Richard Caldarone, Tahirih’s Senior Litigation Counsel, used his expertise in both immigration law and survivor-centered service provision to create a new tool, “Survivor-Centered Legal Writing: A Brief Guide.” This unique resource for advocates provides practical guidelines for communication that conveys the full humanity of survivors and other marginalized groups and challenges the xenophobic, dehumanizing language of our immigration system.
In this interview, Richard shares more about what inspired him to create this writing guide, the key takeaways for survivor-centered communication, and what he hopes will be the impact of this tool.
What inspired you to write this guide?
I asked myself how we can implement Tahirih’s survivor-centered approach to services in litigation. There are all sorts of rules and norms, rooted in systems of White supremacy, that lawyers have to adhere to. If you don’t, you and your client may face negative consequences. One place where there’s space to be survivor-centered is in how we write briefs. But I had not seen any guide focused on how to write briefs for survivors—or even immigration cases. My hope is that this guide fills that void.
Why did you think this guide was needed?
The language of our immigration system, and the language routinely used in immigration courtrooms, dehumanizes people seeking asylum in so many ways.
As advocates, we can’t change the language that immigration judges use, or the language that DHS uses, or the language used by lawyers and notarios who do not always center the best interests of their clients. But we can control the language we use ourselves, and I think that careful attention to our language can have small but real effects on the system as a whole.
So for any advocate who would like to be more client-centered, this guide provides ways to practically implement survivor-centered and trauma informed practice.
What is the most important point you’d like readers to take from this guide?
The most important thing to remember is to treat everyone in your client’s story as a person. The law literally sees immigrants as aliens, and we must resist this depiction.
People who experience abuse are not victims, they are survivors. The people who harmed them are not only abusers and criminals; they are people, too. Our clients and everyone in their story are human beings.
Your guidance on how to describe people who commit violence might be considered controversial. Can you elaborate more on why this is an important point and why you wanted to include it in this guide?
It might well be controversial, but we need to consider how our work impacts all people seeking asylum. Our next client may be someone who acted in ways we’ve called “criminal” and yet who has good reason for seeking asylum. We need to think about that. We must be careful that our practice does not harm other people trying to make their case for protection.
The violence of our immigration system is another reason to push back against dividing people into “good” and “bad” immigrants. After all, U.S. ports of entry at the southern border have been effectively closed for more than six years—so the government has deprived people of their right to seek asylum and is instead forcing them to commit a “crime” by crossing the border between ports of entry.
We also imprison many people who do manage to cross. This system of imprisonment wouldn’t be tolerated in most other contexts. We’re imprisoning people without due process for indefinite periods.
The current administration has tried to restrict the use of long-term imprisonment. But even now, DHS uses the full power and violence of the DHS prison system against anyone who has been here less than two years. It also routinely imprisons anyone found to have committed certain crimes–a category that will inevitably include survivors falsely accused of committing abuse.
If we portray people who commit abuse as violent criminals, we justify this system of imprisonment, and by doing that, we open the door to the use of institutionalized violence against everyone seeking asylum.
What do you see as the biggest challenges for attorneys and advocates hoping to follow your guidance? What barriers are there to implementing this?
The biggest practical challenge, besides time and money, is that we face many judges who are at the very least skeptical and sometimes hostile to our clients and what the client is saying. For example, attorneys should use the name, pronouns, and gender that their client requests.
But in some cases, it is a challenge to describe a client accurately and in the client’s preferred way without getting a negative response from adjudicators, especially for LGBTQI+ people. In those cases, we need to be honest with the client about the tradeoff and then allow the client to make the highly personal decision of which words to use.
What impact do you hope this guidance has?
I hope that it will lead advocates to pause and take the time to make sure the way we’re presenting our clients’ cases in the best way for people coming here fleeing gender-based violence and for all people seeking asylum. There are many excellent, caring advocates who want to be client-centered, but everyone has lots of clients, and advocates almost never have time to stop and take stock. That can lead us to default to using the language of the immigration system, which is xenophobic. I hope this guide will make it easier for busy advocates to avoid falling into this pattern.
For example, I often see advocates referring to people as migrants or asylum-seekers. While this is much better than using the term “alien,” “asylum-seeker” still presents our clients first and foremost as not American. If we instead describe our clients as “people seeking asylum,” the focus is on the commonality—we are all people—and not on differences.
We need to shift our mindset. Imagine a person who would, because of their identities and experiences, be one of the most marginalized people in our society—and imagine that this person has been forced to seek asylum pro se in immigration court. The language we use in presenting a client’s case should always work for that person as well as for our own client. Doing that wouldn’t magically fix an immigration system founded on xenophobia, but it would improve things a little bit for everyone who has to face that system.
