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Medicine Meets the Law: When a Psychological Evaluation Means the Difference between Asylum and Deportation

Mike Corradini, JD on November 8, 2012

man in holding cell

When people make the decision to escape the torture and persecution they’ve suffered in their home countries by fleeing to the US, many have no idea that they have only one year from the time they arrive to apply for asylum.

This “one-year bar (pdf) to asylum – which violates our international obligations to accept asylum seekers – prevents thousands of refugees every year from receiving the protection they need. Though the Obama administration has announced its support for repealing the one-year bar, efforts to overturn this harmful and unnecessary provision have met with obstruction in Congress.

But the one-year bar is not absolute; if asylum seekers can show that circumstances in their home countries have changed since they left such that they now need to apply for asylum, even after living more than one year in the US, or that extraordinary circumstances prevented them from filing an application within one year of their arrival, the government may still grant them asylum.

The “extraordinary circumstances” exception, while broadly written, has been interpreted narrowly by the government. But advocates have long argued that psychological trauma caused by torture and persecution can have such a detrimental effect on asylum seekers that it can amount to an exceptional circumstance that keeps them from applying for asylum within one year of their arrival.

Aside from asylum seekers’ reluctance to describe the worst thing that has ever happened to them to a government official, many also suffer from post-traumatic stress disorder (PTSD) or other psychological trauma that makes them unable to begin the complicated asylum process.

Recently, the University of Connecticut Law School’s Asylum and Human Rights Clinic won an important victory at the Board of Immigration Appeals (BIA) on behalf of an asylum seeker who had been subjected to female genital cutting as a child. Although she came to the US in 2000, “A.C.” did not apply for asylum until 2005.

During that period, she experienced significant pain when having sexual relations with her husband. Though the pain was later diagnosed as resulting from the genital cutting she underwent as a child, she had been raised to believe that genital cutting was a normal and harmless procedure. This unexplained pain, in addition to three difficult pregnancies, caused her great stress. Only in 2005 did she become aware of the harm caused by female genital cutting, which prompted her to immediately apply for asylum. A psychological evaluation conducted after she submitted her application revealed that A.C. suffered from PTSD.

A.C. was initially denied asylum by the immigration judge and the BIA. The Second Circuit Court of Appeals in New York, NY, then remanded her case for a new hearing, at which the immigration judge again found that she had not met the “extraordinary circumstances” exception to the one-year bar. But six years after A.C. initially applied for asylum, the BIA held (pdf) that her PTSD, combined with other effects of the female genital cutting she suffered, excused her late filing, and she was granted asylum.

A.C.’s case illustrates the byzantine procedures asylum seekers have to navigate once they decide to seek protection in the US. But it also stands as an important reminder that psychological trauma can be at least as debilitating as physical harm.

As more lawyers use forensic psychological evaluations of asylum seekers to argue that psychological trauma prevented them from applying for asylum within one year, advocates are hoping that cases like A.C.’s will point the way toward a broader definition of “extraordinary circumstances.” But until the one-year bar is repealed, survivors of persecution and torture will continue to be unjustly denied asylum based on this arbitrary deadline.

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Submitted by Melissa at 04:51 PM on November 26, 2012
It is easy to forget why people come to the United States, especially in the middle/right after political elections. However, we must try to remember and remain sympathetic to the hardships and experiences these refugees have faced and continue to deal with due to the situation in their home countries. The process which needs to be taken to claim asylum in the United States needs to be more easily accessible to refugees in order to ensure their stay in the United States. Hopefully, in taking these measures, we can help those in need of a safe and secure home.
Submitted by Kathy at 03:43 PM on November 15, 2012
Really appreciated this post! Its definitely important to think about cultural sensitivity and the impact of personal traumatic experiences when doing psych evals of refugees. Hopefully the asylum process can be streamlined and made more accessible to those refugees and survivors of torture/persecution. This one-year bar certainly seems unreasonable. This matter is also pretty relevant to one of our blog posts from a little while ago,a bout the need to redefine psychiatric care specifically when dealing with refugees: -- Kathy Wang Editorial Assistant, HHR Journal