Monday, May 16, 2022
Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review. It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion":
Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.