Ripples Against the Other Shore: The Impact of Trauma Exposure on the Immigration Process through Adjudicators

Kate Aschenbrenner December, 2013

Immigration is currently a hot topic; discussion of immigration reform and the problems in our current system appear in the news virtually every day. There is widespread consensus that our current immigration system is “broken,” but there is little agreement on why and even less on what should be done to fix it. These are difficult and important questions, involving many complex interrelated factors. While I do not hope and cannot aim to answer them completely in this Article, I will argue that in doing so we must consider an often overlooked and generally understudied issue: the effects of trauma exposure in our immigration process and specifically on our immigration adjudicators, that is, immigration judges, Board of Immigration Appeals members, and United States Citizenship and Immigration Services officers. Despite the little attention paid to the effects of trauma exposure, this is a topic of great importance. If our goal is to have an immigration system that not only operates fairly and efficiently but also has a positive effect on all participants—noncitizens, attorneys, adjudicators, and other officials, among them—we must consider the ways that our current system causes psychological harm to those involved. Evidence of this harm in our legal system is abundant. It can be seen in the stories of noncitizens caught up in our immigration process, in the high levels of distress suffered by attorneys and judges, in the criticism of immigration judges and other officials, and in the general dysfunction of our immigration system. At the same time, the causes for this harm are only infrequently discussed. This Article will highlight one cause of such harm: trauma exposure. I have multiple goals for this Article. First, I want to continue the important work begun by the many others cited throughout the article of normalizing the discussion of the emotional dimension of lawyering and its impact in and on our legal system. Second, I want to highlight the very significant impact of a particular aspect of this emotional dimension, trauma, on the immigration process by exploring its effect on immigration adjudicators. Finally, I intend to set the stage for a future Article that will consider reforms to the immigration system to better manage the impact of trauma exposure.

Introduction

Despite the little attention paid to the effects of trauma exposure, this is a topic of great importance. If our goal is to have an immigration system that not only operates fairly and efficiently but also has a positive effect on all participants¹—noncitizens,² attorneys, adjudicators, and other officials, among them—we must consider the ways that our current system causes psychological harm to those involved. Evidence of this harm in our legal system is abundant. It can be seen in the stories of noncitizens caught up in our immigration process, in the high levels of distress suffered by attorneys and judges, in the criticism of immigration judges and other officials, and in the general dysfunction of our immigration system. At the same time, the causes for this harm are only infrequently discussed. This Article will highlight one cause of such harm: trauma exposure.

I have multiple goals for this Article. First, I want to continue the important work begun by the many others cited throughout the article of normalizing the discussion of the emotional dimension of lawyering and its impact in and on our legal system.³ Second, I want to highlight the very significant impact of a particular aspect of this emotional dimension, trauma, on the immigration process by exploring its effect on immigration adjudicators. Finally, I intend to set the stage for a future article that will consider reforms to the immigration system to better manage the impact of trauma exposure.

Part I of this Article first introduces the concepts of trauma and trauma exposure and discusses their effects generally. Part II then shifts to focus on trauma exposure in the immigration system specifically: Part II.A explains the numerous ways in which noncitizens may experience trauma and Part II.B identifies immigration adjudicators that may be exposed to this trauma and how that contact occurs. Part II.B also considers various structural issues within the relevant agencies, the Executive Office for Immigration Review and the Department of Homeland Security, that may affect or be interrelated with the impact of trauma exposure. Finally, Part III explores evidence of just how such trauma exposure affects the immigration process and all participants in it, including identifying areas in which further study would be particularly beneficial. The Article concludes that exposure to trauma and the impact of that exposure on the immigration process is a significant aspect of the psychological harm to all participants caused by the immigration system. Continuing to overlook the impacts of this trauma exposure will be detrimental to the immigration adjudicators themselves, to other participants, and to the immigration system as a whole.

I. Traumaand Trauma Exposure

Trauma and trauma exposure are not concepts that have broad-based understanding or use in the legal field. Even in the mental health context, where trauma is considered to be a more central idea, different experts use varying terminology and definitions. Before considering the impact of trauma exposure in the immigration process, then, it is important to be clear on what we are talking about. Part I.A considers existing definitions of trauma and problems with those definitions before reaching working language and definitions for purposes of this Article. The remainder of Part I expands on this understanding of trauma to set the stage for a discussion of trauma’s impact in the immigration system. Part I.B explains the effects of trauma on those who are directly exposed. Part I.C explores how wide-ranging those effects are, that is, the extent to which trauma exposure impacts not only those who experience it first-hand but also those who experience it indirectly through their work with those exposed directly. This expanded understanding of trauma and trauma exposure will be used to frame the Article’s discussion in subsequent sections of noncitizens’ experiences of trauma and the impact of such experiences on those charged with adjudicating noncitizens’ immigration cases.

A. What is Trauma?

There is no comprehensive agreement on what constitutes trauma, or even on how to define the term. Basic dictionary definitions illustrate the complexity of the concept, defining trauma as both “a deeply distressing or disturbing experience” and an “emotional shock following a stressful event or a physical injury, which may lead to long-term neurosis.”⁴ The word trauma thus clearly has multiple components; it is used to refer to a negative event itself, to an individual’s experience of that event, and to the impact the event has on the individual.⁵ This is sometimes referred to in shorthand as the “three Es” of trauma: event, experience, and effect.⁶

Diagnostic definitions also reflect differing conceptions of trauma, in particular with respect to how extreme an experience must be to qualify. The fourth edition of the Diagnostic and Statistical Manual of Mental Dis-orders, the DSM-IV-TR, adopted a relatively narrow definition of trauma in the context of posttraumatic stress disorder (PTSD). The DSM-IV-TR defines trauma as the:

direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate.⁷

In the context of PTSD, the individual experiencing the trauma must also react with “intense fear, helplessness, or horror.”⁸ Potentially traumatic events under this definition include “military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness.”⁹

However, the prior version of the DSM, the DSM-III, more broadly defined what qualified as trauma, including threats to psychological integrity in addition to life-threatening stressors in its definition.¹⁰ In the DSM- IV, these less extreme threats would be included under the diagnosis of Adjustment Disorder.¹¹ Adjustment Disorder also includes threats to life that would otherwise qualify for a diagnosis of PTSD but where the individual does not exhibit the other symptoms necessary for a PTSD diagnosis.¹² Outside the formal diagnostic context, many professionals, at least in some contexts, do not limit trauma to serious threats to life but instead also include less extreme threats within the meaning of trauma.¹³

A second part of this question involves whether the magnitude of a threat should be judged by some outside standard or by the subjective experience of the individual affected. Jean Koh Peters, a clinical professor who has studied and written extensively on trauma exposure, explained this part of the issue as follows:

There are two widely accepted definitions of trauma. One is that someone has been confronted with or experienced a potentially dangerous situation that could lead to a grievous loss and feels helplessness and powerlessness. That is sometimes called the objective definition, which talks about the objective standard requiring an experience where death or grievous harm was involved and a sense of helplessness. The second definition, called the subjective definition, is where people say that the event that was confronted was non-normative, and the person felt subjectively overwhelmed by it. This type of trauma does not require serious harm or risk of death.¹⁴

An additional complicating factor in trying to define trauma involves its relationship to other environmental impacts such as stress. At its essence, stress is “a disrupted interaction between environmental demands on the one hand, and the needs and skills of the individual on the other.”¹⁵ That is, stress occurs under circumstances where an individual’s needs are not being met or where environmental demands are beyond the current skills of an individual to handle. Just as there is little agreement on what actually constitutes trauma, there is no consensus on how to differentiate trauma from stress.¹⁶ Jean Koh Peters again explains this part of the debate:

Some suggest that stress is the large category of which trauma is one extreme subset. This camp suggests that “stress and trauma are not two independent concepts, but rather two overlapping concepts; stress has a much broader meaning.” Others suggest that stress and trauma are on a continuum but are distinct in kind.¹⁷

The same question of relationship can be raised for other related psychological phenomena, including burnout, anxiety, and depression. This is a particularly difficult question; given our current knowledge of trauma, stress, and these other phenomena, it may not be possible to answer it definitively and comprehensively. We do know that exposure to non-traumatic stressors may make an individual more vulnerable to the effects of trauma and vice versa.¹⁸ Furthermore, it is important to recognize that all of these possible descriptions of these relationships share a common identifying factor: they are fuzzy at the boundaries. It is not possible to pinpoint with any kind of precision just where the effects of trauma leave off and the effects of stress or burnout or anxiety begin.¹⁹

For purposes of this Article, there is no need to conclusively answer any of these questions. It should be clear that events that are less than life threatening can nevertheless have a significant influence on individuals that are affected, both directly and indirectly, by them and that this impact on any given individual will differ based on a myriad of possible factors. Furthermore, for all practical purposes, it will be difficult if not impossible to draw clear lines between the impact and effects of trauma and those of stress and other psychological phenomena regardless of how we understand the relationships among them. Since this Article is focused on the impact on the immigration process and its participants, and not on formal mental health diagnoses, it will consider trauma and associated psychological phenomena in the broadest sense discussed above. That is, for purposes of this Article, trauma will be understood to include events that threaten life and both physical and psychological integrity and events that are subjectively experienced as posing such risks even in circumstances where such a response may not be objectively reasonable. Where the effects of stress and other related disorders and issues cannot be precisely delineated from those of trauma, or stress and other related disorders may make an individual more likely to be impacted by trauma, the Article will err on the side of including consideration of those effects.

B. What are the Effects of Trauma?

Exposure to trauma may manifest itself in a number of symptoms, but these symptoms typically follow a particular and predictable pattern. In fact, “[r]esearchers have noted that the range of human response to overwhelming and uncontrollable life events is remarkably consistent.”²⁰ Jean Koh Peters summarized this pattern of response as follows:

Survivors of trauma are expected to experience a wide range of emotions oscillating between two poles: a tendency, on one hand, to re-experience the trauma with overwhelming reactions to the traumatic material and a general hyper-reactivity to stimuli and, on the other hand, numbing through avoidance of stimuli related to the trauma. This “bimodal” oscillation creates a sense of disruption or disintegration within the trauma survivor who literally feels too much at some times and nothing at others.²¹

For the purposes of this Article, one of the most important aspects of this common response to trauma is that it is disorienting. That is, trauma disrupts our commonly held schema, our frames of reference, or ways of organizing and understanding the world around us.²² As Koh Peters explains, “trauma disrupts and attacks the self. It disintegrates your sense of who you are, what you hold dear, and what you believe.”²³ Furthermore, “[t]rauma directly attacks the ideas of good in human nature and safety in the world.”²⁴ Trauma may also decrease a belief in one’s own efficacy and control in those exposed, negatively affecting confidence in self and destabilizing one’s sense of the future.²⁵

Responses to trauma may manifest physically as difficulty in falling or staying asleep, an exaggerated startle response, angry outbursts, or physiological responses when exposed to reminders of the traumatic event.²⁶ Other physical symptoms may include chronic pain, problems with the digestive and cardiopulmonary systems, and effects on one’s sexual life.²⁷

Symptoms may also exhibit themselves psychologically. Such psychological symptoms may be obviously related to the traumatic event, such as recurrent and intrusive recollections of the event, including flashbacks, dissociation, or nightmares; intense psychological distress when exposed to stimuli associated with the trauma; or avoidance of such stimuli. Psychological symptoms may also manifest more generally. At the one pole, these symptoms may include increased anxiety and arousal generally, hypervigilance, irritability, and inability to concentrate or complete tasks. At the other pole, general symptoms may manifest as overall psychological numbing, including loss of interest in previously enjoyed activities, detachment from others, and restricted emotional affect.²⁸ Some have also noted an effect on the spirituality of those exposed to trauma, which relates back to trauma’s disorienting effect.²⁹ Spirituality, defined broadly as faith in and understanding of a connection with something beyond one’s own self, may be challenged by evidence that the world is not always just, that bad things happen to good people, and that we cannot always control what happens to us.³⁰

Physical and psychological manifestations of trauma may differ culturally, which is particularly important to remember in the context of immigrants and refugees. Culture, as used here, not only refers to the obvious impact of ethnicity, race, and nationality, but also to all aspects of a per-son’s background and life that may affect his or her outlook on the world or behavior in a particular situation, including such things as age, birth order, gender, sexual orientation, marital status, socio-economic status, level of education, language, religion, physical characteristics, and a variety of other factors.³¹ As a result of one or more of these factors, noncitizens may describe or exhibit what they are experiencing differently than we would expect based on the possible symptoms listed above. For example, individuals from some cultures may be more likely to express strong emotions as physical complaints rather than psychological manifestations.³² Illustrating how cultural differences may impact responses to trauma, Posttraumatic Stress Disorder itself has been criticized as an irrelevant and unhelpful Western social construct, in part because of its focus on Western medical treatment rather than on addressing an individual’s situation holistically.³³

Even setting aside these cultural differences, not all individuals who experience a traumatic event will be affected in exactly the same way or with the same intensity. For example, the DSM-IV explains that only up to between one-third and one-half of those exposed to a specific traumatic incident will develop PTSD.³⁴ Interestingly, the DSM-IV does also note that “[i]ndividuals who have recently emigrated from areas of considerable social unrest and civil conflict may have elevated rates of Posttraumatic Stress Disorder . . . [and] may be especially reluctant to divulge experiences of trauma and torture . . . .”³⁵ It is also important to remember that, as previously noted, an individual may be impacted, sometimes profoundly so, by exposure to trauma even when their response does not meet the diagnostic criteria for PTSD, an Adjustment Disorder, or another defined diagnosis. Regardless of formal diagnoses, it is highly likely that all individuals affected by trauma will display some set of the symptoms laid out above; exactly which ones, their intensity and duration, and when and how they are displayed will vary from person to person.³⁶

Given the nature of these effects of exposure to trauma, then, it should be clear that trauma may profoundly affect the way an individual relates to others in all aspects of his or her life. The fundamental and potentially wide ranging impact of such effects highlights why it is so critical to recognize and address the role that trauma plays in our legal system and specifically in the immigration process.

C. How Wide-Ranging is the Impact of Trauma Exposure?

Because the effects of experiencing a traumatic event are so significant, it is important to consider whether and how these effects extend beyond an individual directly exposed, beyond the primary victim. In order to provide a basis for the subsequent examination of trauma exposure in immigration adjudicators, this subsection will begin to explore existing work on secondary or vicarious exposure to trauma generally and its effects on those so exposed.

Individuals who work with primary trauma victims may begin to demonstrate some of the very same physiological and psychological symptoms as the victims themselves, in both the short term and the long term. This phenomenon was first considered and written about in the mental health field.³⁷ It is still most commonly described as an effect that occurs to those working in “helping professions” such as psychologists and other mental health workers, social workers, and law enforcement.³⁸ Its applicability and impacts are now being explored in other fields as well, including the legal field. As awareness of the issue has grown, the literature from both the mental health and the legal perspective has expanded significantly. Particularly in the legal field, however, where even the effects of trauma on a primary victim gets insufficient recognition, the idea that trauma might also have some secondary effects has not gained mainstream acknowledgment or support.

Before continuing this discussion, I think it is important to pause to note that recognizing that those who work with victims of trauma in some capacity may be affected by indirect exposure to that trauma should not be seen as in any way minimizing or discounting the experiences of those who suffer primary exposure to trauma. Nothing in this Article is intended to suggest that the effects of secondary exposure to trauma approach even remotely the experience of the effects on those who experience trauma more directly. However, secondary trauma remains a critical topic in itself. In the legal context, awareness of and attention to the effects of indirect trauma exposure is necessary in order to provide effective assistance to primary victims, to fairly and justly adjudicate all legal matters, and to avoid unnecessarily increasing the negative effects of trauma on primary victims. As Koh Peters explains:

The lawyer’s and the client’s interests here are not at odds; they run parallel. The lawyer who fails to mitigate the negative effects of stress and vicarious traumatization in his or her life and practice ends up harming the client as well as himself or herself. The lawyer who addresses these occupational hazards and harnesses the positive effects, particularly of vicarious traumatization, can benefit both himself or herself and the client.³⁹

1. Terminology

At the core of the idea that trauma has secondary effects is an understanding that we are affected by others’ pain and the experience(s) that caused that pain.⁴⁰ These effects may manifest themselves in different ways and have been given different names by those who study them.⁴¹ Dr. Charles Figley, a psychologist, professor of social work, and expert in traumatology, is widely regarded as one of the first and still preeminent scholars in the field of secondary trauma exposure.⁴² His works discuss “secondary traumatic stress disorder”⁴³ and “compassion fatigue.”⁴⁴ Figley defines secondary traumatic stress disorder as “the natural consequent behaviors and emotions resulting from knowing about a traumatizing event experienced by a significant other––the stress resulting from helping or wanting to help a traumatized or suffering person.”⁴⁵ It is a syndrome similar to PTSD, with similar, although often less severe, symptoms that result from indirect, rather than direct, exposure to trauma.⁴⁶ These two terms remain frequently used in the mental health field, while “Secondary Traumatic Stress” has also been adopted in the legal context: an article by Ann E. Freedman, a professor of law and public interest lawyer, addressed its occurrence in those who work on civil domestic violence cases.⁴⁷

Other experts, such as Lisa McCann, Laurie Anne Pearlman, and Karen W. Saakvine, clinical psychologists and trauma experts who are also pioneers in this field, as well as Jean Koh Peters, instead use the term “vicarious trauma” or “vicarious traumatization.”⁴⁸ Pearlman and Saakvine define vicarious trauma as “the transformation in the inner experience of the helper as a result of empathic engagement with survivor clients and their trauma material.”⁴⁹ “Secondary trauma” is also sometimes employed.⁵⁰ Laura van Dernoot Lipsky and Connie Burk propose an alternative framework for describing these effects, labeling them “trauma exposure response” and advocating for what they call “trauma stewardship.”⁵¹ Van Dernoot Lipsky describes trauma exposure response as follows:

I reached a deep understanding of how our exposure to the suffering of others takes a toll on us personally and professionally. The depth, scope, and causes are different for everyone, but the fact that we are affected by the suffering of others and of our planet––that we have a trauma exposure response ––is universal.⁵²

Trauma stewardship, then, means managing this response in a responsible way that minimizes the harm that our trauma exposure may cause to both to our self and to others and instead strives towards having a positive, healing impact. It “refers to the entire conversation about how we come to do this work, how we are affected by it, and how we make sense of and learn from our experiences.”⁵³ Lipsky and Burk emphasize that stewardship encompasses a concept of “taking care ‘in a way that takes full and balanced account of the interests of society, future generations, and other species, as well as of private needs, and accepts significant answerability to society.’”⁵⁴ This means that “as stewards, we create a space for and honor others’ hardship and suffering, and yet we do not assume their pain as our own.”⁵⁵

I understand both vicarious trauma and secondary trauma as somewhat broader, less clinical, concepts than “secondary traumatic stress” and “secondary traumatic stress disorder.” They are accurate and useful descriptions. In several respects, however, for purposes of this Article, trauma exposure and trauma exposure response are more appealing labels. They encompass all levels and types of reactions, not necessitating a judgment as to whether a particular reaction is severe enough or meets the definition to be qualified as a clinical manifestation of a defined diagnosis. Furthermore, they are straightforward and non-technical, which makes them more likely to be meaningful to a more general audience of immigration attorneys and adjudicators.

Perhaps most importantly, these labels emphasize more clearly than the alternatives that there is not a bright line between direct and indirect, primary and secondary, exposure to trauma. The DSM-IV itself recognizes a continuum along which trauma exposure may lead to PTSD, including the witnessing of traumatic experiences of others—for example, experiencing, observing, and learning about a violent personal assault are all given as possible triggering traumatic stressors.⁵⁶ Those who write about trauma frequently use the imagery of a boulder dropped into a river,⁵⁷ or a stone thrown into a still pond,⁵⁸ and the resulting ripple effect to illustrate how trauma may affect even those at some remove from the initial impact, or primary exposure. While the ripples further away from the boulder or stone may be somewhat less in speed and intensity, they are not different in nature or kind.

Using the term “trauma exposure” further helps to avoid making a faulty, and possibly damaging, division between noncitizens and helping professionals. There is an already problematic phenomenon of depicting the non-citizen as different, or “other,”⁵⁹ that the subject matter, and even the organization, of this Article could inadvertently reinforce. Avoiding imposition of such arbitrarily drawn distinctions is a particularly important factor in the immigration context at the heart of this Article, especially when those distinctions are between noncitizens and a helping professional. Using the term “trauma exposure,” then, helps avoid making this faulty and damaging division by not drawing an explicit distinction between the trauma suffered by clients and the trauma suffered by those who help them—while the effects may differ in intensity and appearance, they do not differ in kind.

Because of the comparative advantages of these two descriptions, I have chosen to primarily use trauma exposure and trauma exposure response throughout this Article. Because of the prevalence of the use of the terms vicarious and secondary trauma in the legal context, and the fact that I understand the meaning of all three to be essentially the same, however, I will also occasionally employ them as well. As discussed above, I am concerned with the impact of trauma in an expansive sense, not just in its more narrow clinical manifestations. My use of any of these terms, then, should be understood in that sense.

2. The Nature of Trauma Exposure Response

This subsection will introduce both the individual and the systemic effects of trauma exposure response to lay the foundation for the discussion of the impact of these effects on adjudicators in the immigration process and on the process itself. As previously mentioned, trauma exposure response is most commonly acknowledged as a phenomenon affecting professionals tasked explicitly with helping individuals cope directly with traumatic events such as mental health professionals, social workers, and law enforcement officials.⁶⁰ These helping professionals share certain core characteristics, specifically, as the name suggests, a professional duty to assist trauma victims and a concomitant responsibility for particular out-comes. Because attorneys and adjudicators⁶¹ also share these same core characteristics, they have, and will for the purposes of this Article, be considered part of this group of helping professionals.⁶² Like with any trauma exposure, helping professionals who are exposed to trauma will not all be affected in the same way. Nevertheless, certain general conclusions can be drawn about the impact of trauma exposure on attorneys, including adjudicators, and on the legal system.

Individually, the symptoms and impact of trauma exposure response mirror the response pattern for more direct trauma discussed previously. That is, affected individuals will swing between the poles of hyper-reactivity/hyper-arousal and avoidance/numbness.⁶³ It may seem surprising, or even an over-exaggeration, to say that individuals who are vicariously exposed to trauma may suffer some of the very same symptoms as those who are directly exposed. In fact, however, existing research supports just this conclusion.⁶⁴ Trauma exposure does not divide neatly into two groups: those exposed directly and those exposed secondarily. Instead, as discussed in the previous subsection, it is better understood as occurring along a spectrum ranging, for example, from the direct victim of a violent crime through a witness to that crime and close family members of the victim to the law enforcement officer who investigates the case and the prosecutor of the perpetrator. Again, this is not intended to minimize the effects of traumatic experiences on those who are exposed to trauma more directly.⁶⁵ Less direct exposure may, and often will, result in symptoms that, while the same in kind, are much lesser in degree and cause significantly less impairment.

In helping professionals, this response pattern to trauma exposure frequently manifests as anxiety, intrusive thoughts, difficulty concentrating, prolonged feelings of sadness or grief, a sense of futility or pessimism about people, lethargy, isolation, anger, aggression, irritability, avoidance of or over-involvement in work, fatigue or sleep disturbance, and physical complaints such as headache, hives or rashes, heartburn, other gastrointestinal symptoms, or frequent illness such as colds or the flu.⁶⁶ These symptoms affect the helping professional within and beyond the work context in which the symptoms originated.⁶⁷

As previously mentioned, I intend to concentrate on the impact of trauma in this Article, but because it is impossible to completely separate out the impacts of each phenomenon on any given individual some consideration of these other stressors will also inevitably occur.⁶⁸ Just as in the discussion of trauma itself, trauma exposure has a great deal of overlap with other stressors that impact helping professionals like attorneys and adjudicators. Attorneys and adjudicators are of course regularly confronted with stress—that is, circumstances that outstrip their skills or resources or otherwise result in their needs not being met.⁶⁹ More specific manifestations of these stressors are variously labeled as compassion fatigue or burnout. Compassion fatigue is “the cumulative physical, emotional, and psychological effects of being continually exposed to traumatic stories or events when working in a helping capacity.”⁷⁰ Similarly, burnout, while a somewhat “imprecise term,”⁷¹ has been defined as “[t]he cumulative effect of . . . chronic everyday stress and chronic everyday strain”⁷² or “the accumulation of stress and the erosion of idealism resulting from intensive contact with clients.”⁷³ Compassion fatigue and burnout differ from trauma exposure in a number of important ways.⁷⁴ First, they are triggered by multiple, broad ranging stressors and not just by trauma specifically. Second, they are focused on the impact of these stressors over an extended period of time, while trauma exposure may have an effect after just a single experience.⁷⁵ Attorneys may also be diagnosed with other mental health disorders, including depression and anxiety, which are both impacted by and have an effect on their work.

On a systemic level, the impact of trauma exposure is somewhat more difficult to trace. In her book on trauma stewardship, Van Dernoot Lipsky starts from a belief, “rooted in life experience and years of study and professional practice, that our capacity to help others and the environment is greatest when we are willing, able, and even determined to be helped ourselves.”⁷⁶ The converse, then, is also true—when any individual has unaddressed trauma exposure his ability to help others and positively impact the world around him is reduced. As the number of individuals with unaddressed trauma exposure increases, the negative impact on our society, the systems within it, and all those who encounter those systems multiply. The harms of trauma exposure radiate just like its effects,⁷⁷ but as the distance from the initial impact increases it becomes somewhat more difficult to ascribe those effects to trauma rather than some other factor or combination of factors. However, as the discussion in Parts II and III will demonstrate, trauma exposure is causing harm in the immigration system through its effect on adjudicators.

II. Trauma Exposure in the Immigration System

Part II of this Article will apply the above discussion of the nature and range of trauma exposure to the immigration system and specifically to immigration adjudicators. Part II.A will survey the various traumatic experiences that noncitizens may be exposed to. Part II.B will then discuss the structure and functions of portions of two of the federal administrative agencies charged with executing U.S. immigration law to show how adjudicators in the immigration process are exposed to the traumatic experiences of the noncitizens appearing in front of them. This framework will provide the basis for the examination in Part III of the ways in which this trauma exposure affects individual adjudicators and, through them, the immigration system.

A. Noncitizens Experience Trauma

Studies have shown that around fifty percent of the general population in the United States has been exposed to at least one traumatic event.⁷⁸ While no specific studies on this point have been done, there is no reason to suspect that the percentage of the population of noncitizens in the United States that have been exposed to trauma is any smaller. In fact, depending on the circumstances in a noncitizen’s home country as well as the manner of the noncitizen’s migration, the percentage of the noncitizen population with at least one traumatic experience may be higher than the percentage of the citizen population.⁷⁹ Regardless, noncitizens in the United States, just like any other segment of the population, are likely to have experienced some form of trauma in their lives. Various authors have addressed the trauma experiences of various groups of immigrants—particularly refugees and asylees,⁸⁰ victims of domestic violence, and unaccompanied or abandoned children. Because little has been written about the trauma experiences of noncitizens outside these relatively limited groups, however, this section will survey various ways in which trauma arises in the lives of noncitizens more generally.

In some cases, trauma is an integral part of the individual’s participation in the immigration process. Trauma can be the reason that an individual is allowed to enter the United States or the basis itself for an application for an immigration benefit or relief from removal. Traumatic experiences may lead to permanent immigration status in the United States. For example, refugees and asylees come to the United States fleeing from persecution or a fear of persecution in their home countries.⁸¹ Persecution by definition means “the infliction of suffering or harm,” and often involves traumatic experiences such as forced imprisonment, sexual assault, beat-ings, and other forms of torture.⁸² Women or men who were battered or subjected to extreme cruelty by their legal permanent resident or United States citizen spouse or parent may seek to self-petition or request cancellation of removal under the Violence Against Women Act.⁸³ The phrase battery and extreme cruelty also encompasses trauma, as it “includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.”⁸⁴ Children seeking Special Immigration Juvenile Status (SIJS) must have been abused, abandoned, or neglected by their parents.⁸⁵

Some temporary immigration statuses are also based on traumatic experiences. T visa holders, for example, must be present in the United States as a result of a severe form of trafficking in persons in order to qualify.⁸⁶ “Severe forms of trafficking in persons” include both sex trafficking and trafficking for purposes of forced labor.⁸⁷ Similarly, victims of violent crimes such as rape and other sexual crimes, torture, trafficking and related offenses, domestic violence, female genital mutilation, false imprisonment and similar crimes, manslaughter, murder, or felonious assault who assist in the investigation or prosecution of the offender may apply for U visas for themselves and their derivative spouses and children.⁸⁸ In order to obtain a U visa, an applicant must prove that they have “suffered substantial physical or mental abuse” as a result of the relevant crime.⁸⁹ Beneficiaries of temporary protected status are allowed to remain in the United States because of a natural disaster or civic unrest in their home countries.⁹⁰ Noncitizens seeking any one of these named statuses, then, have necessarily been directly exposed to at least one, and potentially many, traumatic events.

An experience of trauma may be a motivating factor in a decision to come to the United States even when it is not directly related to an application for immigration status. Historically, even outside of the refugee context, migration to the United States is frequently driven by the desire to have a better life than would be available in one’s country of birth or current residence. Often, that means migration from countries with ongoing economic, social or political challenges or some other situation that creates profound instability for citizens and residents.

Noncitizens, and particularly those without legal documentation, may experience trauma en route to the United States; the trip itself can be extremely harrowing and dangerous. Individuals traveling by land through some Central American countries and Mexico often travel as essentially stowaways riding on the roofs of trains or with the help of smugglers, also known as coyotes.⁹¹ The train taken by many migrants is known as the “Train of Death” and poses its own risks.⁹² The trains themselves are treacherous. Migrants are caught beneath the wheels of the train; they are seriously injured and even killed when they unsuccessfully try to jump on to the train; and they fall from the roof of the train where they ride to their death due to hunger, dehydration, and fatigue. Criminal gangs and immigration and law enforcement officials target the migrants throughout their journey, robbing, kidnapping, beating and raping them. Traveling with smugglers is no safer, as smuggling operations are increasingly controlled with impunity by the major Mexican drug cartels and subject to the serious risk of violence, rape, and trafficking with which these cartels operate. None of these migrants are safe until they reach the border to the United States.

Entering the United States by land through the Southern border is not the only route of entry that may entail traumatic experiences. Cubans, Haitians, and some other Caribbean migrants may travel to the United States by boat from their home country or other Caribbean nations. These boats are often small and ill equipped for the conditions and weather they will face en route; migrants die as a result of exposure, weather conditions, or starvation or dehydration before they even reach the United States. The boats may also be run by smugglers or drug or human traffickers and rife with the violence and intimidation used to control such operations. Chinese migrants also historically entered the United States via boat, smuggled by individuals known as snakeheads. For example, passengers on the infamous Golden Venture faced terror and life threatening conditions on their way to the United States; ten died when the ship was deliberately run aground three hundred yards offshore from a beach in Queens, New York.⁹³ Migrants entering the United States from further away may face traumatic journeys before even reaching the American continent. For example, a group of young men who were part of a group known as the lost boys of Sudan walked thousands of miles as children to escape ethnic extermination, confronting starvation, dehydration, and disease, attacks by natural predators such as lions, threats from enemy soldiers, and death along the way.⁹⁴ Their experience may be an extreme example, but such traumatic experiences in a lesser degree are not uncommon.

To some degree all noncitizens have experienced trauma. They have left their homes, families, cultures, and all that was familiar and have had to adjust to a new, and often very different, country. Jean Koh Peters, commenting on children being removed from their home by child protective services, talks about the profound impact that leaving home can have, describing it as “an extreme subjective sense of tragic loss, loss of all that is familiar, loss of a sense of home, safety, identity, and meaning.”⁹⁵ While children being forcibly removed from their homes and parents may in some respects be more vulnerable and more affected by this experience, these same impacts may occur for noncitizens voluntarily leaving home, even when the transition is in large part positive and welcomed.⁹⁶ The impacts may be magnified by the cultural and other differences faced by immigrants trying to adjust to the United States, and by the lack of support that they may have here in dealing with them. In fact, in a study done of Iraqi refugees, a lack of social support was a stronger predictor for the development and severity of PTSD than even such things as trauma factors and depression.⁹⁷ While of course not all citizens will experience permanently leaving home for a new life as a traumatic event, and the impact on those who do will vary widely, for many this means “their sense of integrity is being assaulted” and “their sense of home is disintegrating or being destroyed.”⁹⁸ Such effects are sufficiently disorienting that simply leaving one’s home should be treated as a traumatic event.

For all participants, even those whose applications are not based on any kind of traumatic event, the immigration process itself can be traumatic. Immigration law and procedure are difficult and complex, and there is a lack of transparency for even the informed observer. Noncitizens may not have, or know whether they have, any available immigration options. Those without options face a choice between remaining undocumented in the United States with the attendant serious difficulties of having no legal status or returning to their home country, which may mean separation from family, economic deprivation—or worse. Even for those who are lucky enough to have a route to remain in the United States legally, there is a high degree of uncertainty in the process, with no guarantees that any application for legal status or to remain in the country will be approved. While immigration law is federal law, and in theory will apply identically throughout the country, in practice there are significant differences in the way the federal circuits interpret the law; the law may thus differ, even radically, depending on geographical location or origination of the case. The consequences of the outcome of the process are life changing, potentially determining how, where, and with whom one will live the rest of his or her life. This insecurity can drag on for extended periods of time. While the process is ongoing, a noncitizen may be separated from and unable even to see their family. They may be unable to work or drive legally and struggling to find a way to support themselves. They may even be detained, a particularly traumatic consequence of removal proceedings: “[D]etention causes severe mental and physical anguish. One study found that 86% of detainees exhibited symptoms of depression, 77% exhibited symptoms of anxiety, 50% exhibited symptoms of post-traumatic stress disorder, and approximately 25% reported suicidal thoughts.”⁹⁹

Despite the complexity and harsh consequences of immigration law and procedure, noncitizens have no right to counsel at government expense and thus will be represented only if they are able to find and, in most cases afford, an attorney or other authorized representative.¹⁰⁰ Even with legal representation, the immigration process can be profoundly frustrating, degrading, and dehumanizing for noncitizen applicants and respondents.

Finally, a noncitizen, just like other members of the population, may have experienced trauma entirely unrelated to the immigration process. For example, he or she may have served in the military during times of conflict, may have been affected by a terrorist attack, may have survived a natural disaster like a tornado or hurricane, may have lost his or her home to a fire or other manmade disaster, may have been in a serious automobile or other transportation accident, or may have been diagnosed, or had a family member diagnosed, with a life-threatening illness.¹⁰¹ Noncitizens are not immune to these general traumatic events that affect many without regard to country of origin and citizenship status.

In addition, particularly for indigent noncitizens, the circumstances of their daily lives may themselves be traumatic or closely approach trauma. As Koh Peters explains:

The client in the center of the raging river may experience stress as a result of his interactions with any one of a number of factors, ranging from specific factors such as his familial economic situation and interactions with his family, the legal system, and the social service system, to larger factors including poverty, racism, and violence in his community. The client feels the rigors of living in such a challenging, chaotic, and hard-to-control environment, day to day. For many of our clients, daily life itself can challenge their full capacities to the extreme.¹⁰²

This is one example of where the line between stress generally and trauma specifically is particularly difficult to draw. Such circumstances will not always meet even a broad definition of trauma, but in some, perhaps many, situations and settings they will in fact present very real threats of death, injury, or other serious damage to physical or psychological well-being.

B. Immigration Adjudicators Are Exposed to Noncitizen Trauma

Given the prevalence of traumatic experiences of noncitizens as dis-cussed in the previous subsection, it would be difficult for an attorney, a law student, or another legal representative to take on even a small number of immigration clients and not be exposed to trauma. Although the same is true for attorneys who work for the government on immigration cases in various capacities, this fact is somewhat less commonly acknowledged and explored. These government actors might be judges in the Immigration Courts, board members at the Board of Immigration Appeals, adjudicating officers from United States Citizenship and Immigration Services (US- CIS),¹⁰³ attorneys from the Office of the Chief Counsel for USCIS, or other attorneys in the Department of Homeland Security, among other positions.¹⁰⁴

Despite the high likelihood that trauma exposure will occur for any attorney working in the immigration field, few studies have been done on trauma exposure in this context. In fact, the number of studies on trauma exposure in attorneys in general is comparatively limited.¹⁰⁵ In response to this lack of data and his informal observations while working with attorneys, Dr. Andrew Levin, a professor of psychiatry specializing in psychological trauma, undertook a survey of secondary trauma and burnout in legal and mental health professionals that included attorneys working in the family and criminal law fields.¹⁰⁶ In addition to Dr. Levin’s initial survey, studies have been done on prosecutors working on cases involving domestic violence and incest¹⁰⁷ and on several groups of judges.¹⁰⁸ Dr. Levin himself also did a follow up study on law students who were representing victims of domestic violence in a law school clinical program.¹⁰⁹ None of these studies, however, involved attorneys working on immigration cases. Only a single study has been done specifically on immigration judges; in 2007, several psychiatrists and other mental health professionals collaborated with two immigration judges on a study and subsequent articles focused on stress, trauma, and burnout in immigration judges.¹¹⁰

A number of reasons have been posited for the relatively limited attention paid to trauma exposure in the legal field. First, recognition that working with clients who have suffered trauma affects helping professionals is a relatively new phenomenon in any field.¹¹¹ It is not surprising that this concept would take longer to gain traction and acceptance in a field like the law than in a mental health field already well versed in the effects of trauma generally. Marjorie Silver, a professor of law, offers a deeper possible explanation of this phenomenon:

[W]hereas those working in helping professions such as psychotherapists and social workers are trained to expect transference and countertransference reactions in their relations with their clients, lawyers are trained to assume that the only things relevant to their relationships with their clients are how well they know the law and how well they can read and apply it. . . . [N]either legal education nor the profession do anything in any way to counteract that in training lawyers to think they don’t have to worry about those psychological issues and those emotional issues.¹¹²

In short, “[t]he emotional costs of lawyering are rarely considered worthy of mainstream legal discussion.”¹¹³ Lawyers may underreport their own symptoms of trauma exposure because, consciously or unconsciously, they see attention to the role of such emotional factors as “not merely weak, but downright unlawyerlike”¹¹⁴ or simply because they are not trained to recognize such symptoms for what they are.¹¹⁵ Such underreporting could obscure the need for additional studies on trauma exposure in the legal field.

These reasons do not explain, however, why, even within the legal context, focus has been primarily on the practice of family law, particularly in the area of domestic violence, and criminal law, while relatively little attention has been paid to trauma exposure in the immigration field. This is somewhat surprising, given the obvious incidence of trauma in well-known areas of immigration law like refugee and asylum law. A qualitative study on the backgrounds and careers of private immigration law-yers in New York City suggests that little is known about immigration lawyers generally because of their perceived low stature: “Immigration lawyers help some of the most marginalized and subordinated members of society. And despite working in, and through, a complex area of administrative law, these lawyers tend themselves to receive little respect within the legal profession.”¹¹⁶ Popular perception of immigration attorneys alone, however, cannot completely explain this neglect.

In any event, despite the relative paucity of formal, empirical studies in the legal, and particularly the immigration law context, enough information does exist to draw some conclusions about the effect of trauma exposure on attorneys who have a role in immigration cases and thus are involved with the immigration process as a whole.¹¹⁷ Dr. Levin suggests that there are two valuable strands of work to consult for this purpose.¹¹⁸ The first is a rich clinical legal literature addressing topics such as the role of the attorney and other legal actors, the attorney-client relationship, and trauma.¹¹⁹ These works contain anecdotal accounts of the impact of trauma exposure and burnout on immigration and other attorneys.¹²⁰ The second is literature (also largely from the clinical legal context) addressing substance abuse, mental illness, and other distress in attorneys.¹²¹ While the work in this second strand primarily either attributes these mental health issues to legal work generally or discusses them without reference to causation, they may, at least in some instances, also be manifestations of unaddressed trauma exposure. Finally, I will also draw on my own experiences as a practicing public interest immigration attorney and as a clinical professor and fellow in several immigration clinics. In conjunction with the studies referenced above and the psychological literature discussed in Part I, these sources together reveal much about trauma exposure of attorneys working in various capacities within the immigration system.

It should be noted that there are also many non-attorneys working on behalf of noncitizens or for the government in an immigration capacity who are exposed to trauma. For purposes of this Article, however, I will focus on trauma exposure in attorneys and others acting in quasi-attorney roles. I define “quasi-attorney” roles as those in which an individual must apply the law to the facts of a noncitizen’s case in order to either argue for or decide on a particular outcome.¹²² This focus will help begin to highlight and fill the gap identified above and will allow a particular focus on facets of the legal profession and characteristics of legal practitioners that may impact the effects of trauma exposure.

As the single formal study on the trauma exposure of immigration judges highlights, less attention has been focused overall on adjudicators than on attorneys representing immigrants. I will thus further focus in this Article on attorneys working for the government in an adjudicatory capacity because there is insufficient awareness of and appreciation for the effects of trauma exposure on them.¹²³

While immigration judges, board members, and adjudicating officers and counsel for USCIS may not meet the usual definition of a helping professional as obviously as, for example, a mental health counselor or a social worker, they nevertheless should be understood as fitting within this category when considering trauma exposure and its effects—as adjudicators, they must elicit and understand traumatic experiences from the noncitizens who appear before them, and they have a responsibility to “help” those noncitizens by determining whether they meet some legal standard that would allow them to remain legally in the United States.¹²⁴ These adjudicators’ position as a helper is somewhat complicated by the fact that they cannot simply decide who they would like to allow to stay in the United States or who would benefit by being allowed to do so. They are constrained by the law, and the law does not provide for relief from removal for all noncitizens, even those who have suffered traumatic experiences.¹²⁵ As a result, adjudicators must send some noncitizens back to countries where they have suffered trauma and others back to countries where they certainly will. Nevertheless, the exposure to and effect of trauma on Immigration Judges (IJs) can usefully be compared to that of other helping professionals due to the similarities in their functions and roles at the most basic level.¹²⁶

The impact of unaddressed trauma exposure in government attorneys working in adjudicative capacities is also particularly important to address precisely because of the role that such attorneys play—they encounter significant numbers of noncitizens on a daily basis, and their decision making capacities in immigration cases give them extraordinary power and control over the lives of noncitizens.¹²⁷ In fact, because there is no right to representation at government expense for noncitizens in the immigration process,¹²⁸ the adjudicator may be the only helping professional that the noncitizen encounters. As the first article about the 2007 Lustig Study on immigration judges points out, while “[i]n an ideal world, an applicant’s likelihood of obtaining asylum would depend only upon the merits of the case,” in reality a considerable number of other factors influence this outcome.¹²⁹ While not yet studied, trauma exposure response may be another factor influencing asylum grant rates for several reasons pointed out by the Lustig article:

The ability of judges to hear cases empathically is critically important to a fair asylum hearing, but may be made difficult or impossible by high rates of secondary traumatic stress (STS) caused by the huge volume of human misery . . . to which Immigration Judges are subjected . . . . Symptoms of stress and burnout include cynicism and detachment which could affect judges’ perceptions of asylum seekers’ credibility.¹³⁰

While only asylum claims have been studied at any length, it is reasonable to extrapolate that factors outside the merits of a claim, including trauma exposure response, will also affect outcomes in other types of applications for immigration benefits.

Even if trauma exposure response is not shown to statistically affect outcomes in immigration cases, however, managing its effect on the immigration process remains important. First, the impact on the IJs themselves personally and professionally is profound and worthy of attention alone.¹³¹ Furthermore, as the Lustig study suggests, “court proceedings would be more efficient and stress free for the parties involved if burnout and stress among judges were reduced.”¹³² Reducing the impact of secondary traumatic stress on adjudicators could help to eliminate some of the more egregious examples of intolerance toward noncitizens discussed below as well as some less easily traceable and less publicized negative effects of the immigration process discussed above.¹³³

In order to more fully explore exposure to trauma and other relevant factors, I have divided government attorneys working in an adjudicative capacity in to several different categories based first on the agency that they work for and second on the attorneys’ respective roles and functions. Those categories are: (1) The Executive Office for Immigration Review (EOIR), focused on (a) immigration judges and (b) Board of Immigration Appeals members; and (2) USCIS, focused on (a) adjudicating officers and (b) attorneys in the Chief Counsel’s Office. In discussing each category, I will begin by explaining the context that the attorneys work in and the tasks that they are likely to perform on a regular basis. Next, I will provide any available information about the exposure to trauma of attorneys in each category. Finally, after discussing each of the individual categories, I will address the effect of trauma exposure on this group as a whole, both on the individual attorneys and the particular portion of the system that they work within. Where limited information is available, I will extrapolate likely effects based on the numerous sources discussed in the introduction to this section. This discussion will highlight just how significant the effects of trauma exposure on immigration adjudicators are and lay the groundwork for Part III’s consideration of the impact these effects may have on the immigration system as a whole.

1. Department of Justice—Executive Office for Immigration Review

Immigration judges (IJs) and members of the Board of Immigration Appeals (BIA or “Board”) are part of the Executive Office for Immigration Review (EOIR) in the Department of Justice and are designated their power by the Attorney General of the United States. Immigration judges preside over removal proceedings in Immigration Court, which are hear-ings to determine whether noncitizens charged as either inadmissible or deportable by the Department of Homeland Security may remain in the United States or must be removed to their country of citizenship or origin. Board Members hear appeals of IJ decisions in removal proceedings as well as certain other appeals at the BIA. Simply speaking, then, immigration judges sit in courts that function essentially as trial level courts, while the Board of Immigration Appeals acts as the appellate court for their decisions. Despite their names and appearances, however, Immigration Courts and the BIA are not Article III or even Article I courts, but are instead administrative agencies within the executive branch.¹³⁴

a. Immigration Judges

As of April 2013, there are 260 immigration judges that sit in fifty-nine Immigration Courts across the United States.¹³⁵ Approximately seventeen of these Courts and thirty-eight of these IJs are located physically within immigration detention facilities or state, local, or county jails that are contracted with the federal government to hold U.S. Immigration and Customs Enforcement (ICE) detainees and/or hear exclusively cases of detained noncitizens.¹³⁶ Because a number of the non-detained Courts also hear detained cases by videoconference, it is difficult to calculate exactly how many IJs regularly preside over removal proceedings for detained noncitizens.¹³⁷ Detained cases represent a significant portion of the Immigration Courts’ caseload, however; 36 percent of case completions in fiscal year 2012 involved detained noncitizens.¹³⁸

In addition to the IJs, thirteen Assistant Chief Immigration Judges (“ACIJs”) work under the Chief Immigration Judge to supervise and direct the work of the Immigration Courts.¹³⁹ Discussion of trauma exposure in this subsection will not focus on the ACIJs as their responsibilities are primarily administrative in nature and they do not regularly hear cases.

Immigration judges come to the bench through a variety of different routes and have somewhat diverse backgrounds.¹⁴⁰ Most IJs have some (many significant) government work experience, primarily federal but some state as well. Many have worked as government attorneys in removal proceedings through the Office of the Chief Counsel or its predecessor. They may also have been employed by some other subcomponent of the Department of Homeland Security such as Immigration and Customs Enforcement (“ICE”), ICE Enforcement and Removal Operations (“ERO”) or Customs and Border Protection (“CBP”) or the former Immigration and Naturalization Service. Others were military attorneys or judges or worked for the government in some other non-immigration related capacity. Some IJs come from careers in private practice or even nonprofits rep-resenting noncitizens. It is important to note, however, that political hiring of immigration judges has almost certainly affected the composition of the immigration judge corps.¹⁴¹

New immigration judges may have significant immigration experience from their prior work in private practice or for the Department of Homeland Security, but they may also bring with them virtually no knowledge of immigration law and practice. They may have substantial experience working with traumatized individuals, or none at all. They may already accept that emotions in general and trauma exposure in particular may affect not only them on a personal level but also their work as judges, or they may never have been exposed to this concept. It is important that any analysis of this group and implementation of reform, then, not simply treat immigration judges as a monolithic group, but take into account their differing backgrounds, personal and professional experiences, and personalities and individual characteristics.

An immigration judges’ job is highly stressful for a variety of reasons, including the nature of the work as well as the structure and context in which it occurs. IJs spend the vast majority of their time in court physically presiding over removal proceedings, making decisions about whether noncitizens should be released on bond, whether they are removable as charged, and whether they are eligible for some form of immigration benefit or other relief from removal—all high-stakes decisions for the noncitizens involved.¹⁴² These decisions are made in a relatively formal and constrained setting. The size and appearance of immigration courtrooms varies, but they typically resemble a smaller state or local courtroom. For example, the IJ wears a robe and sits at his bench. The proceedings are adversarial in nature, with a government attorney appearing to argue the government’s position against the noncitizen. The front portion of the courtroom is divided by a bar from a small gallery with benches for those who are waiting for their hearings or the public when permitted to sit; the courtrooms are often overcrowded and may be somewhat chaotic.

There are three different types of hearings in Immigration Court: bond hearings, master calendar hearings, and individual hearings.¹⁴³ Bond hearings allow detained noncitizens to ask the IJ to set a bond or reconsider the bond set by the Department of Homeland Security that, if paid, would allow them to be released from detention while their removal proceedings are ongoing. Master calendar hearings most resemble an arraignment, where the noncitizen pleads to the charges of removal against her in the Notice to Appear and requests relief from removal if any is available or sought, or a status hearing, where applications for relief may be filed and the scheduling and logistics of the individual hearing can be discussed, but other matters may be addressed as well. During a single morning or afternoon block set aside for master calendar hearings, an IJ may have numerous noncitizen respondents scheduled for hearings.¹⁴⁴ Individual hearings proceed like a bench trial or evidentiary hearing in state or federal court.¹⁴⁵ Depending on the type of case and complexity of the issue presented, these hearings may last anywhere from as short as under an hour to as long as days and even weeks. In a typical week, an immigration judge will have a single morning or afternoon block free for all preparation and follow up work on cases, including making decisions on numerous written motions, reviewing voluminous document submissions in support of applications before the court, researching complex questions of law, and writing decisions in some of their cases. The remainder of the work days will have hearings scheduled essentially back to back for the vast majority of the day, meaning that even on days when an IJ is scheduled for individual hearings he may see and render decisions in cases for multiple respondents.

The caseload and backlog in the Immigration Courts continue to grow.¹⁴⁶ During the first three months of 2013, the average time that an individual currently in removal proceedings has been waiting on a decision in his or her case has grown from 550 days¹⁴⁷ to 555 days.¹⁴⁸ Cases in which a removal order is eventually entered now take an average of 261 days to complete, while cases in which relief from removal is ultimately granted now are pending before the Immigration Court on average 839 days, or more than two and a quarter years.¹⁴⁹ IJs have only quite limited support staff to assist in the completion of their work. In most courts, each immigration judge has a non-attorney legal assistant who performs primarily administrative tasks. Immigration judges do not have individual career or term attorney clerks; instead each Immigration Court is assigned recent law graduate clerks for two year terms through the Honors Program.¹⁵⁰ An Immigration Court may also have several short term law student interns or externs.

The federal government sequester is likely to have a significant negative impact on these already existing issues. As Attorney General Holder explained in a recent letter to the Senate Appropriations Committee:

The sequestration would cut over $15 million from EOIR’s current budget. EOIR would be forced to cease all hiring of key critical positions for EOIR’s immigration courts, including Immigration Judges, likely increasing pending caseloads to well over 350,000 (an increase of 6 percent over September 2012 levels). EOIR would also be forced to reduce contracts for critical services, such as interpreters, legal support, and information technology. Sequestration would require the rescheduling of immigration cases for aliens who are not in detention even further into the future (into 2017). It would also result in delays for aliens in immigration detention and individuals seeking asylum protection.¹⁵¹

Doris Meissner of the Migration Policy Institute estimates that if judges and court clerks are required to take a furlough one day each week it will reduce productivity for EOIR by about 20 percent.¹⁵²

Despite the high caseload and limited support, there is pressure on immigration judges to complete cases quickly. Prior to January 2010, immigration judges were subject to general case completion goals.¹⁵³ These goals were widely criticized as “unrealistic and arbitrary” and were cited by immigration judges as a particularly difficult aspect of their work.¹⁵⁴ They were eliminated in January 2010 purportedly in order to focus resources on detained and asylum claims.¹⁵⁵ The Office of the Inspector General for the Department of Justice and others have recommended that some form of completion goals be reinstated for non-detained cases.¹⁵⁶

The elimination of the system of case completion goals did not removal all time pressure on IJs. Two specific types of cases—the complicated system of expedited asylum claims created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and all cases involving noncitizens detained at the expense of the federal government— are still subject to explicit time constraints. Removal proceedings involving all detained noncitizens operate on an expedited docket.¹⁵⁷

Some applications for asylum must also be expedited. In an attempt to cut down on allegedly baseless asylum claims filed for the purpose of obtaining employment authorization, IIRIRA established a system whereby asylum applicants are not entitled to employment authorization until their claims have been pending for 180 days, exclusive of any delay caused by them, and administrative adjudication of asylum claims must be completed within that 180 day period absent exceptional circumstances.¹⁵⁸ 33,881 of the 44,170 asylum claims completed in fiscal year 2012 fell into this expedited category.¹⁵⁹ The system to calculate the 180 day time frame, and therefore which cases fall into this category, is known as the “asylum clock.”¹⁶⁰ Even when general case completion goals were still in effect, immigration judges identified the asylum clock as a particular source of stress in their work.¹⁶¹

Even setting aside trauma exposure, then, IJs work in difficult conditions and under high amounts of stress. Their decisions on a daily and hourly basis have life changing, and sometimes life threatening, consequences for the immigrants that appear before them.¹⁶² These non-traumatic stressors may make IJs more vulnerable to the impact of trauma exposure and may increase the effect of trauma exposure on individual IJs and on the immigration process.¹⁶³ On top of these other stressors, IJs are unquestionably exposed to trauma through the life stories of the noncitizens who appear before them. First, traumatic experiences may arise in the course of an IJ’s decision with regard to whether a noncitizen before the IJ is removable as charged. Noncitizens may be charged as removable, both inadmissible and deportable, as the result of certain criminal convictions.¹⁶⁴ While typically this decision is made on the basis of the conviction and criminal statute alone, without any reference to the underlying facts of the offense, there are some exceptions to this rule.¹⁶⁵ IJs deciding whether someone is removable for a crime of domestic violence,¹⁶⁶ or in some circuits and cases a crime involving moral turpitude,¹⁶⁷ will have to inquire into the circumstances of the crime and the victim, thus exposing the IJ to the trauma of those circumstances. As described above, trauma is also the basis for some applications for relief from removal made before IJs. Among other types of cases, IJs hear applications for asylum and VAWA cancellation of removal, and review USCIS decisions on applications for temporary protected status.

Publically available statistics of cases heard by the Immigration Courts do not allow for precise identification of how many cases before each individual immigration judge involve applications for relief based on trauma exposure.¹⁶⁸ For example, applications for cancellation of removal generally are tracked, but are not separated out into the various different bases for the application, including under VAWA.¹⁶⁹ Some relevant quantitative observations can still be made, however—particularly with regard to claims for asylum, which are tracked separately.

Only a very small number of temporary protected status (TPS) applications are reviewed by immigration judges; for fiscal year 2012, only 2,080 applications for TPS were completed.¹⁷⁰ The numbers for asylum claims are much higher. While overall numbers of asylum applications filed with the Immigration Court decreased last fiscal year,¹⁷¹ IJs continue to hear a significant number of asylum and related claims. Nationally during fiscal year 2012, 44,170 cases were received by the immigration courts and 44,282 were completed.¹⁷² If each immigration judge heard an equal number of claims for asylum, this case completion number works out to be approximately 170 cases per IJ, or about one asylum case each working day and half all year.¹⁷³

However, claims for asylum are not distributed evenly across the fifty-nine Immigration Courts and 260 immigration judges.¹⁷⁴ Just six of the fifty-nine Immigration Courts—New York, New York; Los Angeles, California; San Francisco, California; Newark, New Jersey; Miami, Florida; and Orlando, Florida—handled the majority of the claims for asylum and for relief under the Convention Against Torture decided throughout the country during fiscal year 2012.¹⁷⁵ The caseloads of asylum claims carried by individual IJs within these courts also varies. For example, from fiscal year 2007 through fiscal year 2012, the six immigration judges currently sitting on the Orlando Court decided from between 142 to 1,327 asylum applications each.¹⁷⁶ Those IJs at the higher end of this range must decide on average more than one claim for asylum every working day; given an IJ’s typical schedule of master calendar and individual hearings and allowing for time not on the bench, this likely works out to be several asylum cases per day of work. Because of the large amount of asylum claims received by the Orlando Immigration Court, the IJs there necessarily decide a higher than average number of asylum cases.¹⁷⁷ Even with a more typical figure of, for example, 400 asylum applications completed over five fiscal years, an IJ would have to complete an asylum case every three days or a case and a half every workweek with no allowance for vacation or illness.

Furthermore, claims for asylum are not the only forms of fear-based relief heard by immigration judges—the Immigration Courts also have jurisdiction to decide applications for withholding of removal and relief under the Convention Against Torture. Nationwide in fiscal year 2012, IJs heard at least 1,910 requests for withholding of removal¹⁷⁸ and 643 requests for relief under the Convention Against Torture.¹⁷⁹ Functionally, then, on an almost “daily basis, U.S. Immigration Judges nation-wide are entrusted with the equivalent of capital cases, and the stakes are high for all parties.”¹⁸⁰

The types of trauma that IJs encounter are not limited to those that lend themselves to specific forms of relief from removal such as these. They run the gamut of those discussed in Part II.A. On any given day or week, an immigration judge may face a wide range of other trauma. On one day, an IJ may be exposed to extreme and systemic trauma, such as the removal proceedings for the former Defense Minister of El Salvador, found to be removable for his participation in torture and extrajudicial killings during El Salvador’s civil war, which included more than a week’s worth of testimony and extensive evidence regarding severe state-sponsored violence and multiple murders.¹⁸¹ On the next day, the same IJ may be exposed to trauma as personal and heart-rending as a long-term legal permanent resident single mother who is ineligible for a waiver of two more than a decade old misdemeanor convictions and therefore must choose whether to take her United States citizen child to a country where she will likely be unable to receive the medical care she needs for a chronic health condition or place the child into the foster care system in the United States.¹⁸²

The combination of high case-loads of cases involving trauma heard under stressful circumstances has a very real effect on the individual IJs and on the system as a whole. As will be discussed in more detail in Part III, understandably but unfortunately individual IJs have not always handled the responsibilities, trauma exposure, and stress of their work in an ideal manner. Some IJs have even been criticized by the federal courts for the manner in which they conducted some specific cases.¹⁸³ Among other issues, IJs have been criticized for failing to allow the noncitizen respondent to present evidence,¹⁸⁴ reaching unsupported or unexplained conclusions of fact,¹⁸⁵ making repeated intemperate and hostile remarks to the noncitizen respondent,¹⁸⁶ and relying on irrelevant character evaluations of the noncitizen.¹⁸⁷ Interestingly, many of these criticisms arise out of claims for asylum, which inherently involve testimony regarding the noncitizen respondent’s traumatic experiences or fears.¹⁸⁸ While the extreme conduct described in these cases is surely the exception and not the rule, it nevertheless highlights the importance of considering the impact of trauma exposure on individual immigration judges and on the immigration process as a whole.

b. Board of Immigration Appeals Members

By regulation, there are fifteen members who sit on the Board of Immigration Appeals (BIA), located at a single facility in Falls Church, Virginia.¹⁸⁹ Fourteen regular Board members and several temporary Board members actually currently serve.¹⁹⁰ Four of the fourteen regular Board members are prior IJs, and all have prior government experience—all but two in the immigration context.¹⁹¹ A few also have experience represent-ing noncitizens in private practice or in a pro bono capacity.¹⁹²

Like immigration judges, Board members must make high-stakes decisions while working under stressful circumstances. Controversy has plagued the staffing of the BIA, beginning with Attorney General John Ashcroft’s “streamlining” regulations in 2002.¹⁹³ In addition to reforms ostensibly designed to reduce the backlog such as making single member decisions and affirmances without opinion the presumptive default, Ash-croft also cut the size of the Board from twenty-three to eleven Mem-bers.¹⁹⁴ The Board Members who were reassigned as a result of this purge were among “the most ‘liberal’ members of the BIA, as measured by the percentages of their rulings in favor of noncitizens” and their selection cannot be explained by the traditional criteria previously announced by Ashcroft.¹⁹⁵ As with the immigration judges, political and ideological affiliations were also improperly considered for a period of time during the selection and interview process for BIA positions.¹⁹⁶

The fifteen Board members hear appeals of immigration judge decisions from throughout the United States and its territories in removal, bond, and asylum-only proceedings brought by both noncitizen respondents and attorneys for the government from the Office of the Chief Counsel, and appeals of family petitions denied by USCIS among other matters.¹⁹⁷ Board members may hear and render decisions on appeals as single members, in three member panels, or en banc.¹⁹⁸ Staff attorneys assist Board members in their work.

The vast majority of decisions made by the Board are non-precedential; only between approximately thirty to forty decisions are designated as precedential each calendar year. The Board makes its decision based on the written record of the proceedings before the immigration judge, including a written transcript of all hearings before that judge, and any briefs submit-ted to them by the parties or their representatives. It never hears testimony on appeals of removal or bond orders and they rarely ever even hold oral argument.¹⁹⁹ This means that the Board Members virtually never have inperson contact with the noncitizen whose case they are deciding or even his or her attorney or the attorney for the government assigned to the case. It should be noted that, while this places Board members further away from the traumatic experience on the continuum of trauma exposure dis-cussed in Part I and may of course therefore affect the nature of their response, it does not mean that Board members are not exposed to or impacted by trauma.

Like immigration judges, Board members are affected by a high caseload and inadequate resources. In fiscal year 2012, the BIA completed 36,396 cases.²⁰⁰ Assuming an equal work load and no vacations or time out of the office, this means that each of the fifteen regulatory Board members would have to decide about nine cases every day, or more than one case every hour.²⁰¹ In the wake of Attorney General Ashcroft’s reforms, the Los Angeles Times reported that some Board members admitted deciding up to fifty cases per day,²⁰² that is, spending less than ten minutes per case. Despite the somewhat frightening speed of these decisions, the high caseload and limited resources have led to a backlog of cases before the BIA. At the end of fiscal year 2012, 24,824 cases remained pending before the Board.²⁰³ Almost eight hundred of those cases were filed with the Board in fiscal year 2010 or earlier, including some prior to fiscal year 2008.²⁰⁴

Appeals to the federal courts skyrocketed in the wake of the stream-lining reforms.²⁰⁵ At least one study suggests that this is a result of increasing dissatisfaction with the quality of the BIA’s decisions.²⁰⁶ The Circuit Courts of Appeal that have criticized particular immigration judges have also denounced the Board for failing to take the opportunity to correct the IJs errors themselves.²⁰⁷

EOIR does not release statistics regarding the grounds for appeals heard by the Board.²⁰⁸ Nevertheless, it is safe for a number of reasons to conclude that Board members are exposed to trauma through the cases they hear. First, the BIA hears cases already adjudicated by IJs. Unless only cases not involving trauma are appealed, which is improbable, this means that if IJs are exposed to trauma Board members who review the record created before the IJ will be exposed to that trauma as well. Second, both the published and unpublished decisions issued by the Board include descriptions or other indication of traumatic experiences of noncitizens. Out of the thirty-eight precedential decisions issued by the Board in calendar year 2012, nine had something to do with asylum, asylees or refugees; five related to a crime that likely involved a traumatic experience; four included the hardship of family separation, and one concerned a noncitizen victim of crime.²⁰⁹ At least nineteen, then, or half of the Board’s precedential decisions issued in 2012, involved some kind of traumatic experience.

2. Department of Homeland Security—USCIS Adjudicating Officers and Office of the Chief Counsel

United States Citizenship and Immigration Services, or USCIS, is a sub-agency of the Department of Homeland Security and operates under the authority and supervision of the Secretary of Homeland Security. Among other tasks, USCIS adjudicating officers and attorneys in the Chief Counsel’s Office make decisions on whether to grant various affirmative applications for immigration benefits.²¹⁰ USCIS is similar to EOIR in several respects. First, they are also a federal administrative agency. Second, like immigration judges, USCIS officers and attorneys decide applications for immigration status and, by extension, determine whether or not a noncitizen applicant may remain in the United States legally.²¹¹ In fact, IJs and USCIS officers make decisions on some of the very same categories of claims; which agency that has jurisdiction in any particular case is typically determined by whether or not the noncitizen applicant is in removal proceedings or other procedural factors.

Outside of these similarities, however, USCIS is structured and operates quite differently than EOIR, though the organization, staffing, and work of USCIS is somewhat more difficult to describe accurately for a number of reasons: its structure has more components and is more complex; responsibilities and functions are frequently shifted and restructured to try to achieve greater efficiency; and somewhat less information is publically available. These descriptions, then, are as current and accurate as possible given the information obtainable. In any event, barring a large scale re-organization, even if some details of USCIS’s internal organization change, those relevant for this discussion are highly likely to remain the same overall because USCIS’s major functions remain constant

USCIS conducts its operations through several different types of offices located throughout the United States—service centers, the National Benefits Center, local field offices, asylum offices, the National Records Center, and application support centers.²¹² There are four service centers nationwide—in California, Texas, Nebraska, and Vermont²¹³––that review and adjudicate applications that are decided solely based on the paperwork submitted. The Vermont Service Center (“VSC”) has a unit of officers specifically trained to adjudicate applications filed by victims of violence and crime—specifically self-petitions under the Violence Against Women Act, U visas, and T visas; all applications of these types filed from anywhere in the country are handled by the VSC.

The National Benefits Center²¹⁴ receives and conducts preliminary processing on applications that will ultimately require in-person inter-views.²¹⁵ These include applications for adjustment of status to legal permanent residence, naturalization, and asylum. Once the National Benefits Center has finished their preliminary review of the evidence, background and security checks, and other preparatory steps, interviews are scheduled at the local field office or asylum office closest to the applicant’s place of residence and the applicant’s file is sent on to that office. There are a total of eighty-five field offices in the United States and abroad.²¹⁶ Adjudication officers, also known as immigration services officers or ISOs, at these offices handle all applications for immigration benefits where an in-person interview is required or optionally scheduled with the exception of asylum claims. The eight Asylum Offices throughout the country work on asylum claims only; asylum officers located there conduct interviews and make decisions on all affirmative applications for asylum.²¹⁷ The USCIS Office of the Chief Counsel, among other responsibilities, provides legal advice to these other USCIS components on the applications they adjudicate.²¹⁸

The National Records Center (NRC) and application support centers (ASC) do not directly adjudicate applications for immigration benefits. The NRC manages storage of and requests for all A files, or the file that DHS maintains on each noncitizen applicant for benefits. ASCs exist solely to collect biometric information—fingerprints and photographs—from noncitizens with pending applications in order to conduct background checks on them.

Very little information is available about the background and characteristics of USCIS officers generally. It is safe to say, however, that we are taking about a large number of attorneys and those acting in quasi-attorney capacities. Although there are only eight regional asylum offices, the number of asylum officers is still significant; from 1999 to 2005, 928 asylum officers decided asylum claims in these eight offices.²¹⁹ While numbers of adjudicating officers at the local field offices and in the VAWA Unit at the Vermont Service Center are not available, given the amount of offices and applications adjudicated each year, the count must be high.²²⁰ Given the size of the group being discussed, then, it is even more important than with immigration judges not to treat USCIS officers as a uniform group, but instead to gather more information regarding their differing back-grounds, personal and professional experiences, and personalities and individual characteristics to better understand and manage their trauma exposure.

Proceedings before USCIS do not look or function like a court. In some cases, USCIS officers make decisions solely based on the paperwork submitted in support of the application and never have personal contact with the applicant himself. Where an interview is required or requested, the applicant will be called in to the USCIS Field Office closest to their residence and interviewed by a USCIS officer in a small office. The noncitizen applicant, along with her attorney or other representative if she has one and her translator if necessary, sit across a desk from the USCIS officer. There is no opposing counsel and no legal assistant or others present in the office during the interview, as there would be in the immigration courtroom. The USCIS officer controls the interview virtually completely, including by questioning the applicant herself.²²¹ Proceedings before USCIS are conducted considerably less formally than proceedings before the Immigration Court.

Because USCIS is primarily self-funded through the fees charged for the applications it processes and is not subject to the congressional appropriations process, it is unlikely to be particularly negatively affected by sequestration. The agency has actively worked to reduce its case processing times, and, while some applications still take an extended period of time to process,²²² overall USCIS does not have the same caseload and backlog problems as EOIR. USCIS is not without its particular institutional issues, however. Chief among them is an overemphasis on fraud.²²³ Among other indications of this problem, USCIS is implementing a new performance evaluation process for its immigration services officers that appears to incentivize finding fraud.²²⁴

Just like the other categories of government attorneys already addressed, in addition to the institutional issues confronting them, USCIS officers are also exposed to trauma in the course of their work. For pur-poses of this Article, I will focus on the several offices and categories of officers discussed here that are most likely to experience trauma exposure—specifically officers in the VAWA Unit at the Vermont Service Center, asylum officers, and adjudication officers at the local field offices and the attorneys in the Chief Counsel’s Office who provide legal advice to these officers. Officers in the VAWA Unit and Asylum Officers have a docket that consists solely of noncitizen applicants who have suffered or fear significant trauma. Both groups of officers adjudicate significant numbers of cases based directly on trauma. In fiscal year 2012, the Vermont Service Center adjudicated 868 principal T visa applications for victims of trafficking and 12,988 principal U visa applications for victims of crime, and approved 3,346 self-petitions for victims of domestic violence.²²⁵ This is a total of at least 17,202 applications adjudicated by a single service center directly involving traumatic experiences. Numbers of asylum applications approved and denied by the eight regional asylum offices are not provided by USCIS, but 76,081 asylum applications were received by US- CIS during this same fiscal year.²²⁶ Given the expedited system for hearing affirmative asylum applications, it is likely that a similar number of asylum applications were adjudicated over this period of time.

Officers at the local field offices are also likely to be exposed to noncitizens’ traumatic experiences in the course of their work. While all applications adjudicated by these officers do not necessarily directly involve trauma, some of them may. For example, these adjudications officers may hear and decide applications to adjust status filed by noncitizens with approved self-petitions as victims of domestic violence, applications to adjust status filed by juveniles who were abused, abandoned, or neglected by their parents, and naturalization applications with requests for disability exceptions filed by refugees or asylees whose ability to learn English and United States civics and government has been negatively impacted by PTSD. Other noncitizen applicants interviewed at the local field offices are likely to have faced one of the other traumatic experiences discussed in Part II.A, at a minimum their migration to the United States and consequent loss of their prior home.

III. Trauma Exposure Impactsthe Immigration Process

This section will explore how the trauma exposure explained in Part I and laid out in Part II affects individual immigration adjudicators and through them the immigration process as a whole. To aid in this process, it considers the existing single study of immigration judges as well as studies done on other judges and attorneys generally. Where possible, it will reach conclusions that can be drawn from this research and where not, it will point out additional research that would be helpful in better understanding and therefore better managing trauma exposure response.

A. The 2007 Lustig Study of Immigration Judges

The 2007 Lustig survey of stress and burnout in immigration judges provides the most direct evidence of the impact of trauma exposure on any of the categories of adjudicating government attorneys.²²⁷ That survey administered two different scales measuring stress and burnout to ninety-six immigration judges: the Secondary Traumatic Stress Scale (STSS) and the Copenhagen Burnout Inventory (CBI).²²⁸ On the STSS, the responding IJs demonstrated mild to modest symptoms of secondary traumatic stress on the STSS on all three subscales, reporting intrusion, avoidance, and arousal symptoms.²²⁹ Female IJs reported statistically significant higher levels of secondary traumatic stress than male IJs.²³⁰ On the CBI, the IJs overall demonstrated higher levels of burnout “than any other group of professionals to whom the CBI had been administered, including prison wardens and physicians in busy hospitals.”²³¹

In addition to these two scales, the survey allowed immigration judges to provide narrative responses to the prompt: “Please let us know anything else that would help explain the occupational challenges faced by immigration judges.”²³² Fifty-nine of the total ninety-six responding immigration judges provided such a narrative response.²³³ Of those, twenty-seven, or slightly less than half, specifically mentioned mental health and well-being.²³⁴ A number of these responses focused on the emotionally draining nature of the work as a result of the exposure to trauma it entails.²³⁵ For example, one immigration judge said:

As an Immigration Judge, I have to hear the worst of the worst that has ever happened to any human being, particularly in asylum cases. I have to listen to the trauma suffered by individuals. I have to hear it on a daily basis. It’s emotionally draining and painful to listen to such horrors day in and day out.²³⁶

A number of others echoed a similar theme regarding the horrific nature of asylum seekers’ testimony and the difficultly in having to listen so closely to the details of such inhumanity: “I have heard testimony about torture that I never wanted to know about, and I wish I hadn’t heard.”²³⁷ Several immigration judges acknowledged the impact on their own mental well-being: “I have a great deal of experience with depression and anxiety. Aside from coping with that personally, I have to deal with the depression, anxiety, and emotional problems of the individuals who appear before me.”²³⁸ At least one immigration judge specifically recognized the impact on his or her worldview of this trauma exposure: “I have lost most of my faith in humankind, and I fear deeply for the future.”²³⁹ Another noted the effect when cases are remanded by the BIA or Circuit Courts: “[W]e are ‘re-traumatized’ by having to hear the same cases again.”²⁴⁰ Several mentioned the lack of institutional support, or their need to rely on support from outside the agency, in dealing with this exposure to trauma.²⁴¹ Importantly, narrative responses labeled with this metacode were significantly associated with scores on both the stress and burnout scales previously discussed.²⁴² This result reinforces the reality of the impact of trauma exposure on immigration judges, and the importance of addressing it both for the immigration judges themselves and for the immigration system as a whole.

Some of the responses of the immigration judges that were coded in to other categories reveal additional, deep-seated trauma exposure response. The responding immigration judges, and possibly even the authors of the study, did not recognize (or at least explicitly acknowledge, in the case of the authors) the connection of trauma exposure to these responses, but the content of the comments can be directly traced to the symptoms of trauma exposure previously discussed. One telling example is the existence of a category for responses referencing noncitizen fraud during removal proceedings.²⁴³ Fraud seems to be used here, and in general in discussions of the immigration laws and procedure in the United States, to mean completely and intentionally made up, with no basis whatsoever in fact. In reality, truth and falsehood are much more complicated concepts for many reasons—among them, an applicant may omit or exaggerate or alter a portion of his or her story without rendering the whole story false; differences in perception may cause two different observers to experience and therefore describe the very same event differently but still truthfully; and issues with memory will affect the way an experience is remembered and retold. This oversimplification of the concept of fraud is one indication that something is going on beyond an actual widespread prevalence of completely false claims for immigration benefits.

Many of the symptoms of trauma exposure response may cause immigration judges (and other adjudicators) to overestimate the number of fraudulent claims they see.²⁴⁴ Irritability, anger, loss of trust, and pessimism about people are all factors that might cause an immigration judge to disbelieve a truthful applicant. Anxiety, intrusive thoughts, difficulty concentrating, and trauma-related physical complaints may result in an immigration judge being inadvertently less attentive than he or she would otherwise be and therefore misunderstanding or failing to fully inquire in to the details that would reveal a genuine claim.²⁴⁵

Other responses also indicate symptoms of trauma exposure response. Anger and irritability were evident in a number of responses. For example, one IJ wrote: “The dynamics in the courtroom do get quite intense on occasion, and we need to be able to adjourn, take a breather and get perspective. Our calendars don’t allow that and we judges have to grovel like mangy street dogs to get exemptions from unrealistic completions goals and general workload expectations.”²⁴⁶ Many comments showing irritability were focused on the perceived incompetence of attorneys on both sides and other personnel in the courtroom.²⁴⁷ For example, one IJ voiced frustration at “walking into the courtroom and seeing very difficult and SLOW attorneys on both sides and knowing the day is shot at the first case.”²⁴⁸ Hyper-arousal,²⁴⁹ including overreaction to more minor annoyances, also appeared in IJ comments: “I get cranky when attorneys argue with me about the clock or send in letters to try and have the clock changed.”²⁵⁰ Finally, isolation and powerlessness were featured in multiple responses, including compellingly in a comment depicting “as a frame of reference” for an IJ’s situation “the character in a cartoon who is seen sitting alone on a very small island while surrounded by endless ocean.”²⁵¹

By identifying these otherwise coded narrative responses as related to trauma exposure, I do not mean to minimize the immigration judges’ complaints or suggest that they are not well-founded. As should be clear from this discussion and the previous discussion in this section of the IJs role and constraints, these are very real systemic issues.²⁵² As the study itself points out, “it is not surprising to hear of instances of judicial intemperance or a lack of uniformity in how cases are handled, given the stress under which IJs are working.”²⁵³ I do mean to say, however, that an IJ whose trauma exposure response is better managed would have the capability to respond differently, and hopefully more productively, in terms of both individual impact and small- and large-scale organizational reform.

No comparable study has been done of USCIS adjudicating officers and attorneys, or of BIA members. Further research regarding the effects of trauma exposure in these groups, and comparing and contrasting among the groups, would be tremendously valuable in a discussion of how to better manage the evident trauma exposure response. However, there are sufficient commonalities among the groups to conclude that the impact of trauma exposure is likely to be similar.

Many USCIS officers are similarly situated to immigration judges in that they must read, listen to, and sometimes elicit testimony regarding noncitizens’ traumatic experiences and then decide whether or not those noncitizens will be granted some status authorizing them to stay legally in the United States. As a result of these similarities in role, the impact of trauma exposure on USCIS adjudicating officers can likely be analogized to the impact on immigration judges previously discussed. Anecdotal evidence of the effect of trauma exposure in USCIS adjudicating officers suggests that this comparison is apt.²⁵⁴

Other USCIS adjudicating officers such as those in the Vermont Service Center who adjudicate domestic violence related petitions, attorneys in USCIS’s Office of the Chief Counsel and Board Members perform essentially the same adjudicatory functions but do not have or rarely have direct contact with noncitizens because they make decisions based solely on review of paperwork. This does not mean, however, that these attorneys are not impacted by the trauma that they are exposed to. While proximity to the traumatic experience may affect the strength and significance of symptoms of an individual’s trauma exposure response, other factors are also relevant. Structural issues such as high caseloads appear to exacerbate trauma exposure response. In addition, many of these attorneys have also been exposed to other traumatic experiences and lack of structural support in their workplaces—for example, the streamlining reforms and political considerations in hiring and firing for the Board of Immigration Appeals. These structural issues and other sources of trauma along with other caseby-case factors may, at least for some individuals, combine to create a more significant trauma exposure response than might otherwise be expected. With some attention to the greater distance that they are removed from the direct experience of trauma, then, trauma exposure responses of these attorneys can also be analogized to that of immigration judges.

B. The Jaffe and Other Studies of Judges Generally

The impact of trauma exposure on adjudicators and attorneys in different subject matter areas also provide some additional insight into possible considerations in the immigration context. Earlier studies of judges confirm and add details to Lustig’s survey of immigration judges. In one of the most significant of these studies, Dr. Peter G. Jaffe and colleagues con-ducted a survey of 105 total judges attending one of four workshops and representing “a cross-section of urban and rural centers across the United States, different levels of court, and a range of criminal, civil, and specialized courts.”²⁵⁵ Overall, 63 percent of the judges surveyed reported one or more symptoms of trauma exposure.²⁵⁶ The most commonly reported symptoms, short and long term, were sleep disturbances, intolerance of others, physical complaints, depression, and a sense of isolation.²⁵⁷ Other relevant symptoms described included anxiety, sadness, feelings of helplessness, feelings of hopelessness, fatigue, anger, irritability, frustration, cynicism, fear, difficulty concentrating, hypervigilance, “guilt” flashbacks, nightmares, cognitive flooding, hypersensitivity, and feeling over-whelmed.²⁵⁸ Female judges and judges who had been on the bench for more than six years were more likely to report at least one symptom and to report greater numbers of symptoms.²⁵⁹

The percentage of judges in the Jaffe study suffering from trauma exposure is significant, particularly because not all judges surveyed were part of specialty courts with “a steady diet of highly emotional cases” like the immigration courts and USCIS.²⁶⁰ As the article on the study itself points out, further study focused on additional possible contributing factors such as the nature and workload of the court and particular steps already taken to combat trauma exposure would be helpful in explaining and therefore managing adjudicators’ trauma response in the immigration process.²⁶¹ Additional exploration of the different rates of trauma exposure response reported based on gender and experience will also be important.²⁶² In particular with regard to the gender differential, which was also evident in the Lustig study, “the extent to which this is a real difference versus one in reporting [or awareness] needs to be addressed.”²⁶³

The study’s focus on self-reported symptoms²⁶⁴ is helpful in that it allows some conclusions to be drawn about how the adjudicative process in the immigration system might be affected by judges’ and other adjudicators’ trauma exposure. In addition to the possible overestimation of fraud in the system discussed earlier, trauma exposure response may have multiple other negative affects on immigration proceedings. An immigration adjudicator experiencing intolerance of others, anger, irritability, frustration, hypersensitivity, and feeling overwhelmed will likely conduct proceedings with less patience and less empathy than one who is not. Cynicism, particularly combined with feelings of helplessness and hopelessness, may result in particular intolerance towards noncitizens and their attorneys. These symptoms will also likely result in a much higher number of denials than an immigration adjudicator whose worldview has not been so affected would issue. Difficulty concentrating, sleep disturbances, fatigue, and other physical complaints may result in an immigration adjudicator who is unable to pay sufficient attention to the details of the facts or law in cases before them. Unmanaged depression and anxiety have also been shown to negatively affect performance in the workplace.

The fact that the research was designed around open-ended questions, however, does present some limitations as it relies on the ability of the participants to identify the effects of trauma exposure on themselves.²⁶⁵ In fact, a workshop conducted by one of the studies’ authors demonstrated that many judges may lack this amount of personal insight into their trauma exposure response: “[I]ndividual judges greatly underestimated the impact of their stress and work on their personal functioning, compared with the stresses and changes noticed by their spouses.”²⁶⁶ Other participants in the study “noted that they had not been aware of the profound impact of their work until after they changed assignments and were able to gain more perspective.”²⁶⁷ Further research on this phenomenon could be particularly fruitful, as it might help to convince those more skeptical members of the legal profession of the very real effects of trauma exposure.²⁶⁸

C. Studies of Attorneys

Dr. Andrew Levin’s 2003 survey, while focused on attorneys and not on adjudicators, also provides at least two valuable points and highlights important areas for additional exploration and study.²⁶⁹ Dr. Levin surveyed three groups of helping professionals likely to be exposed to the traumatic experiences of their clients through their work—attorneys “from agencies specializing in domestic violence and family law as well as legal aid criminal services,” mental health providers from community agencies who provide mental health treatment, and social service workers from community agencies who provide “concrete and case management services to the mentally ill.”²⁷⁰ The three groups displayed similar characteristics in many important respects—age, experience, gender (predominantly female), history of childhood trauma, and history of prior mental health treatment.²⁷¹ First, the survey results demonstrated that the attorneys experienced more symptoms of secondary trauma than either the mental health providers or social service workers and scored consistently higher on each of the sub-scales of secondary trauma surveyed. In terms of the symptoms demonstrated, this means that “the attorneys demonstrated higher levels of intrusive recollection of trauma material, avoidance of reminders of the material and diminished pleasure and interest in activities, and difficulties with sleep, irritability, and concentration.”²⁷² Second, Dr. Levin’s results showed that increased caseloads were correlated with greater levels of trauma exposure response for the helping professional.²⁷³

Dr. Levin’s finding that attorneys experience greater rates and symptoms of secondary traumatic stress than either of his two control groups is obviously of great significance and points to the particular importance of addressing trauma exposure response in any group of attorneys. In addition to further research to connect these conclusions to immigration attorneys generally and adjudicators specifically, additional study and exploration of the causes behind a greater trauma exposure response in attorneys would be helpful. The attorneys surveyed in Dr. Levin’s study had higher caseloads of trauma survivors than the non-attorneys, suggesting that this might be one possible explanation.²⁷⁴ His survey was only a preliminary one, however, and did not reach this question of causation or explore possible alternative explanations.²⁷⁵

Conclusion

The impact of trauma exposure on the immigration system and process through its effect on immigration adjudicators is clearly significant and pervasive. It impedes our ability to have a fair and just immigration system