaped; documents burned in a fire when the person’s home was attacked during persecution or after they fled; disorganized official records in the person’s home country; or missing birth certificates, if the person is from a region where home births are common and official birth certificates are not often issued).

Occasionally it is possible to obtain relevant independent observations from the person’s roommate or cell mate (e.g., regarding sleep disturbances, behavior, or other observations). A case example that illustrates this involves a client who was tortured. The evaluator was able to interview a sibling who had moved to the United States a few years prior to the person’s torture. The sibling had returned to the home country for a visit shortly after the torture occurred and was able to report significant changes in the mental health of the person, changes that persisted after the person fled to the United States and began to live with the sibling. They told the evaluator that they did not know what had caused the dramatic changes until a couple of years later, when they learned that their sibling had been tortured.

Personal Declaration or Affidavit, If Available

As explained previously, an integral part of an asylum seeker’s evidence is the personal declaration or affidavit – sworn testimony that spells out, in a detailed, narrative form, the events that led to the asylum seeker’s escape, or the basis for their fear of persecution in their country of origin. At the time an evaluation is requested, an attorney may already have a working or final draft of the asylum seeker’s personal declaration. Reviewing the client’s declaration before the evaluation may make the evaluation and revision process more efficient, preparing the evaluator to be vigilant with respect to the types of medical and psychological sequelae that may be present and to tailor examination questions appropriately.

An effective personal declaration will tell the relevant story in the asylum seeker’s voice, while setting forth the story in a way that highlights the facts the asylum seeker must establish to show eligibility for asylum. Accordingly, reviewing the asylum seeker’s declaration will provide give the evaluator with a clear picture of the kinds of events that could benefit from corroboration through a medical or psychological evaluation.

Having a copy of the declaration, especially one that is in near-final form, will also ensure that the evaluator’s summary of facts shared by the asylum seeker does not conflict with the sworn testimony that the asylum seeker submits in support of the asylum application. Because any factual inconsistency – even an immaterial one – can lead an adjudicator to deny an asylum application for lack of credibility, consistency in details such as order of events, dates, and numbers is paramount to the success of an asylum seeker’s claim. If during the evaluation, the asylum seeker deviates from the descriptions set out in the declaration, the evaluator may bring this to the attention of the attorney to determine whether the attorney misunderstood the client’s story, whether the asylum seeker (or interpreter) misspoke during the evaluation, or whether the asylum seeker is having trouble remembering details and should be screened for conditions that might affect memory. The declaration may also prove useful during the evaluation drafting process, as the evaluator summarizes statements shared during the evaluation (to the extent they are consistent with the declaration).

Case Theory

As noted above, asylum seekers may use medical or psychological evaluations, and their associated affidavits, to corroborate several elements of their asylum claims. Knowledge of the attorney’s case theory can help an evaluator understand the evaluation’s role in the legal case, which in turn can help the evaluator ascertain what to look for or assess in the evaluation. For example, if the attorney shares with a psychological evaluator that the asylum seeker will be pursuing humanitarian asylum and will try to show that the effects of past persecution are such that the asylum seeker will need ongoing treatment that is unavailable in the asylum seeker’s home country, the evaluator can anticipate detailing what they recommend as further treatment and explain how foregoing further care would harm the asylum seeker’s mental health. If the lawyer shares that a medical evaluation will be used to corroborate an asylum seeker’s account of past torture, a medical evaluator can prepare for the evaluation by reviewing the asylum seeker’s personal declaration to familiarize themselves with the ways that the asylum seeker’s torture could manifest on the body or on the asylum seeker’s health.

Scope of Testimony and How Testimony Will Be Used

In addition to determining how an evaluator’s affidavit or live expert witness testimony will form a part of the case theory, an evaluator should learn how the testimony will be used in litigation, the venue in which the case will be presented, and the scope of the testimony (i.e., whether the expert will be expected to present live testimony and be cross-examined during a trial or hearing). If the evaluator is not willing to testify in court as to the methods and findings of the evaluation, they should express this when initially approached by the attorney so that the attorney can determine whether the evaluator will be the right expert witness for the case.

One issue to consider is that the venue where an asylum seeker’s claim is ultimately decided can change from what is initially anticipated. For example, live witness testimony is rarely expected in adjudicatory interviews before the asylum office, so an expert witness hired to provide an affidavit for an asylum seeker presenting their case before the asylum office might reasonably assume that no court appearances or live testimony will be necessary. If the asylum officer does not approve the asylum seeker’s application, however, and the asylum seeker is not otherwise in lawful immigration status, the asylum seeker’s case will be referred to an immigration judge, where the asylum seeker would have another opportunity to pursue the asylum claim in an adversarial setting. As such, the evaluator should ask whether the affidavit initially produced as evidence for the asylum office could also be used as support for the claim in immigration court, should the case be referred. If so, the evaluator should also ask whether they would be expected to be called as an expert witness, subject to direct examination by the asylum seeker’s attorney and cross-examination by an opposing government trial attorney and the immigration judge. Similarly, if an affidavit is used to support a request for bond, an evaluator should determine whether the affidavit will also be used as corroborating evidence for the asylum claim.

Another key question is whether the attorney anticipates that the affidavit could be used in federal court litigation, where the evaluator’s oral or written testimony may be compelled by a federal judge. Because immigration court is an administrative hearing that is not subject to the Federal Rules of Civil Procedure, an evaluator who has agreed to prepare an affidavit for an asylum seeker has the authority to decline live testimony in immigration court. While immigration judges technically have the authority to subpoena certain witnesses, they rarely execute this authority and are unlikely to compel an evaluator to show up in person to be subject to cross-examination (though some immigration judges may refuse to admit an expert affidavit into evidence if the expert is not available for cross-examination). In federal district court, the venue where petitions for habeas corpus are heard, however, opposing parties have a right to engage in discovery, a formalized fact-finding process that entitles parties to request information and evidence from other opposing parties and their witnesses. Parties in federal district court generally have more latitude to request a judge to compel a witness to testify in court or in a deposition. For expert witnesses who submit written testimony in the form of an affidavit, parties have the right to propound interrogatory requests (compelled fact-finding requests in the form of a set of questions that must be answered in writing under oath) [22].Footnote 2 Given that an asylum seeker denied bond by an immigration judge might attempt to secure a release from detention through a habeas corpus proceeding, evaluators would be wise to ascertain whether affidavits they submit for a custody redetermination hearing in immigration court would be reused in federal district court if the asylum seeker were to pursue a habeas corpus claim at a later date.

Evaluation Revisions

After an evaluator submits an initial draft of the affidavit to the asylum seeker’s attorney, the evaluator should expect to receive feedback from the attorney, and more likely than not, a request that certain changes be made to the evaluation. How and when to acquiesce to these requests can pose difficult professional and ethical determinations for an evaluator. An evaluator’s role in the litigation is to provide objective evidence about the asylum seeker’s physical or mental state. Further, evaluations are generally submitted in the form of a sworn affidavit or declaration under penalty of perjury. Evaluators must only submit testimony that they believe to be true, or else risk committing perjury, and they must maintain an objective tone and purpose in their evaluations. Showing clear bias in favor of the asylum seeker or reaching dubiously favorable findings and conclusions is not only ethically questionable, but it may also render the evaluation less reliable as evidence, defeating the purpose of the endeavor.

Even so, an attorney may request revisions to the evaluation for any number of legitimate reasons. An attorney may request that an evaluator remove legal conclusions or predictive findings that are not within the scope of the evaluator’s expertise and are likely to provoke an adjudicator or draw an objection from opposing government attorneys. For example, if a psychological evaluator states that the asylum seeker is credible and predicts that returning the asylum seeker to her home country would lead to persecution, the attorney would be wise to request a revision, given that credibility is a legal standard and likelihood of future harm is a factual finding that only an immigration judge has the authority to make. Instead, an asylum attorney may ask the evaluator to omit the prediction of future harm and to rephrase the credibility statement into a statement that details why the evaluator has determined that the client is not malingering. An attorney may request other revisions, including:

  • Further explanation, justification or support of conclusions or findings. An attorney may request that an evaluator provide additional clarification or more support for an important finding, particularly if the justification would be persuasive to corroborating a key element of the asylum claim. Similarly, an attorney may suggest wording or style changes, especially to avoid the use of words with particular legal definitions or to better fit the preferences of a particular immigration judge.

  • Fixing inconsistencies . As explained above, an adjudicator may rely on any inconsistencies, however minor, to reach a negative credibility finding, including inconsistencies between the story recounted in an asylum seeker’s testimony and in the factual summary contained in the evaluator’s affidavit. An evaluator should determine how crucial the exact details are to the overall conclusions of an evaluation. Omitting an inconsistent detail in the factual summary that would not affect the overall conclusions or tarnish the integrity of the evaluation (like a date that varies by just a few days) may preserve the asylum seeker’s credibility in court.

  • Maintaining an objective tone. An affidavit that reads as overly supportive of the asylum seeker’s claim or lacking objectivity may be counterproductive, as an adjudicator may give a biased evaluation little probative weight. As such, an attorney may make suggestions as to tone. For example, an attorney may request that an evaluator delete statements that a person is deserving of asylum or pleas for the grant of the asylum seeker’s case.

Evaluators should be mindful, however, that the decision as to whether to revise the affidavit lies with them. Evaluators should resist revising an affidavit in a way that would insert misstatements, findings or diagnoses that are not warranted, or factual recollections that clients themselves did not provide. For example, an attorney attempting to justify missing a 1-year filing deadline may press a psychological evaluator to make a finding of post-traumatic stress disorder and to explain the effects that trauma can have on the ability to file an asylum application within a year of arriving in the United States. However, if the evaluator assessed for post-traumatic stress disorder and did not find that the diagnosis was warranted, the evaluator would be violating their ethical and legal duties by making a diagnosis that the evaluator knows is not warranted. Additionally, blindly accepting all attorney revisions may ultimately lead to the evaluation being unpersuasive, especially if upon cross-examination, the evaluator admits to having added a diagnosis or changed a conclusion at the request of an attorney. If there is reason to believe that the evaluator overlooked something important in the evaluation process, one solution could be for the evaluator to perform another evaluation before determining whether subsequent revisions are warranted.

Best Practices for Testifying in Court

One overarching best practice for testifying in court (and for conducting the evaluation and writing an affidavit) is to remain as objective as possible, without becoming defensive. Any clinical impressions or conclusions that the evaluator/witness make should be backed up with supporting evidence [4, 23]. Care should be taken not to overstate or understate findings or conclusions, and the witness should be prepared to note any limitations or uncertainty in their findings if they are questioned about them on cross-examination. Remember that an expert witness who has been qualified as such by the judge is allowed to offer their professional opinion within the scope of their training and expertise.

It is vital for the witness to listen carefully to the questions they are asked and answer truthfully. In general, witnesses should answer concisely, including with a simple yes or no when possible. When a yes or no response is inappropriate or cannot provide an accurate answer to the question asked, the witness can and should qualify their responses. The asylum seeker’s attorney can ask follow-up questions to obtain further details if needed.

As appropriate, an evaluator may clarify why it was determined that a client’s reaction to a situation or their condition is different from what may be observed in others or is generally observed. For example, one of the authors of this chapter was asked on the stand once why she had stated in her affidavit that she believed that the teenaged person she evaluated was fearful of being tortured again or killed if they returned to their country of origin, especially given that they had returned once after their initial departure following their torture. The expert testified that the teenager had reported that they had returned only because they heard that their mother was dying, and it was important in their culture to pay their last respects, be with their parent at their death, and ensure a proper burial. The teenager shared that they would never have been able to forgive themselves if they had not done so. Given that they feared that the authorities were still looking for them, they remained in hiding when they went back and met their mother only for brief periods late at night and in disguise. As soon as the mother was buried, they escaped the country again. The expert also testified about the independent report they had received from the person that had hidden the teenager in their home, which corroborated the youth’s account.

Witnesses should be prepared for their testimony by the attorney. An evaluator can request a “mooting,” that is, a dress rehearsal of the direct examination and cross-examination. Expert evaluators/witnesses should communicate with the attorney regarding their professional opinion of the respondent, the range of findings that they could testify to, and what their recommendations would be, if asked, in advance of the hearing. With regards to preparing for being qualified as an expert witness, some attorneys may not understand how some of an expert witness’ background (e.g., the expert witness’ training, credentials, and experience) is relevant to the case. As such, as part of the hearing preparation, the expert witness should highlight key relevant parts of their background for the attorney.

For example, in a cross-examination, an opposing government attorney may note that an expert witness has only ever testified on behalf of asylum seekers (and never against their interests), in an attempt to show bias. In preparation for such questioning, an expert witness might share with the asylum seeker’s attorney background details that give context to a seemingly detrimental response. In this example, the expert could share that while they had only ever testified in support of asylum seeker’s interests, they did so while working at a nonprofit agency whose largest funder was the US government. The expert witness could further clarify that, in fact, their salary was primarily paid by the US government, and that the expert witness’s agency was audited every year to ensure that it only served those who had experienced state-sponsored torture. Other relevant background factors expert witnesses may want to highlight for the asylum seeker’s attorney may include experience in training relevant federal personnel (such as training asylum officers or judges on the psychosocial effects of torture); experience in evaluating similarly situated individuals; how their professional license qualifies them to assess, diagnose, and treat individuals with a wide range of health or mental health conditions; the pertinent specialty training the expert witness has received; and the expert witness’ training and supervision of other health or mental health professionals as relevant to the evaluation and testimony.

The opposing government attorney will have a copy of the expert witness’ curriculum vitae (CV) and can ask follow-up questions about the expert witness’ credentials and expertise. An expert witness might consider discussing with the asylum seeker’s attorney in advance whether to shorten their CV to highlight what is most relevant to the testimony. Evaluators should be aware, however, that if there are other versions of their CV readily available online, and if they differ substantially from the CV presented in court, the expert may have to field questions about why they changed their CV. Expert witnesses should be ready to answer those questions.

Expert witnesses typically are asked questions covering the scope of their affidavit, although sometimes the judge will admit the affidavit into evidence without the need for live court testimony (particularly if experts have made themselves available for cross-examination and there are no questions pertaining to their findings). Questions related to the evaluation and the affidavit commonly cover such domains as the expert’s training, credentials, background, and relevant expertise; number of sessions and length of time that they examined the respondent; the typical duration of an evaluation for an asylum seeker; and methodology used in evaluation. Experts can also expect to explain the context for their main findings, such as what the respondent described to the evaluator regarding the reasons for their leaving their home country; whether the evaluator found the respondent to be malingering and the basis for said finding; the respondent’s psychiatric and medical history and current diagnoses; whether the evaluator reached a conclusion regarding the factors contributing to the development of the condition(s) they diagnosed the respondent with; the evaluator’s prognosis for the asylum seeker’s future health, including any potential health effects that could result if the asylum seeker is deported to their home country; and recommendations for treatment, care, or stabilization.

The witness should expect tough questions from the prosecutor (the “trial attorney” in immigration court), but it bears repeating that a witness’ testimony will be more effective if they avoid appearing defensive. While space constraints prohibit an exhaustive list of potentially challenging questions (which invariably are shaped by the specific case at hand), some common questions an expert witness who evaluated a respondent should be prepared to answer include:

  • Have you always testified for the respondent in asylum proceedings?

  • Is everything that you know about the person based solely on what they told you?

  • In every case where you have testified, have you always recommended that the asylum seeker not be deported?

  • Were you paid for the evaluation, for drafting the affidavit, and for appearing in court today? How much?

  • Did you use (or fail to use) a particular methodology or diagnostic scale or test? Why?

Psychological evaluators who have diagnosed the asylum seeker with post-traumatic stress disorder (PTSD) should be prepared to be asked about other traumas (nonqualifying persecution) that they have experienced that may have resulted in PTSD (e.g., a soldier who saw combat):

  • How do you know that their PTSD is really due to being tortured by the secret police for their political activism and not because they are a combat veteran?

Similarly, if a medical evaluator has made findings about physical scars, fractures, or other conditions that have resulted from the alleged past persecution, the expert may be asked if they have assessed the likelihood that the harm resulted from causes other than the persecution alleged.

The asylum seeker’s attorney may object to any questions that they determine may be impermissible, irrelevant, or inappropriate. If an attorney objects to a question, the expert witness should refrain from answering (or stop talking, if the objection is raised mid-response) until the judge rules on the objection. Bear in mind, however, that rules of evidence are particularly relaxed in immigration court, and government trial attorneys have wide latitude in the types of questions they may ask.

When Proceedings Go Beyond the Immigration Court

It is helpful for the evaluator to know prior to conducting an evaluation what the context and scope of the legal matter at hand is, as they may alter the scope of their assessment, affidavit, and testimony in response. This matters for several reasons that should be considered in advance. Discovery and subpoenas may be more relevant in legal proceedings outside of immigration court. Unlike asylum hearings in immigration court, which are generally closed for the safety and comfort of the asylum seeker, parts of the federal district court proceedings may become public record unless placed under a protective order. In addition, the cross-examination process in federal district court may require more preparation because opposing counsel may have more time to prepare for and conduct a cross-examination, and the types of questions asked of the witness may differ as well.

Conclusion

Asylum seekers face a difficult task when they present their cases before an adjudicator. They must prove that they meet their burden of establishing the many eligibility requirements for asylum, and they must do so while presenting a believable, consistent, and chronological story, with corroboration from other forms of evidence. Many asylum seekers have had to flee without key documents, photographs, and other forms of evidence that could support their claims, and others, for safety reasons, must cut off ties with witnesses in their home countries. For this reason, affidavits and court testimony by medical and mental health professionals can be invaluable in assisting asylum seekers with the herculean task of demonstrating credibility and eligibility.

Evaluations for the purposes of establishing eligibility for asylum are different than evaluations performed for purposes of medical care. Limitations related to inflexible filing deadlines, access restrictions for detained asylum seekers, and lack of background information can complicate the evaluation process, but they also provide a singular view of the complex immigration system that asylum seekers must navigate in their attempt to secure safety and refuge. Through collaboration with attorneys, medical and mental health professionals use their expertise to help asylum seekers corroborate and explain their circumstances and can play a crucial role in supporting an asylum seekers desire for safety.