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The One Reason Asylum-Seekers Aren’t Offered Free Legal Counsel—And Why It Needs To Change

The One Reason Asylum-Seekers Aren’t Offered Free Legal Counsel—And Why It Needs To Change

Each year about 100,000 people come to the United States seeking asylum because of persecution due to their race, religion, nationality, membership in a particular social group or political opinion. These are protected classes. The Biden Administration recently announced a plan to transform the U.S. immigration system in order to make it more equitable. If the administration is serious about creating positive change, it is time to provide asylum seekers with free legal representation.

Our justice system requires people seeking asylum to prove they have experienced persecution and trauma due to membership in one of these protected classes. They must do this while navigating a complex legal system, and dealing with the effects of trauma that led them to seek asylum. Fewer than 40% of asylum seekers have access to legal representation, meaning most represent themselves. The result is almost always the denial of asylum and an order of deportation, mostly of women and children. 

Free legal counsel is relatively new to the U.S. In 1963 the Supreme Court determined that it was a violation of the sixth amendment to not offer universal free legal counsel to defendants in criminal cases. Prior to this, many critics argued providing free legal counsel would be too expensive and asked who would absorb the costs. More than 50 years later, free legal counsel has become a pillar of our justice system proving if an expense is deemed socially necessary, money is allocated to that cause. 

Because immigration law falls under the civil penal code, asylum seekers are not afforded free legal representation. Today, the U.S. constitution guarantees free legal representation to people accused of crimes that can lead to imprisonment. Convictions in civil court do not lead to imprisonment and therefore asylum seekers do not have access to free legal counsel. As a result, children as young as two have represented themselves in immigration court. Approximately 90% of asylum seekers who do not have legal representation have their claims rejected. By contrast, the majority of asylum seekers represented by an attorney receive asylum. This denial of free legal representation means asylum seekers who are impacted by the negative psychological effects of trauma are forced to self-represent themselves in court. 

Trauma has profound negative effects on aspects of the brain including sustained difficulty with concentration, basic and complex organization skills and the inability to remember important events related to traumatic experiences. Indeed, these types of neurological deficits are common in posttraumatic stress disorder (PTSD), which affects asylum seekers at high rates. The neurological and psychological impacts of traumas associated with many asylum seekers’ claims makes it extremely difficult, if not impossible, to effectively represent oneself in immigration court. Preparing any legal case requires immense focus, attention to detail and the ability to understand, interpret and organize complex legal theory and procedural information. Without legal representation most people, especially those experiencing the neurological and psychological effects of trauma, will not succeed.

Asylum officers and judges often establish credibility of an asylum claim by examining the consistency of applicant’s oral and written narratives. Asylum seekers retell their trauma histories multiple times outloud, sometimes to hostile parties, prior to a courts final determination of asylum. It is not unexpected or unusual for someone with a trauma history to inconsistently remember a timeline of events, or to potentially remember details or additional events in one interview sitting, but not another. This is consistent with the constellation of symptoms associated with post-traumatic stress disorder. Yet, asylum officers and judges sometimes see these inconsistencies as evidence that an applicant is untruthful about their trauma history and fear of persecution. Issues with memory, organization and planning are both typical and normal responses to trauma. Indeed, suppressing aspects of traumatic memories is a normative coping process. Attorneys can help asylum seekers present a comprehensive case to the court that explains why these types of symptoms may support a claim of past trauma and persecution. Without legal representation, these trauma symptoms may be construed as evidence that the asylum seeker is being dishonest. 

Critics who argue that U.S. taxpayers should not bear the cost of legal representation for asylum seekers, need to remember that the Constitution applies to all people in the U.S. Creating a federally funded legal aid system for asylum seekers might seem like an expensive proposition, but the number of people seeking asylum in the U.S. each year is only a fraction of the number of criminal cases filed at the federal and state level. 

As a clinical psychologist, I spent the last decade providing psychological assessment and therapy to dozens of immigrants, including children, young adults and families seeking asylum. They suffer various degrees of trauma before reaching the U.S. Because their cases are not heard in criminal court they are not provided free legal representation even though the stakes are just as high. For many asylum seekers returning to their home country results in assault or death. By not providing them with free legal representation, we fail to be the country our constitution was built on. As the Biden Administration renews the national conversation about creating an equitable immigration system, providing asylum seekers with free legal representation should be a priority.

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