Derner Students as Expert Witnesses: The Adelphi Asylum Project

An Interview with Michael O’Loughlin

Derner Professor Michael O’Loughlin runs a program at Adelphi, where doc-toral students can train to conduct in-terviews and clinical examinations in order to write affidavits for asylum seekers under supervision by an Adelphi faculty member. The following is an interview about the program.

Michael O’Loughlin: I started volunteering with HealthRight International’s Human Rights Clinic in 2006. My colleague Carolyn Springer sent me an email asking if I might interested in this training. I participated in the training and began conducting asylum evaluations. I’ve completed an average of six or seven a year so, in total, I have completed 70 or 80 forensic evaluations. The way the asylum system worked in the past, at least, was the country had a quota, which was around 75,000 people per year. It seems like a large number, but really under the Geneva Convention, countries have obligations to take certain numbers in proportion to their size. There are really three organizations in the U.S. that do evaluations as expert witnesses to assist asylum seekers on a systematic basis, one of which is Physicians for Human Rights, Another is the Human Rights Clinic. They train volunteers who are licensed physicians and mental health workers to perform forensic evaluations. HealthRight is a New 

York based NGO that carries out humanitarian projects in a wide variety of developing countries. A small division of HealthRight is called the Human Rights Clinic, which was started by Eva Metalios, a physician at Montefiore Medical Center in the Bronx. She began by teaching her residents how to do evaluations and that became the nucleus of the Human Rights Clinic. She trains her residents to do physical exams for people who have been tortured or suffer from female genital mutilation and trainers like me train the residents to do forensic evaluations. 

In 2006, I began as a volunteer clinician for Health Right, conducting one evaluation every six or eight weeks typically. And then a few years after I started, I became a trainer for the Human Rights Clinic. I have trained residents at hospitals in New York City and at Buffalo Medical Center, and I have trained a wide variety of mental health professionals. Most recently, I performed a training for undergraduates in the Interpretation Certificate program in Adelphi’s Spanish Department, and nine of those students will now provide interpretation services for the Asylum Project. 

The typical individual who applies for asylum without assistance from a NGO like Health Right has a very low probability of success, maybe less than 10% – but certainly very low. Because the system is run as a quasijudicial system, the federal government has prosecuting attorneys. The purpose of these attorneys is to keep the numbers as low as possible. There has always been pressure to minimize success, but under President Trump this pressure is extreme. The federal attorneys are highly adversarial. If an asylum applicant appears in immigration proceedings without an attorney, their chances of successor extremely poor. I mean most people we see often aren’t fluent in English and they’re often not educated and they don’t have the capacity to explain their circumstances. And many of them might suffer emotional constriction from trauma, so even if they were educated, they might not be able to explain their circumstances. So there is a kind of underground railroad… a large network of NGOs that serve the many different needs of undocumented migrants and asylum seekers. In New York for example, the New York Center for Law and Justice serves the needs of deaf asylum applicants and refugees. 

Lily Swistel: It’s like all of these NGOs are integral to how the system works, but it’s not like the government funds this side of the system. 

MO: Ironically enough, they fund parts of it. HealthRight had funding for many years and the funding we got, we lost in the last funding round, and the funds were awarded to Buffalo Medical Center, where I actually trained their personnel. So the funding shifts around, but some parts of the government under some past presidents have had a vested interest in providing reasonable representation for people to help them navigate the system, and they won’t provide that service, but they’re willing to kick in some money to sponsor NGOs. Much like they would have a vested interest in assisting other kinds of charities that do needed work that then stops people being dependent on the government. They have a vested interest in it because it helps the population at large. Note, asylum seekers and refugees have no due process rights and no right to free legal representation, nor to having a lawyer present in court to represent them. 

People who come to us for evaluation, their chances of success in the asylum system go up to about 90% plus. It’s very high. They get two things: they get a forensic/psychological evaluation, a medical evaluation if indicated, and they get free legal aid from other pro bono donations by law firms, and by staffers from immigrant rights NGOs. So there’s a network of intersecting organizations. 

Faculty and student volunteers perform a forensic evaluation, draft an affidavit, and present expert witness testimony in immigration proceedings if required. A crucial feature of our role is that people who do this work are not advocates. The clients are not our patients. We are not allowed to work with them therapeutically because we are expert witnesses and as an expert witness, you have to try and collect the facts and make an argument from the facts, and so the forensic training that we give to our doctoral students focuses on how to assemble

facts and how to make an argument from evidence. If the facts aren’t there, you can’t make the argument. I’ve declined two out of the eighty or so cases I have been offered because I couldn’t find sufficient evidence that would lead to a satisfactory evidential affidavit. The forensic practice of doing this work, which is really helpful for doctoral students to learn, how to collect clinical forensic evidence, how to write a legal argument based on this evidence, negotiate the final draft with an attorney, and then testify in immigration proceedings if required.. 

LS: Tell me about where your clients are living – the ones who are awaiting a hearing, and are kept incarcerated? 

MO: In this area the biggest – they’re called immigration detention centers – is in Elizabeth, New Jersey. It’s a giant warehouse that has been converted into dormitories with bars on the windows, and there’s an average of 30 asylum applicants or undocumented migrants living in each room. It is set up a like a prison. You talk to a client through a plexiglass shield and you pick up a phone and talk. They live in group dorms, not individual cells, and so the stressors are enormous. There’s a multibillion dollar private business of incarceration firms running these facilities with very little supervision. For instance, a child died and there’s stories of children being tied to chairs and forcibly injected because they were recalcitrant and so on and there’s very little federal oversight. Detained children are required to receive a certain modicum of education. They’re only allowed to keep children a certain amount of days, but now the administration is trying to reverse this to have them detained indefinitely. Adults can be retained indefinitely. 

LS: What are the main policies that allow people to be granted asylum in the U.S.? 

MO: Traditionally the main reason people got asylum was political asylum and that was based upon being a dissident, having incurred the displeasure of an authoritarian government, having been part of a banned political party, or having been freedom fighter or some other political category. So, we got a lot of people for instance after the war in Yugoslavia, we got a lot of Kosovars and Croatians who fled because they were fearful they would be killed by the Serb government. We got a lot from Southeast Asia during wars there. Then they widened the category, some years ago to include people who were persecuted based on their gender identity and persecution based on sexual violence or domestic violence or people who feared gang violence, whose governments will not protect them. Now President Trump is trying to remove those categories, so that only political refugees can claim asylum. The traditional pattern, is that people – I’ve seen people from around the world – would flee their country with false documents and get on a plane to Kennedy airport, rip up their documents on the plane, walk off and say, I present myself as an asylum applicant. Under the Geneva Convention, the government is obligated to take them, take care of them and evaluate them. The same happens at the Mexican border. They’re supposed to take that person in, and I don’t know if this is happening anymore, but they are supposed to be administered what is a called a Credible Fear Interview, to see if they have credible fear of persecution. If they can establish credible fear – and the government is making it harder to establish – then the government is obligated to keep them in the country on a temporary status and put them through an immigration hearing to establish it, and that’s where we come in. 

Currently the U.S. administration wants to remove fear of gang violence completely as a credible fear, so, what happens is that you might fear that a gang is going to take you and coerce you or your child into a gang. That would be eliminated now as a criterion. The administration’s attitude is that every country has criminals, and so that is not our problem. If this posture is upheld they can hugely cut down the number of people from Central America and Mexico who present at the border. 

LS: How many clients you’ve interviewed had the credible fear of gangs? 

MO: It wasn’t that big in my work for 

many years. Mostly I saw people who were political refugees. But recently, since we have expanded the service by opening the Adelphi cAsylum Project, we’re getting a lot of referrals from Long Island and the majority of those referrals are for people who have fled from Central America and for them that’s the case. We have have thirty cases either completed or in progress, and we have had two successful judgments already on our first two cases 

LS: So do you know yet if with this new push from Trump to eliminate gang violence as a criterion, if we won’t be seeing those clients any more? 

MO: Well the good thing about attorneys, is that they’re good at finding loopholes. So as those criteria start to close, they’ll start to look for other criteria. 

If you are interested in training to become a volunteer forensic evaluator and expert witness at the Adelphi Asylum Project, under the supervision of an Adelphi faculty member, contact Dr. Michael O’Loughlin at oloughli@adelphi.edu. Training for new volunteers is held once