Engaged Scholarship Q&A: Karen Musalo

In our Engaged Scholarship series, we speak with members of the UC Hastings Law faculty who are influential scholars, advocates, and thought leaders. Our latest conversation is with Professor Karen Musalo.

Karen Musalo is a prominent scholar known for her groundbreaking approach to refugee and human rights law. She served recently as co-counsel in Matter of A-B-, in which she won a major ruling for domestic violence survivors seeking refuge, and is currently working to challenge Title 42, which closed U.S. borders to asylum seekers. Musalo is the founding director of UC Hastings’ Center for Gender and Refugee Studies, internationally renowned for its research and legal advocacy and for its program of expert consultation with attorneys worldwide.

Musalo is the lead co-author of Refugee Law and Policy: An International and Comparative Approach (Carolina Academic Press) and appears frequently in major media outlets. She recently spoke about the origins of U.S. asylum policy on KQED’s Forum and published an op-ed about America’s responsibility to Afghan refugees in the Los Angeles Times. This semester, Musalo is teaching in the Refugee and Human Rights Clinic.

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Q: You’re a lawyer, a teacher, a researcher, an author, and an advocate. How do these identities interact in your life?

A: They all support and inform one another. If I wasn’t involved in the real life aspect of my work, I don’t think I’d be as motivated as a scholar. If I didn’t spend time paying deep attention to the issues I spend time with as a scholar, I wouldn’t be as good with my students. And if I didn’t have my feet firmly on the ground, I wouldn’t be able to tell my students, “This is what it’s like to do this. This work can be hard and it can be disappointing. Here are the rewards.”

We think of the academic in the ivory tower, but many students come to UC Hastings because the school is known for its emphasis on public service and social justice. For those students especially, I think it means something that I don’t just talk the talk, I try to walk the walk.

Q: What brought you into your work on refugee law?

A: It was a total accident. [Laughs.] Many of my students come to Hastings with a very clear idea of what they want to do. I tell them, “That’s wonderful. I hear you. You have very good reasons and motivation to do what you say you want to do. But keep yourself open because things can change.” And then I tell them my story.

I had been working as a journalist for a small community newspaper that I helped found, up in the foothills of the Sierra Nevada mountains. This was during the back-to-the-land movement in the 1970s. I had a wide environmental interest. I wrote stories about the use of pesticides, logging, and the indiscriminate killing of wildlife, such as coyotes and raccoons, who were believed to be preying on livestock and poultry. While I was working as a journalist, I realized that I could write about these issues, but the lawyers could get in there and fight for justice. They could be adversaries, in the best sense of that word, and they were the ones who could influence the outcome. So I decided to go to law school, with a commitment to and interest in doing environmental work.

My first job out of law school was at a [Ralph] Nader organization, the Massachusetts Public Interest Research Group (MASSPIRG), in Boston, where I worked on environmental issues. When I left that fellowship and came back to the Bay Area, my intent was to seek another public interest job in environmental law. But the job market was tight.

While I was looking for a job, I did contract work just to pay the bills. Then I volunteered to take on a few pro bono asylum cases during a huge exodus from Central America, as Guatemalans and Salvadorans were fleeing brutal civil wars. That work was impactful on me on so many levels.

While I was working as a journalist, I realized that I could write about these issues, but the lawyers could get in there and fight for justice.

The U.S. had been funding the repressive military in El Salvador and my first client was Salvadoran. Five members of my client’s family had been killed or disappeared in the most terrible ways. Somehow, he had managed to escape and he was in immigration detention in the U.S.

On a very human level, this person was so deserving of representation, given all he had been through with the violence inflicted by the military government of El Salvador. And the issues the case raised were quite interesting. The law under which we now operate is the 1980 Refugee Act, so that law was extremely new in 1982-83, there was hardly any precedent, and there was very little knowledge about how to litigate these cases. There was lots of room to be creative and make contributions. And – not to brag! – I did a lot of very creative things in that first case.

During this period, virtually all Salvadoran asylum cases were being denied – and I won that first case. Then I took a second case. And I took a third case. By the third case, I was kind of hooked. I realized that I really had a passion for this. There was a small nonprofit in the Mission district called the Father Moriarty Central American Refugee Program, which had been started by a priest, Father Cuchulain Moriarty, who had been welcoming and providing services to Chilean and Argentinian refugees fleeing military coups and repression. He expanded his support to Central American refugees.

During this period, virtually all Salvadoran asylum cases were being denied – and I won that first case. Then I took a second case. And I took a third case. By the third case, I was kind of hooked.

This little nonprofit had heard about the work I was doing in these refugee cases, as I had started doing trainings for attorneys. They reached out and said, “We can offer you a halftime position.” The amount of money was so low and I didn’t speak Spanish at the time. When I was working on these pro bono cases, I had the help of a team that included interpreters. I told the nonprofit, “Well, even though the salary is low and the job is only half time, I’d like to do this. But I also don’t speak Spanish.” They said to me, “We’d really like for you to work here. Why don’t you take an intensive course over a couple of months and try to learn Spanish?”

And I was foolish enough to do that. When I started working there, it was just so inspiring to be in the trenches. There were so many clients coming into our offices, each one with a different story and a kind of courage and resilience, so grateful for the help that they would get.

So I truly fell into the work after I returned to the Bay Area intent on continuing to practice environmental law. That’s why I would advise anyone: What you think you want to do may be what you end up doing. But keep yourself open to other experiences.

Q: What do you think most Americans misunderstand about asylum seekers?

A: I think there’s a misunderstanding of our laws, which explicitly permit people to come to our borders and seek asylum. So first, there’s an idea that these people are law breakers. Secondly, I think there’s a lack of understanding about why people come.

I don’t want to sound elitist, but Americans can be very provincial sometimes. They just think that people are coming here because America is so great and everybody wants to be in the U.S. People are coming because their lives are literally at risk. They are so fearful. As one poet has so eloquently put it, “You don’t leave home, unless home is the mouth of a shark.”

When Americans chant “Send them back!” they may not realize that we have both a legal obligation and a moral obligation to asylum seekers.

In many Central American or Caribbean countries – for instance, El Salvador, Guatemala, Honduras, Haiti – Americans do not appreciate that U.S. foreign policy has been a strong contributing factor to the conditions of rights violations, violence, dysfunction, and economic injustice. In El Salvador, the U.S. provided massive funding for the government’s brutal military, all the while knowing that military was massacring civilians and disappearing peaceful protestors.

When Americans chant “Send them back!” they may not realize that we have both a legal obligation and a moral obligation to asylum seekers. I hope that Americans will be persuaded by the fact that the law does provide protection – that these people have a perfect right to show up at the border and ask for asylum. And I hope they will have enough of a sense of fairness and justice to see that we are even more responsible when we’ve contributed to the dire straits that these people find themselves in.

Q: What has been the most challenging case of your career – and how did you manage to find your argument?

A: In my life, it hasn’t been so much one case or one argument. But there are some strategies I developed when I was first learning on my own – in that Father Moriarty program where we had just about no resources and the odds were so stacked against us with the denial rates. In looking for creative solutions and brainstorming with other people, I came up with some strategies that I was the first person to try. And those strategies are now widely accepted and effective.

For instance, I’m very proud of the fact that I was the first attorney to partner with medical professionals in asylum cases in the 1980s. My first case led me to that idea. You’ll remember that first client I described – the man from El Salvador who had five family members who had been brutally disappeared or assassinated. I worried he would not be found credible or believable by the immigration judge, because he just didn’t seem to be able to talk about what had happened in a convincing way.

In looking for creative solutions and brainstorming with other people, I came up with some strategies that I was the first person to try.

Before I had my first hearing in immigration court, I had sat in on my colleagues’ hearings and I had seen judges just flat out say, “That asylum seeker talked about all these family members being killed and she did it so dispassionately, without showing any emotion. She is not believable.” I was afraid of that happening.

I started asking different people how I could work to avoid this. We talked about using a lie detector test, all sorts of outlandish things. I finally ended up having a conversation with a psychologist in Berkeley named Adrianne Aron. She said, “Why don’t you send your client to me? I’ll evaluate him and then I’ll tell you what my thoughts are.”

When she met with that client, she found that he was suffering from Post-Traumatic Stress Disorder (PTSD). She documented all the symptoms he was showing that are associated with PTSD, such as memory loss and a flat affect – the very things judges seize upon to say that someone is not believable! When she indicated that his symptoms were absolutely consistent with PTSD, we took something that could be used as a weapon against the client’s credibility and turned it into something that was extremely helpful. I began talking to and training other attorneys on working with psychiatrists, psychologists, and other mental health professionals. There have since been several studies – and another one will come out shortly – showing that the use of forensic medical evaluations is associated with better case outcomes. This approach has now become something that is so widely accepted that it is standard practice.

Another thing I noticed was that judges would impose their sense of ‘common sense’ onto the client’s situation. Anybody who has training in anthropology knows that the idea of ‘common sense’ is very society bound.

I was also very proud of being one of the first people to use country conditions experts and anthropologists in asylum cases. Because another thing I noticed was that judges would impose their sense of “common sense” onto the client’s situation. Anybody who has training in anthropology knows that the idea of “common sense” is very society bound. An American judge might hear a story and think, “That’s totally unbelievable. That couldn’t have happened.” Whereas in another culture, what is being described is the norm. I started bringing in anthropologists to serve as expert witnesses or to write affidavits that could be submitted in cases. [CGRS has since established the first expert witness database for asylum attorneys, allowing them to more easily find experts to support their cases.]

I’ll give you one small example, which might sound a bit silly. I’d heard about a judge who found a client not believable because, when he asked a young Salvadoran man how he avoided being drafted into the government’s repressive military during that country’s civil war, he said, “I hid at home.” The judge said, “You’re going to get your draft notice at home. You can’t hide at home.” What he failed to understand was: There is no draft, as we would think of it. The military rounded up young men up outside schools and soccer stadiums. There are different norms in these societies that need to be explained – and I was one of the first people who started working with experts to explain them.

Another thing I became known for was putting in lots and lots of documentary evidence. There is a range of how conscientious immigration attorneys are, just like any other attorneys. I’ve always been on the nerdy side. To prove country conditions, which is essential in asylum cases, I would do exhaustive research. I would have piles of documentation from Amnesty International, Human Rights Watch, and all the rest. I knew that proving these conditions was central and that even if I lost at the trial or hearing level, I would be making a record for appeal. It really pleased me to hear that a judge had told one of my colleagues behind my back, “What can we do about Musalo? She always comes in here with a shopping cart full of evidence.”

The judge said, ‘You’re going to get your draft notice at home. You can’t hide at home.’ What he failed to understand was: There is no draft, as we would think of it.

Well, when you have a denial rate of 98-99 percent, that’s what it takes. And I saw how important the evidence was as I lost a couple of cases at the trial level in those early years. I appealed all the way up to the administrative appellate body, which is the Board of Immigration Appeals, and then to the Ninth Circuit Court of Appeals. We won those appeals. And in both cases, the Ninth Circuit cited evidence I had put into the record that was right on point.

So while there are cases I’m particularly proud of, I’m most proud of the strategies I developed. You have the whole system rigged against you. What can you try to strengthen your hand?

Q: This is hard work and you’ve been doing it for decades. Like any human, I imagine there are times where you get tired or overwhelmed or feel like you can’t pull it off. How do you resource yourself in those moments and where do you draw your strength from?

A: I have been a meditator for many, many years, probably going back to my early 20s. I have a very grounding daily practice. And that’s important, because it allows me to tap into what is positive and what I am grateful for in life. In this work, there is a lot of adversity and you see so much suffering. It’s important to find a sort of peace and tranquility in yourself and a sense of interconnectedness with the broader universe.”

I have been a meditator for many, many years, probably going back to my early 20s. I have a very grounding daily practice.

And then having a supportive community of family and friends, which is always expanding. I consider my former students who go out and do these wonderful things as part of my community. It gives me a lot of strength to see that happening.

I try to take care of myself physically, exercise every day, and eat well. But most of my strength comes from a willingness to witness suffering without myself being drowned in it. I find a way to appreciate and value all the positive things – and that nurtures my spirit.

Q: You recently spoke about the plight of Haitian refugees on KQED’s Forum. A cynic might look at the current situation at the border and say American immigration practices were cruel under Trump and they remain cruel under Biden. Nothing changes. How do you transmit the energy and belief in change that you have to others?

A: I try to share stories of real warriors for justice who have made a difference by staying the course. And for refugee rights lawyers, even if the policy is bad, when you win an individual case for someone who has suffered egregiously, it’s such a great feeling. Now they have safety; now they can reunite with their children; now they are in a place where they can try to heal.

I’ve always tried to do work where I’m operating both on the individual level with individual clients and working on bigger systemic issues, because sometimes you see progress on one front and sometimes you see progress on the other.

This might sound quite naïve, but I feel that even if I’m fighting for something and I don’t win, I couldn’t live with myself if I didn’t at least try.

There’s another piece of it too. And this might sound quite naïve, but I feel that even if I’m fighting for something and I don’t win, I couldn’t live with myself if I didn’t at least try. I’ve worked to impart that to my students: If you do everything you possibly can, that will make you feel good about yourself. You will be at peace with your conscience and aligned with your core values. There’s a lot to be said for that.

Q: The pandemic has had a profound personal and professional impact on many people. What have you learned about yourself in the past 18 months?

A:I don’t know if this is something I’ve learned about myself so much as a reminder of how fortunate and privileged I am. So many people in the U.S. suffered so much. They didn’t have the luxury to work from home. More than 675,000 people in the U.S. alone have lost their lives to this pandemic. I was able to teach on Zoom and to continue the work that I’ve been doing. I could earn an income and survive well. I have the privilege to access the best medical care in the world and to have been vaccinated within a year of COVID becoming an issue in the U.S.

The pandemic was the Trump administration’s pretext for shutting the border to all asylum seekers, a policy which the Biden administration has continued to this day.

I know how lucky I am compared to my fellow citizens in the U.S. If I look at this globally, I just feel even more fortunate. In Africa, for instance, less than 4 percent of the population has been fully vaccinated. Remembering how lucky I am always pushes me even harder to try to contribute to alleviating the suffering of others. And that sense of luck is also mixed with my grief at how much suffering this pandemic has inflicted. The pandemic was the Trump administration’s pretext for shutting the border to all asylum seekers, a policy which the Biden administration has continued to this day. In a pandemic, those who are the most marginalized suffer even more.

Q: What are you currently working on?

A: Let me first share how I thought my work would change as we transitioned from the Trump to the Biden administration. During Trump, my CGRS colleagues and I expended a tremendous amount of energy challenging the anti-immigrant policies that were issued on what seemed like an almost daily basis. We all hoped and assumed that once Biden took office, it would be less challenging, and we’d be able to engage with the new administration to build back our asylum system. Unfortunately, that was only partially true. To date, Biden has refused to roll back the most egregious of the Trump policies – the so-called Title 42 expulsions – which under the pretext of the pandemic closed the border to all asylum seekers.  (Travelers are still free to come and go in the millions, which shows that this is not about preventing COVID spread.)

Under Trump, working with partners like the ACLU, we challenged Title 42 as applied to unaccompanied children and won a temporary halt; the Biden administration agreed to exempt kids from the policy. We then brought litigation, Huisha-Huisha v. Mayorkas, against the use of Title 42 to expel families. In September, District Court Judge Emmet Sullivan issued an injunction, but the D.C. Circuit Court of Appeals granted the government’s request for a stay.

Free to expel those seeking asylum, the Biden administration then deported more than 7,000 Haitians back to a country that was devastated by an earthquake and tropical storm, and is suffering political instability after the assassination of its president. So we continue to challenge unlawful policies like Title 42, and have been especially involved in national efforts on behalf of the thousands of Haitians impacted by it.

Many of Joe Biden’s campaign promises were to roll back Trump’s anti-immigrant policies. But that hasn’t happened.

Many of Joe Biden’s campaign promises were to roll back Trump’s anti-immigrant policies. But that hasn’t happened. I feared such a scenario and towards the end of the Trump administration, I started talking to advocates as well as funders about the need to keep Biden true to his commitments. In my history doing this work, we’ve had a lot of immigrants’ rights groups, but we have never had a strong central organization that pushed for the rights of asylum seekers. I floated the concept to other advocates and to a bunch of funders and we ended up forming an organization called Welcome With Dignity.

Welcome With Dignity has become a very robust, active group, with a strong bunch of super smart and wonky policy types, a great communications arm, and a terrific organizing arm to bring other constituencies into advocacy on behalf of asylum seekers. It also has a regional arm, working with our partners across Latin America. If you follow them on social media, you’ll see that we’re an active player in the national conversation around justice for refugees. And we’re in ongoing conversation with those insider government allies who want to do the right thing.

In the U.S., we aspire to a system of justice where the law is applied objectively and without bias to each case. But we know that isn’t always true.

In terms of my more traditional scholarship, I’m working with colleagues at Georgetown and Brooklyn College on a study of administrative decision-making in asylum cases involving gender. This is the continuation of a project funded by a National Science Foundation grant.

Decisions by immigration judges are not published and are also not available in any publicly accessible database. But attorneys to whom CGRS has provided training and technical assistance over the 20 years of our existence have shared with us copies of decisions in their cases. This has given us an unprecedented trove of decisions to analyze.

One of the major objectives of our study is to identify what extrajudicial facts impact case outcomes. In the U.S., we aspire to a system of justice where the law is applied objectively and without bias to each case. But we know that isn’t always true. In this study, we are looking at the extra-legal factors that might impermissibly affect outcomes; we’re asking questions like how the judge’s professional background or U.S. foreign policy towards certain countries affects the ultimate decisions. This work is particularly timely, as there has been much well-deserved criticism of the immigration courts, and many proposals for reform. We hope that our study will contribute to the dialogue around court reform.

Q: Students love that you’re part of this UC Hastings power couple. [Musalo is married to fellow professor and immigration lawyer Richard Boswell.] Do you try to leave your work at work or are these conversations that keep going around the dinner table?

A: You’re reminding me of a funny story. One year, Richard and I went to Cuba over Christmas break. When we came back, I was teaching my refugee law class and one of the students asked what I did over break. I told them I went to Cuba. The student said, “Wow! That’s interesting, did you know that Professor Boswell was in Cuba too?” That was when I had to break it to them that I did know that and, indeed, we’re married. [Laughs.]

Q: What’s the most important piece of wisdom you’ve received?

A: This may sound sappy, but earlier I was mentioning my meditation practice. There are a few sentences I often read when I’m meditating: “I vow to offer joy to one person in the morning and to help relieve the grief of one person in the afternoon.” [Refuge prayer, Thich Nhat Hanh] I think it encapsulates the resilience required to feel joy and the ability to sit with and console people who are suffering. I really like that.