Donald Trump’s New Policies Could Make It Harder for Torture Survivors to Get Asylum

President Donald Trump’s Twitter rants this weekend about “dangerous caravans” of migrants approaching the United States were followed by an announcement on Monday that the White House will push for legislation to make it harder to seek asylum in the United States. It’s the latest in a string of decisions from the administration that have rattled the hopes of persecuted people looking for refuge in the country. Last month, Attorney General Jeff Sessions said that he will get rid of a policy that allows asylum-seekers to have a full hearing before an immigration judge — his method of streamlining a backlogged asylum system that he claims is subject to “rampant abuse and fraud” and “is being gamed.”

Despite the federal government’s new public skepticism about asylum-seekers, many of them have endured unspeakable violence, leaving psychological and physical scars. For torture survivors in particular, a forensic evaluation by a doctor is one of the best ways to prove the harm they suffered before arriving in the U.S., providing professional documentation of the persecution they faced back home — and likely would still face if they returned.

But advocates and lawyers are worried that not enough people are getting access to physical and psychological exams in a timely manner, and that the Trump administration’s policies to detain asylum-seekers by default and fast-track deportations are making the work more difficult.

A forensic evaluation is not mandatory to file for asylum, and it doesn’t mean it will be granted. But because they say it has become increasingly difficult to win an asylum case, more attorneys, like Jason Dzubow, a Washington-based immigration lawyer who blogs about asylum at The Asylumist, are seeking exams for their clients.

“For an asylum client who has visible evidence of torture or other harm, a forensic exam can make the difference between a grant and a denial.”

“For an asylum client who has visible evidence of torture or other harm, a forensic exam can make the difference between a grant and a denial,” says Dzubow. “A good forensic exam by a qualified physician demonstrates that the harm was caused by physical violence, as opposed to disease or even an accident. That type of solid evidence is very convincing to adjudicators, who rarely get strong corroborative evidence.”

The majority of exams are performed pro bono by medical professionals who receive specialized training from organizations like Physicians for Human Rights, or PHR, the largest provider and coordinator of forensic evaluations in the U.S. for the past two decades. They receive between 60 to 100 forensic evaluation requests every month, about half of which are for psychological examinations. While most New York City-area clients will be seen because there’s a density of providers who can perform forensic evaluations, fewer trained professionals exist in places like Houston or Los Angeles, says Homer Venters, of PHR. Around 90 percent of asylum-seekers who undergo a PHR evaluation are granted the right to remain in the United States, compared to just 43 percent overall. But Venters says that only about half of asylum-seekers manage to access a forensic evaluation at all.

Attorney General Jeff Sessions delivers a speech titled “The Crisis Facing Our Asylum System” at the Executive Office for Immigration Review, on October 12, 2017 in Falls Church, Virginia.

Diego was 16 and working as a fruit vendor in El Salvador when MS-13 gang members beat him and left him for dead after he refused their attempts to recruit him.

“There were seven guys right there, including El Pilon” — the local gang leader — “with guns, machetes, everything,” Diego told The Intercept in a phone interview. (“Diego” is a pseudonym, used to protect his family still in El Salvador.) “They were beating me in my in face, in my stomach. One guy he hit me in the head really bad. When I started talking again, he cut my right hand with a machete. It was bleeding everywhere.”

Diego survived, but after another run-in with MS-13, in which he witnessed a colleague shot in the head, he fled, traveling undocumented through Guatemala to Mexico, then entered the U.S. and settled in Virginia, where he applied for asylum. Thirteen years after arriving, he now has a wife, two daughters, and a semblance of normalcy. But painful memories live vividly in his mind.

“It’s really hard sometimes for me to speak about it because I try to forget everything and leave it behind, and just come into a new life,” he said.

As many as 1.3 million torture survivors have arrived in the U.S. as refugees since 1975, according to the St. Paul, Minnesota-based Center for Victims of Torture. Around that time, survivors were from Vietnam and Southeast Asia; in the 1980s and 90s, from the Balkans, including Bosnia and Croatia; today, they come from all over, but most asylum grantees are from China and from Honduras, Guatemala, and El Salvador, three countries marked deeply by gang violence.

The number of asylum-seekers who claim to have survived torture is unknown. In fiscal year 2017, 54,853 people were referred to U.S. Citizenship and Immigration Services for asylum interviews, and in 2016, the latest year for which data is available, 20,455 people were granted asylum in the U.S.

Alison Beckman at the Center for Victims of Torture said her team has seen survivors with severe eye damage from being made to stare at the sun, ongoing pain from forced tooth extraction, and trauma from sexual violence. “I had a client once who was handed a telephone and two relatives, his mother and his sister, were on the other line,” she said. “He was asked who should be the one tortured. [These are] impossible choices.”

Forensic evaluations aim to prove that someone meets the definition of a refugee: a person who can’t return home “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Trained medical professionals will talk to asylum-seekers about what happened, before carefully examining mind and body. They hope to match marks on the body to the details of their testimony. Diego has at least seven scars from his torture, discolorations from machete stabbings and pistol beatings. 

Someone might have trouble with their memory, or with testifying about their experience consistently, because of their experience. That could lead to questions around their credibility or raise suspicions that they are lying, said Judy London, a lawyer and teacher at the Asylum Clinic, a joint project between UCLA School of Law and Los Angeles-based law firm Public Counsel. 

“An expert evaluation can help with that, because it considerably boosts the credibility issue,” said London. “The psychological harm is part of the persecution. It’s relevant to demonstrating the harm they’ve suffered and the continued harm they fear.”

Forensic evaluations help buttress the legal case, and they can also make it easier for asylum-seekers to navigate the psychological breakdown that can be brought about by trauma. Diego, who underwent an evaluation last year and is now receiving psychological care, has been waiting four years for an update on his asylum case, and says his life is in limbo. He’s concerned about the presence of MS-13 gang members in the U.S., and is terrified for his family back home. “I’m really scared,” he said. “I’m not really sleeping.”

Syrian 10-year-old Amjud Moustafa Rifat uses his shirt to wipe away tears on Feb. 20, 2018, in Columbus, Ohio. His father, Rifat Moustafa, an international lawyer who says he was tortured for protesting human rights violations, was granted asylum; his wife and four other children followed in 2016, before President Donald Trump was elected.

Immigration attorneys say they’ve seen a definite shift in how asylum policies are enforced under the Trump administration. Previously, asylum-seekers who entered the country and did not have a criminal record or any hint of a criminal wrongdoing would generally not be held while they waited for their case to be heard. Similarly, those whose appeals were denied would usually not be detained during the appeals process. That’s changing, with more asylum-seekers locked up, and for longer. Families are increasingly separated in detention, and there have also been allegations of people being turned away at the border or pressured to retract their statements of fear.

In fact, border officials and Immigration and Customs Enforcement agents have become so aggressive with the detention of asylum-seekers that attorneys say they are left with less time and flexibility to help their clients obtain the exam that could make their case.

Petra Veras-Rizwan, a Massachusetts-based immigration attorney, is hopeful that a forensic evaluation will benefit her client, an indigenous woman from Guatemala who sought asylum after fleeing ongoing violence, but a long detention has delayed the process.

The woman’s original request for asylum was denied, and she tried to appeal the decision. Unbeknownst to her, the appeal filed by her previous lawyer never reached the government, either because it was lost or late. Some time later, the woman presented herself for a routine check-in and was detained by ICE because there was no record of her appeal. ICE held her from October 2017 until March 2018, when she was released on bond.

Prolonged detention was potentially dangerous for the woman because she’s recovering from a gunshot wound in her leg and dealing with a blood-clotting condition, anxiety, and depression. Veras-Rizwan said her client is a perfect example of how ICE is abusing its recently expanded power: She doesn’t have an order of deportation, is in an appeals process, and doesn’t have a criminal record, but was being held in a facility that isn’t equipped to deal with her illnesses.

“I know it will help her case,” Veras-Rizwan said of a medical evaluation. While she was never prevented from accessing her client, getting an exam in detention is very difficult, Veras-Rizwan said, because getting a doctor to perform the evaluation requires permission from the county jail. She also needed a translator, as her client doesn’t speak any English. Free for now, the woman will get an evaluation at a provider’s office.

A Customs and Border Protection official told The Intercept that the agency “has not changed any policies affecting asylum procedures,” and that it “adheres to law and policy on processing asylum claims and does not tolerate abuse of these policies.” ICE press secretary Jennifer D. Elzea said in a statement: “Aliens processed for removal may receive their legal due process from federal immigration judges in the immigration courts.” She added that “immigration judges in these courts make decisions based on the merits of each individual case. ICE officers carry out the removal decisions made by the federal immigration judges.”

Despite this official insistence that nothing has changed, advocates and lawyers worry that their access will be more limited and their work made harder.

“I don’t think we know how bad it can be,” Venters says.

One solution might be performing more evaluations in detention centers — the L.A.-based Program for Victims of Torture recently received funding for that very purpose — or even on the other side of the U.S. border. Dzubow said evidence collected before asylum-seekers reach America could help a case, but might not be given as much weight as an evaluation that takes place inside the U.S.

“When you’re living under this threat of constantly being returned to your country, to potentially be tortured again or even killed, there’s no ‘post’ in post-traumatic stress.”

Supporting survivors of torture has historically been an issue championed by both sides. The Torture Victims Relief Act of 1998 was reauthorized and amended last year to authorize $25 million a year for fiscal years 2018 and 2019 to fund treatment centers for victims of torture. But calls for “extreme vetting,” travel bans, and constant shifts around immigration policy have sent many asylum-seekers into a spiral of despair. Those who have survived torture continue to be hypervigilant and afraid in their new surroundings. Some who are allowed to remain in the United States as their status is being processed are now afraid to sign up for health insurance or go to the emergency room for fear of being flagged, said Beckman, of the Center for Victims of Torture.

“We talk about our clients have post-traumatic stress disorder, but when you’re living under this threat of constantly being returned to your country, to potentially be tortured again or even killed, there’s no ‘post’ in post-traumatic stress,” she said. “To be able to feel safe is a precursor for healing, and this climate is making it tough.”

Meanwhile, torture survivors like Diego will continue living in a suspended reality until the final decision is made in their asylum case. They’ll work and take care of their families, reminded of what they escaped with each glimpse of a scar.

“I try to forget everything,” Diego said. “I just want to live my life with my daughters in peace.”

Top photo: Emergency personnel put a woman on a stretcher after relatives helped her walk to a police station on Aug. 20, 2017, in La Lima, Honduras. In Honduras, rival gangs, including MS-13 and Barrio 18, tightly control territory, earning money from extortion and drug trafficking.