How Immigration Attorneys Can Bridge the Trauma Gap

By Brian Touna, J.D. Class of 2022

In my fourth week of Immigration Clinic, Dr. Craig Cashwell, Ph.D., from the W&M School of Education spoke to Clinic on trauma and how it affects the human brains from a scientific perspective. In just an hour, my entire perspective and understanding of trauma was completely changed. While I had some understanding that trauma has lasting effects on the human brain, I had no idea the extent to which trauma affects our ability to recall accurately, the ability to tolerate ordinary challenges of day-to-day life, and, frankly, how horrible the immigration process is for victims of trauma.

Dr. Cashwell explained that trauma can drastically affect our normal “window of tolerance” as well as our continuing ability to recall past events accurately. The window of tolerance is basically the zone where a person is capable of emotionally self-regulating in response to stimuli. This tolerance window is contrasted to the unstable states of hyper-arousal (think emotional “fight or flight” response) and hypo-arousal (think emotional “freeze” response). Interestingly, for victims of trauma, these states of hyper- or hypo-arousal are much more prone to occur from what may seem like innocuous stimuli, such as a certain smell or the tone of someone’s voice. With past trauma, often even a small similarity in a stimulus or a gentle hint to the past trauma can send a person into these emotional zones, what Dr. Cashwell refers to as being “activated.” This “activation” can simply be understood as the moment when our brains consciously or unconsciously perceive a threat and then quickly enter a state of hyper- or hypo-arousal.

This matters in the U.S. immigration context because so many people’s ability to obtain legal status often will hinge on the quality and credibility of their memories. This is especially true in the asylum context. Many aspects of the current immigration system expect victims to go into extraordinary detail about the violence they experienced accurately and often. Many paths to status require a victim of a crime, persecution, or even torture to not only to describe the traumatic harm received with their attorney but also to very likely have to repeat that in front of a skeptical adjudicator (and sometimes with an adversarial attorney to question their truthfulness). Moreover, the process expects consistency in a victim’s ability to recall the granular details of their past from what they first tell their attorney to what they swear to in an affidavit to finally what they say in front of an adjudicator. The trouble is that the asylum adjudication system is designed for a scientific reality that doesn’t exist. Trauma victims are not automatons operating in isolation. These are real people with real pain that can still deeply affect them when activated. Even if a victim might seem fine at first glance, activation through recalling past trauma will often completely change a person’s ability to appear grounded and relaxed. More importantly, this activation will often significantly inhibit an applicant’s ability to recall the details that the legal system considers necessary to decide their claims. The failure of an applicant to successfully recall information fully, accurately, and calmly all goes towards an adjudicator’s assessment of credibility. The system essentially requires an applicant to regulate their emotions and traumatic responses just perfectly for the adjudicator’s own tastes. Too slow to recall? Probably not credible. Too dissociated to appear emotional? Probably not credible. At a certain point are we asking victims to be victims, or are we really just asking trauma victims to hit their pause button to appease some preconceived notion of what their pain should look like?

These realizations led me to understand just how important trauma-informed interviewing and trauma-informed counseling is for most immigration clients. Most clients’ journey to the United States are ones of unthinkable trauma and challenge, and so our obligation is to find a way to use the details of that trauma to secure whatever immigration goal they are seeking without ignoring the reality of how that trauma likely affects them.

The W&M Immigration Clinic does an amazing job emphasizing exactly how to do just that. Of course, the Clinic is not able to avoid the realities of the legal process either; however, we can help ease our client into the process with preparation and conscious efforts to responsibly respect our client’s trauma. I have taken to heart the importance of not beginning an interview by skipping to most traumatic part to satiate my curiosity or interest in the relevant legal details. We have a duty to progress slowly and chronologically through our questions. We also need to frame questions in a way that reaffirms our belief in our clients. Asking a client “how did you know someone was who you say they are?” is probably only going to trigger insecurity and possibly hyper-arousal. It’s important for us as advocates to understand that our words and phrasing matter. We need to get details to build a client’s legal claims, but we also must be on constant guard to avoid any perception of seeming accusatory or insensitive to the pain of a client’s trauma. I appreciate how important it is to ask permission to proceed into various trauma-filled topics, and that sometimes it is just not a good day for the client to discuss the most painful parts of their past.

Regardless of whether I continue practicing in the immigration field after I graduate, I will always remember the importance of communicating to a trauma-victimized client a sense of personal empowerment through stream of permissions to proceed. I will always be aware that a trauma victim’s inconsistency is hardly an indicative of their credibility. Perhaps most importantly, I will always keep in mind the importance of preparing my client for the challenge that is facing an adjudicator or adversarial attorney. As the advocate for a trauma victim, I am always going to do everything I can to provide resources for the client as well as explain in detail to them what an adjudicator or adversarial attorney’s questions might look and sound like. Even if the system as a whole does not recognize the effect of trauma, I will be as much of a bridge in that gap as I can.