Conducting Psychological Assessments for U.S. Immigration Cases [1st ed.] 9783030498672, 9783030498689

Table of contents :
Front Matter ....Pages i-xv
Why Are We Here? (Robert S. Meyers)....Pages 1-10
A Brief History of Immigration Law in the United States (Robert S. Meyers)....Pages 11-16
Finding Your Way Around the Immigration System (Robert S. Meyers)....Pages 17-24
Admissibility (Robert S. Meyers)....Pages 25-33
Qualifying as an Expert Witness (Robert S. Meyers)....Pages 35-43
The “Extreme Hardship” Waivers (Robert S. Meyers)....Pages 45-59
The “Exceptional and Extremely Unusual Hardship” Waiver (Robert S. Meyers)....Pages 61-69
Domestic Abuse Waivers (Robert S. Meyers)....Pages 71-85
Asylum, Withholding of Removal, and the Convention Against Torture (Robert S. Meyers)....Pages 87-108
The Citizenship Waiver (Robert S. Meyers)....Pages 109-116
Mitigation (Robert S. Meyers)....Pages 117-132
Report Writing and Testifying in Court (Robert S. Meyers)....Pages 135-154
Back Matter ....Pages 155-177

Citation preview

Robert S. Meyers

Conducting Psychological Assessments for U.S. Immigration Cases

Conducting Psychological Assessments for U.S. Immigration Cases

Robert S. Meyers

Conducting Psychological Assessments for U.S. Immigration Cases

Robert S. Meyers New York Psychological Wellness, PC Bayside, NY, USA

ISBN 978-3-030-49867-2    ISBN 978-3-030-49868-9 (eBook) https://doi.org/10.1007/978-3-030-49868-9 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

The book is dedicated to my Family: My wife—Susan (third generation U.S. citizen) My children—David, Daniel, Jonathan, and Jeremy (seventh generation U.S. citizens) My Parents: Allan and Adrienne (thanks, Dad, for reading each chapter and sending your helpful comments!) In loving Memory of my Grandparents: Esther and Nathan Fried Alma and Leon Meyers (my immigrant grandfather)

Preface

As I sit down to write this preface, the world is engulfed in a pandemic and the flow of human life has been slowed to a trickle. Domestic travel is curbed; international travel is at a near standstill. People are “sheltering in place” around the world, and here in the United States we are working from home or are out of work altogether. Despite this overwhelming crisis, anti-immigrant sentiment continues to spew from the current federal administration and from points across the country. Ironically, as the immigrants of this nation are vilified by the President, it is the immigrant population, in large part, exposing themselves to the deadly virus, that continues to work and keep this country operating while others stay at home. In 2012, the Deferred Action for Childhood Arrivals (DACA), a relief program for the children of immigrants brought into this country without authorization, was put into effect by the Department of Homeland Security (DHS). This program allowed these children, also known as Dreamers, to apply for a 2-year forbearance from removal and be eligible to work and apply for various federal benefits. It was later expanded to include the parents of Dreamers. With the change of presidential administrations in 2017, the DHS, citing legal flaws in the program, repealed the program sparking litigation across the country to prevent the rescission. Today, June 18, 2020, the U.S.  Supreme Court ruled that the Department of Homeland Security’s move to rescind DACA was “arbitrary and capricious and therefore not valid.” DACA remains in effect—at least for now. The goal of this book is not to take a political or moral stance. It is not to convince you that those who act against the laws of this nation should be allowed to freely do so. In fact, it is because of the black letter of the law that the concepts of this book can exist. Our system of laws, stemming from the U.S. Constitution, guarantees that our citizens need to be protected from undue hardship—even if that means granting permission to remain here to someone who entered this country without the proper authorization. It is because of the existing immigration laws that this book, and the lessons it provides, is more important now than in any time in recent history. As psychologists we are in the unique position of understanding human nature, diagnosing disorders, vii

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Preface

and making educated prognoses. These skills can play an important role in not only upholding the law but in changing the course of lives at risk of experiencing excessive hardships. As you will read in the pages ahead, conducting psychological assessments in immigration cases falls under the realm of forensic psychology. While many may at first shiver at the thought of engaging in legal proceedings, let me assure you that conducting assessments in immigration cases is a great way to dip your toe in the jurisprudential waters. I do not know—maybe I say that because of my training and experience as both an attorney and a psychologist but I really do believe that this is an important area and one that allows psychologists to expand their practice. Bayside, NY, USA June 18, 2020

Robert S. Meyers

Acknowledgments

This book would not be in existence if it were not for Sharon Panulla, Executive Editor at Springer. She struck up a conversation with me at an ABCT Convention where I was presenting a workshop on conducting assessments in immigration cases. Thank you, Sharon, for believing in this project and seeing it through to completion. I would also like to thank Hemalatha Velarasu, Production Coordinator at Springer. She kept me on task to make sure all the technical and mechanical requirements were met in order to maintain our production schedule. Also thanks to Kala Palanisamy, Project Manager at SPi Global, for the physical production of this book. I know there are many others behind the scenes who have made this publication possible and I thank you for all your work. I hope that you, the reader, will not only enjoy this volume but will be able to effectively employ the skills presented between its covers.

ix

Contents

1 Why Are We Here?����������������������������������������������������������������������������������    1 1.1 What Can Psychologists Do to Assist in an Immigration Case?������    3 Ethical Considerations����������������������������������������������������������������������    4 1.2 Clinical Psychologist vs. Forensic Psychologist vs. Attorney����������    6 2 A Brief History of Immigration Law in the United States ������������������   11 3 Finding Your Way Around the Immigration System����������������������������   17 3.1 Evidentiary Rules������������������������������������������������������������������������������   18 3.2 Hurry Up and Wait!��������������������������������������������������������������������������   19 3.3 Legal Representation������������������������������������������������������������������������   20 3.4 Inside the Courtroom������������������������������������������������������������������������   21 3.5 Immigration Court Procedure ����������������������������������������������������������   23 4 Admissibility��������������������������������������������������������������������������������������������   25 4.1 Health-Related Grounds��������������������������������������������������������������������   26 4.2 The 3-Year or 10-Year Bar for Being Unlawfully Present in the United States ��������������������������������������������������������������������������   27 4.3 Certain Criminal Convictions ����������������������������������������������������������   28 4.4 Crimes Involving Moral Turpitude (CIMT)��������������������������������������   29 4.5 Multiple Criminal Convictions ��������������������������������������������������������   30 Violation of Any Controlled Substance Law������������������������������������   30 Drug Trafficking�������������������������������������������������������������������������������   30 Prostitution����������������������������������������������������������������������������������������   30 Assertion of Immunity for a Serious Crime��������������������������������������   31 Violations of Religious Freedom������������������������������������������������������   31 Human Trafficking����������������������������������������������������������������������������   31 Money Laundering����������������������������������������������������������������������������   31 4.6 Immigrant Membership in the Communist or Any Totalitarian Party������������������������������������������������������������������������������   31

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4.7 Immigration Fraud or Misrepresentation������������������������������������������   32 4.8 Aliens Previously Removed and Unlawfully Present After Previous Immigration Violations ��������������������������������������������   33 5 Qualifying as an Expert Witness������������������������������������������������������������   35 5.1 Types of Evidence����������������������������������������������������������������������������   35 Real Evidence ����������������������������������������������������������������������������������   35 Demonstrative Evidence ������������������������������������������������������������������   36 Documentary Evidence��������������������������������������������������������������������   36 Testimonial Evidence������������������������������������������������������������������������   36 5.2 Evidentiary Rules Pertaining to the Expert Witness ������������������������   39 The Frye Evidentiary Rule����������������������������������������������������������������   39 The Daubert Evidentiary Rule����������������������������������������������������������   40 Federal Rule of Evidence 702. Testimony by Expert Witnesses������   41 5.3 The Effect of Evidentiary Rules on Expert Testimony ��������������������   41 5.4 Experience and the Curriculum Vitae ����������������������������������������������   42 6 The “Extreme Hardship” Waivers ��������������������������������������������������������   45 6.1 Evidentiary Standards ����������������������������������������������������������������������   47 Beyond a Reasonable Doubt Standard����������������������������������������������   47 Preponderance of Evidence Standard ����������������������������������������������   48 Clear and Convincing Standard��������������������������������������������������������   48 6.2 Evidentiary Standard in Immigration Cases ������������������������������������   49 6.3 Determining Qualifying Relatives����������������������������������������������������   49 6.4 Defining Extreme Hardship��������������������������������������������������������������   51 6.5 Qualifying Relative’s Ties to Family and Community ��������������������   53 6.6 Economic Impact������������������������������������������������������������������������������   54 6.7 Health Conditions and Care��������������������������������������������������������������   54 6.8 Social and Cultural Impact����������������������������������������������������������������   55 6.9 Loss of Legal Access/Rights in the United States����������������������������   56 6.10 Country Conditions��������������������������������������������������������������������������   56 6.11 Existing Mental Health Issues����������������������������������������������������������   57 6.12 Supporting Documentation ��������������������������������������������������������������   58 6.13 What Happens If an Extreme Hardship Cannot be Found?��������������   59 7 The “Exceptional and Extremely Unusual Hardship” Waiver������������   61 7.1 Legal Permanent Resident Cancellation of Removal Vs. Non-Legal Permanent Resident Cancellation of Removal Case ������������������������������������������������������������������������������   62 7.2 Exceptional and Extremely Unusual Hardship Vs. Extreme Hardship Cases����������������������������������������������������������������������������������   63 7.3 Cancellation of Removal������������������������������������������������������������������   63 7.4 What Is “Good Moral Character”? ��������������������������������������������������   66 7.5 Assessing Good Moral Character ����������������������������������������������������   68

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8 Domestic Abuse Waivers��������������������������������������������������������������������������   71 8.1 Eligibility Requirements for a Spouse����������������������������������������������   75 8.2 Eligibility Requirements for a Child������������������������������������������������   76 8.3 Eligibility Requirements for a Parent ����������������������������������������������   77 8.4 Domestic Violence����������������������������������������������������������������������������   77 8.5 Physical Abuse����������������������������������������������������������������������������������   78 8.6 Sexual Abuse������������������������������������������������������������������������������������   78 8.7 Psychological/Emotional/Verbal Abuse��������������������������������������������   78 8.8 Economic Abuse ������������������������������������������������������������������������������   80 8.9 Identifying “Extreme Cruelty”����������������������������������������������������������   80 8.10 Intimate Partner Violence������������������������������������������������������������������   81 8.11 Assessing the Victim of Domestic Abuse for Battery or Extreme Cruelty����������������������������������������������������������������������������   84 9 Asylum, Withholding of Removal, and the Convention Against Torture����������������������������������������������������������������������������������������   87 9.1 Affirmative Asylum Processing with USCIS������������������������������������   89 9.2 Defensive Asylum Processing with EOIR����������������������������������������   89 9.3 Withholding of Removal Relief Under the INA ������������������������������   90 9.4 Convention Against Torture Protections ������������������������������������������   90 9.5 Withholding of Removal (Under CAT) and Deferral of Removal����������������������������������������������������������������������������������������   92 Withholding of Removal Under CAT ����������������������������������������������   92 Deferral of Removal��������������������������������������������������������������������������   92 9.6 Conducting Forensic Psychological Assessments in These Types of Cases��������������������������������������������������������������������   92 What’s a Forensic Psychologist to Do?��������������������������������������������   94 9.7 Conducting the Interview and Assessments��������������������������������������   96 9.8 Persecution or a Well-Founded Fear of Persecution ������������������������   97 9.9 Harm and Causation��������������������������������������������������������������������������  100 9.10 Diagnosing Trauma��������������������������������������������������������������������������  103 Getting to the Truth: Poor Memory, Malingering, or Outright Lying������������������������������������������������������������������������������  107 Late Filing of Asylum Application ��������������������������������������������������  108 10 The Citizenship Waiver ��������������������������������������������������������������������������  109 10.1 Causation (Question 10) ������������������������������������������������������������������  114 11 Mitigation��������������������������������������������������������������������������������������������������  117 11.1 Gathering Records����������������������������������������������������������������������������  119 11.2 Forensic Psychosocial Interview of the Subject ������������������������������  122 11.3 Attorney Work Product Rule������������������������������������������������������������  122 11.4 Open-Ended and Close-Ended Questioning ������������������������������������  123 11.5 Competency������������������������������������������������������������������������������������  124

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11.6 What Should the Forensic Psychologist Include in an Interview with the Subject?����������������������������������������������������  124 11.7 Record or Not Record? That Is the Question����������������������������������  125 11.8 Interview Location and License Violations������������������������������������  125 11.9 Interviews with Family, Friends, and Other Relevant Witnesses����������������������������������������������������������������������������������������  125 11.10 Regret, Remorse, and Rehabilitation����������������������������������������������  126 Adam Walsh Cases��������������������������������������������������������������������������  126 11.11 Psychological Assessment��������������������������������������������������������������  131 11.12 Possible Assessment Tools��������������������������������������������������������������  131 11.13 Other Immigration Matters (i.e., Cancellation of Removal, Waivers)����������������������������������������������������������������������  131 12 Report Writing and Testifying in Court������������������������������������������������  135 12.1 Cover Page��������������������������������������������������������������������������������������  137 12.2 Preliminary Information Page��������������������������������������������������������  138 Reason for Referral ������������������������������������������������������������������������  138 Referral Question������������������������������������������������������������������������������ 139 Informed Consent����������������������������������������������������������������������������  139 Abstract of Findings������������������������������������������������������������������������  139 Preliminary Statements ������������������������������������������������������������������  140 12.3 Expert Qualifications����������������������������������������������������������������������  140 12.4 Beginning of the Report������������������������������������������������������������������  141 Sources of Information �������������������������������������������������������������������� 141 12.5 Background Information����������������������������������������������������������������  143 Subjects Personal/Psychosocial History ����������������������������������������  143 Family History��������������������������������������������������������������������������������  143 Psychological/Medical History������������������������������������������������������  143 12.6 Allegations of … (Extreme Hardship, Battery or Extreme Cruelty, Etc.)����������������������������������������������������������������  143 12.7 Appearance and Behavioral Observations��������������������������������������  144 12.8 Assessment Administration������������������������������������������������������������  144 12.9 Results of the Assessments ������������������������������������������������������������  144 12.10 Supporting Research ����������������������������������������������������������������������  145 12.11 Interpretation and Discussion of Findings��������������������������������������  146 Diagnosis����������������������������������������������������������������������������������������  146 Discussion ��������������������������������������������������������������������������������������  146 12.12 Conclusions and Recommendations ����������������������������������������������  147 Recommendations��������������������������������������������������������������������������  147 12.13 Appendix����������������������������������������������������������������������������������������  147

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12.14 Preparing to Testify in Court����������������������������������������������������������  147 Preparing for Testimony������������������������������������������������������������������  148 Qualifications as an Expert ������������������������������������������������������������  150 Reliability and Validity ������������������������������������������������������������������  150 Jargon����������������������������������������������������������������������������������������������  152 Manner of Presentation ������������������������������������������������������������������  152 Appendix A ������������������������������������������������������������������������������������������������������  155 Appendix B ������������������������������������������������������������������������������������������������������  163 Index������������������������������������������������������������������������������������������������������������������  173

Chapter 1

Why Are We Here?

We are a nation of immigrants and the offspring of immigrants. From the theorized earliest settlers 12–15,000 years ago who traveled from Asia to the North American continent across the Bering Strait,1 to the European settlers of the fifteenth century, to all those who landed on our shores from foreign realms, this land has taken in people searching for a better life or to escape horrendous conditions in their own homelands. Today, the United States is home to nearly 325,000,000 people.2 More than 40 million people living here were not born in the United States and of those at least 11.1 million are here without official authorization.3 While every State in the Union has some unauthorized foreign aliens4 within its borders, almost half of this population is found in California, Texas, Florida, New  York, and New Jersey.5 Interestingly, unauthorized immigrants, on average, live in the United States for almost 14 years.6 The majority of unauthorized immigrants are from Mexico but that number is declining.7

1  Stromberg, J. (2014). Ancient Migration Patterns to North America Are Hidden in Languages Spoken Today. http://www.smithsonianmag.com/science-nature/ancient-migration-patternsnorth-america-are-hidden-languages-spoken-today-180950053/#57s1iAAfMJDIt5tz.99 2  U.S.  Census (2017) https://factfinder.census.gov/faces/tableservices/jsf/pages/productview. xhtml?pid=PEP_2016_PEPANNRES&src=pt 3  Passel, J.S. and Cohn, D, (2016) Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009. Pew Research Center. http://www.pewhispanic.org/2016/09/20/overallnumber-of-u-s-unauthorized-immigrants-holds-steady-since-2009/ 4  Those entering the United States without legal status are called “aliens.” “Foreign national” is a synonym and used outside of statutes when referring to noncitizens of the United States. 5  Pew Research Center, (2016). U.S. unauthorized immigration population estimates. http://www. pewhispanic.org/interactives/unauthorized-immigrants 6  Passel, J.S. and Cohn, D, (2016), ibid. 7  Ibid.

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The number of cases appearing before the Immigration Court to remove unauthorized immigrants from the United States has been increasing8 and, with the renewed anti-­immigrant climate currently dominating our national conversation, will no doubt continue to rise. Under the present law, many of these unauthorized immigrants will be able to successfully defend against a deportation case and be permitted to remain in the United States. In this book, we will examine some of the defenses an unauthorized immigrant can present in an immigration proceeding and how a psychologist can play an important role in helping the judge or adjudicator make the decision whether or not to allow an unauthorized immigrant to remain in these United States. We will focus on four issues that can be raised in an immigration case: the political asylum waiver, extreme hardship waiver, domestic abuse waiver, and the citizenship waiver. These are explored because each has a different focus and looks at defenses to remain in the United States from very different perspectives. Why, you might ask, should we work to help people who broke our laws by entering or remaining in the United States illegally when so many others have done so following the proper procedures? It is a good and valid question. The answer is that everyone who wants to enter our country should do so legally. However, our national belief and moral spirit of humanitarianism compels us to look at each case on its own merits rather than paint with a broad stroke that brushes away all we wish to not think about. Consider this: –– A foreign national enters the United States and informs the authorities that he seeks asylum because he is being persecuted due to his religion and fears he will be tortured or killed. –– A woman of foreign nationality is brought into the United States under a visitor’s visa for the purpose of marriage. She is promised that after the marriage her new husband will apply for her citizenship. When she arrives, she marries and is forced to engage in slave-like activities, submit to sexual embarrassments and is physically and verbally abused. Her visa expired and she is now considered “illegal” and in danger of deportation. –– A U.S. citizen marries a foreign national who has remained in this country illegally. They have children and establish a family. After some years, the alien spouse is discovered by the authorities and taken away for a hearing with the intent of deportation. –– A legal permanent resident (LPR) seeks citizenship but is unable to take the citizenship examination because he or she has a psychological disability as a result of a head trauma that prevents her from interpreting written language. In each of these situations, there are extenuating circumstances which makes logical sense to address in a humanistic manner. We will address each of these sce-

8  U.S. Department of Justice (2016). Executive Office for Immigration Review. FY 2016 Statistics Yearbook.

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narios as we progress through this book. As a psychologist and as an attorney who has been practicing for more than 30 years, I will be presenting you with a practical guide to this interesting area of forensic psychology, interweaving many of my own experiences to help prepare you for this, at times, difficult professional arena.

1.1  W  hat Can Psychologists Do to Assist in an Immigration Case? The first thing many psychologists do when they hear they may be involved in litigation is shutter the doors and put out a “Gone Fishin’!” sign. OK, so most psychologists aren’t interested in dealing with the court system. Who can blame them? To do so exposes the individual to extreme scrutiny and possible degradation in an environment that is mostly unfriendly, even at times hostile, to psychologists. So why bother? For one thing, it is a great source of income. But it isn’t an easy one—at least not at first. As with any forensic endeavor, the professional, aside from being on top of their game in their own profession (and having a thick skin), must be fully familiar with the laws and procedures in the area in which they wish to participate. In this instance, it is that of the immigration courts. This is a tricky area since the laws and rules change somewhat more often than in some other areas of the law. But it is not undoable. The assessment report, and potentially the testimony, of a psychologist can play a decisive role in an immigration matter. Under the law, as will be described more fully below, there are circumstances that allow an undocumented immigrant to remain in the country if there is an existing “extreme hardship” or “exceptional and extremely unusual hardship” to the individual filing the application on behalf of the immigrant. In order to do this effectively, the clinical psychologist must be able to separate him- or herself from their traditional training and experience because, unlike the typical psychological assessments and evaluations we are accustomed to performing, immigration evaluations do not necessarily focus on mental health issues. These evaluations are psychosocial in nature and require a different analysis than the standard psychological assessment. What can a psychologist report if there is no clinical finding of a mental health issue? Psychologists are uniquely trained to understand people. A psychosocial evaluation takes a look at the whole person and can provide the immigration court adjudicator with an understanding of the individual whose fate they are deciding. While constructing an empathetic description of the individual to put forward to the court, it also weaves together various aspects of the applicant’s life to provide a psychosocial understanding of the applicant’s issues and presents to the adjudicator

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legal mitigating factors upon which to make a decision.9 The report can help neutralize or dispel existing biases against the applicant or immigrant. It may also explain past bad or questionable behaviors of the immigrant that may interfere with a positive outcome (more on this in the chapters to come). If there are mental health issues, then those can be explained in detail in a manner that makes it easy for the adjudicator to digest.

Ethical Considerations Guideline 1.01: Integrity Forensic practitioners strive for accuracy, honesty, and truthfulness in the science, teaching, and practice of forensic psychology and they strive to resist partisan pressures to provide services in any ways that might tend to be misleading or inaccurate. Guideline 1.02: Impartiality and Fairness When offering expert opinion to be relied upon by a decision maker, providing forensic therapeutic services, or teaching or conducting research, forensic practitioners strive for accuracy, impartiality, fairness, and independence (EPPCC Standard 2.01). Guideline 2.04: Knowledge of the Legal System and the Legal Rights of Individuals Forensic practitioners recognize the importance of obtaining a fundamental and reasonable level of knowledge and understanding of the legal and professional standards, laws, rules, and precedents that govern their participation in legal proceedings and that guide the impact of their services on service recipients (EPPCC Standard 2.01). Guideline 5.02: Fee Arrangements Forensic practitioners are encouraged to make clear to the client the likely cost of services whenever it is feasible, and make appropriate provisions in those cases in which the costs of services is greater than anticipated or the client’s ability to pay for services changes in some way. Forensic practitioners seek to avoid undue influence that might result from financial compensation or other gains. Because of the threat to impartiality presented by the acceptance of contingent fees and associated legal prohibitions, forensic practitioners strive to avoid providing professional services on the basis of contingent fees. Letters of protection, financial guarantees, and other security for payment of fees in the future are not considered contingent fees unless payment is dependent on the outcome of the matter.10 9  Silver, M. (2015).Extreme hardship factors immigration case. In Handbook of mitigation in criminal and immigration forensics. Revised 5th Edition. Silver, NY, NY. 10  American Psychological Association. (2013). Specialty guidelines for forensic psychology. American Psychologist, 68(1), 7–19.

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The American Psychological Association Specialty Guidelines for Forensic Psychology provides the basic structure under which a psychologist practicing in the forensic field should operate. Make no mistake—if you have decided to engage in conducting assessments in immigration cases you are undertaking the role of forensic psychologist and with it comes a number of duties, responsibilities, and pitfalls together with the potential to help those who are in need (and create an additional income stream). When discussing the ethical boundaries of forensic psychology, starting with money is as a good a place as any to begin. I know, some of you reading this now might be thinking that it is crass to talk about money in a profession that prides itself in helping those in need. Maybe this is a profession-wide problem—the thought that money is dirty and needs to be “hush-hush” in the psychologist/patient/client relationship. I can recall, as I am sure many of you can as well, some of my graduate school professors bragging proudly about patients of means who hadn’t paid them in years and how that was a part of our profession and the therapy. Personally, I thought those professors were morons. There is certainly room for the provision of pro-bono services but to ignore the financial aspects of the business of professional practice is, in itself, a malpractice. Maybe that is the reason why psychologists have always seemed to lose when it comes to issues that involve the economic security of this honorable profession. The reality is that the economic landscape for psychologists today is grim, so it is understandable that one would look for new areas in which to expand one’s practice and increase revenue. After going through the rigors (and expense) of graduate school and training, there is no shame in making a living that allows you to afford braces for your kids, take vacations, send them to college, establish your retirement account and everything else in-between. Do not be deceived by the blabber that many of you were indoctrinated with in graduate school—Making a good living can be achieved while at the same time maintaining the high professional and moral standards of our profession. (How many graduate schools even bother to offer courses on how to establish a viable practice? The profession is still stuck in the “academician” and “scientist” mode while continually neglecting the “practitioner.”) It is crucial to know that, unlike the attorney in any matter you might participate in, it is improper for a psychologist to work on a contingency fee basis—meaning that the psychologist is paid only if the party on whose side they were hired wins and/or receives a monetary award. While this is also true of the clinical psychologist (who may be called to testify regarding the treatment of a patient), for the forensic psychologist this becomes an ethical and practical dilemma. A valid and fair line of questioning by the opposing attorney at a deposition or trial would undoubtedly concern fees paid to the expert or fee arrangements agreed upon. If the fee for the expert is dependent upon the outcome of the case, what is the likelihood that the expert would ever testify to anything that even remotely reduces the chances of the subject winning the case and receiving a large award? Ethics aside, the testimony of the expert is automatically tainted by the mere appearance of impropriety. The label of “gun for hire” becomes a strong one that could forever destroy a career.

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I once did an assessment for an attorney which successfully demonstrated his client’s psychological deficits in a complex personal injury matter. The attorney was very satisfied with my work but wasn’t so happy about paying the fee (rarely in personal injury cases do the clients pay for the expenses of a case outright. Attorneys carry the burden of laying out the expenses and are reimbursed at the end of the case only if they are successful. This financial risk is one of the reasons for allowing the “one-third” or percentage contingency attorney’s fee). When the matter was over, the attorney contacted me and told me he had ten or more matters that needed forensic assessment, most of them with a potential value much greater than the matter I had worked on previously. He said he wanted me to do these forensic assessments but only on a contingency basis. I told him I couldn’t do that and explained to him the ethical and practical issues involved. It became immediately obvious that he was not pleased that I didn’t jump at the chance to have ten new assignments—I have never heard from that attorney or any of the other attorneys in his office suite (who had also expressed interest in my conducting forensic evaluations for them) again. But that’s alright. Throw a stone anywhere in the New York metropolitan area or any densely populate area and you are bound to hit a lawyer. There is plenty of work out there to be had that won’t compromise ethical standards.

1.2  C  linical Psychologist vs. Forensic Psychologist vs. Attorney When a treating psychologist is asked to be a witness in a legal proceeding, the findings of that psychologist are already known to the party seeking the testimony—the assessment, diagnosis, treatment, and results of that treatment, if any, have been completed and are known and presumably the reason that treating psychologist was called to testify by one of the parties. The forensic psychologist, on the other hand, is called in to determine what the psychological condition of the individual is in support of that individual’s case or in opposition to it. Forensic assessment is a costly endeavor. As will be discussed later in this book, it includes: conducting an intensive clinical interview or interviews; assessments; interviews with third parties; investigating; finding and reviewing records; analyzing all of the accumulated data; and writing an extensive report for judicial and public consumption. There may be the need for travel, sometimes extensive travel. On top of that, there is the need, in some cases, to appear at a judicial proceeding and testify. This can run thousands and thousands of dollars to the retaining party. Now imagine that you are retained by an attorney or an individual party to assess the psychological issues in support of their case (or the exact opposite, if you are retained to show that there are no psychological issues for the opposing party) and after concluding the assessment process you realize that the results show the opposite of what they came to you for in the first place. In other words, your findings do

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not support the position the retaining party has taken in the matter. The practical dilemma for the forensic psychologist is: report the true results, possibly never receive another referral from that attorney again and risk having that attorney inform others in the legal community that you “don’t play ball”; or skew the report to meet the demands of the retaining party, strengthening the possibility that you will be retained in future matters but possibly putting your reputation on the line as a “gun for hire” and losing your credibility as an expert witness (and the possibility of a professional complaint being made against you and action being taken by a licensing board or psychological association). Sucks, don’t it? Part of the problem is that there are competing interests in the ethical codes of psychologists and those of attorneys. Psychologists strive to find “truth” by using rigorous scientific methods that support a stated position without bias or ­preconception (if that is even humanly possible). Attorneys seek “truth” by zealously defending their clients. That may include means which would be abhorrent to the psychological community but perfectly acceptable in legal circles. Ideally, the forensic psychologist begins the journey in a neutral position and uses the information gathered to draw his or her conclusions. The opinion of the psychologist is based on evidence which has been scientifically and systematically gathered and interpreted based on reliable and valid prior research and experience. The attorney begins the journey with the position and ethical mandate that their client must win—even when they are aware that their client is in the wrong! In fact, the attorney is ethically mandated to “zealously” represent their client. With the opposing attorney working under the same ethical mandate, the stage is set for an adversarial blood match with each side using all under its command to thwart the opposition. How does the forensic psychologist, who is ethically mandated to maintain neutrality, navigate these turbulent waters and still emerge intact? It isn’t easy and is one main reason why most psychologists try to steer clear of the forensic game. Remaining true to the ethical mandates which guide the practice of our profession should be of primary concern to any psychologist—forensic or otherwise. Though in the short term it may be difficult to find referral sources, losing an attorney or law firm’s referrals because you did not provide them with the results they wanted may be economically painful but in the long term would prove to be the most professionally (and economically) valuable. Having the professional reputation as a “straight-shooter” increases your credibility and guarantees that you will be able to survive in the cut-throat world of jurisprudence. It is important to remember the role that you fulfill as a forensic psychologist. While having excellent clinical skills is an important foundation for successful forensic work, the focus of the relationship with the client is entirely different. Confusing the two can lead to serious difficulties. The treating psychologist approaches the professional relationship with an eye towards treatment. In doing so, the psychologist accepts what the patient reports and uses it in the therapy. The position of the treating psychologist is pretty much one-­ sided—meaning the side of the patient sitting in the room. The treating psycholo-

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gist’s relationship is guided by strict adherence to confidentiality, supportiveness, and maybe even advocacy. The forensic psychologist has a duty to provide an opinion that advocates for the conclusions drawn from the data and existing scientific knowledge regardless of who is paying the bill. In fact, the first question the forensic psychologist must ask is, “Who is the client?” For the clinical psychologist the answer to this question is usually an easy one: the person being treated is the patient and as such is entitled to full disclosure and informed consent. For the forensic psychologist, the answer isn’t so straightforward. In most cases, the client is the attorney for the individual being assessed (which is also the smartest way to establish the relationship). In a criminal matter, the client may be the court, prosecution or institution with custody of the individual. This requires the forensic psychologist to fully consider and provide adequate informed consent to the ­individual they are assessing, making certain the individual understands that what they say during an assessment most likely will not remain confidential, that they are not protected under psychologist/patient privilege, and that the results of the assessment may not be consistent with what they are expecting. Additionally, the forensic psychologist should inform the individual who is the subject of the assessment: (1) the identity of the person/court/entity requesting the assessment; (2) the referral question; (3) how the information for the assessment will be collected (i.e., interviews with the subject and others, paper and pencil/ computer-based psychological assessments, documentation [which may require the individual to provide consent and release forms]); (4) that this is not a therapeutic session, no treatment will be provided and no therapeutic relationship will be established; (5) mandatory reporting requirements (i.e., harm to self or others, harm to minors, Tarasoff warning); and (6) who will be receiving the results and report of the assessment. As a practice, I have the individuals I am assessing forensically execute an informed consent agreement which includes all of this and more (see Appendix A). I keep a copy in the file and give the individual being assessed a copy to keep for their records. This reduces the risk of legal and ethical difficulties should the individual claim that he or she did not receive any disclosures from the forensic psychologist or give informed consent. For the most part, the forensic psychologist in immigration matters will only be assessing the alien and individuals involved with the alien for that alien’s case against the government—rarely does the government bring in a forensic psychologist to assess and testify on its own behalf. However, it should be noted that in criminal cases the U.S. Supreme Court, in the matter of Estelle v. Smith (1981),11 ruled that a defendant has a constitutional right to Miranda warnings prior to submitting to a psychological assessment since the statements made during that assessment could be used at trial and could be used against the defendant. In Estelle, Smith, the defendant, along with one other person, held up a store at gunpoint. The store owner

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 Estelle v. Smith, 451 U.S. 454 (1981).

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pulled a gun and Smith’s accomplice shot and killed him. Smith was arrested and charged with murder. The State declared its intention to seek the death penalty. Smith’s behavior in the courtroom prompted the judge to “informally” ask a psychiatrist12 to evaluate Smith to determine his competency to stand trial. The psychiatrist interviewed him one-time for 90 minutes and did not conduct any assessments. He concluded in an informal letter to the judge and testified at a court hearing that Smith was competent. The trial proceeded and Smith was found guilty. At the sentencing phase of the trial, the psychiatrist was called to the stand and testified: (a) “that he had not obtained permission from Smith’s attorneys to examine him;” (b) …that Smith “is a very severe sociopath”; (c) that “he will continue his previous behavior”; (d) that his sociopathic condition will “only get worse”; (e) that he has no “regard for another human being’s property or for their life, regardless of who it may be”; (f) that “[t]here is no treatment, no medicine … that in any way at all modifies or changes this behavior”; (g) that he “is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so”; and (h) that he “has no remorse or sorrow for what he has done.”13 The jury returned with a death sentence. The case eventually made its way to the U.S. Supreme Court which ruled that the use of the statements by Smith made during the evaluation to determine competency to stand trial could not be used against him in any other part of the trial without sufficient warning that his statements could be used against him. The ethical misgivings of the psychiatrist aside, failing to provide the appropriate warnings constitutes a violation of the individual’s Fifth Amendment right against self-incrimination. Wait a second! Smith, criminal though he may have been, was a citizen of the United States. Does this mean that, if the occasion should arise, an illegal alien has constitutional rights also? Well… yes. And… no. First, we must establish that immigration matters are, by and large, civil matters as opposed to criminal ones. This is an important distinction since many of the constitutional protections and U.S. Supreme Court decisions pertain to criminal matters and are not applicable in civil cases. The U.S.  Supreme Court has held that any person on U.S. soil, whether here legally or illegally, is entitled to some, but not all, of the protections guaranteed under the Constitution. These include the Fifth, Sixth,14 and Fourteenth Amendments.15 The Fifth Amendment includes the right to a grand jury, to not be placed in double jeopardy, the right against self-incrimination, and the right to due process. The Sixth Amendment guarantees, in criminal prosecutions, the right to counsel, to a trial by jury and to confront witnesses. The Fourteenth Amendment guarantees that no person shall be deprived of “life, liberty,

 The judge appointed James Grigson, known in the Texas press as “Doctor Death.”  Estelle v. Smith, 451 U.S. 454 (1981). 14  Wong Wing v. United States, 163 U.S. 228 (1896). 15  Yick Wo v. Hopkins, 118 U.S. 356 (1886). 12 13

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or property, without due process of law,” nor shall any person be denied “equal protection of the laws.” That said, illegal immigrants have the right to defend themselves at a hearing in an immigration court. They have the right to all of the judicial substantive and procedural protections, guarantees, and processes that a citizen would have. They have the right to confront witnesses. They have the right to have an attorney represent them; however, that privilege ends there. Unlike a citizen, the alien is responsible for hiring and paying for legal representation on their own—the government has no obligation or responsibility to provide an attorney. This is because the Constitution under the Sixth Amendment only guarantees a government paid for attorney in criminal matters. Since immigration cases are deemed civil and not criminal in nature, the alien receives the benefit of “due process” but not of free legal counsel. But even the “due process” guarantee has its limits in immigration court. While the Fifth Amendment due process right is extended to aliens, thus entitling them to a full and fair hearing, the Immigration Judge has “broad discretion” in the manner in which the hearing is conducted.16 A due process violation will be deemed to have occurred only when “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”17 There is an exception to an alien’s right to judicial process known as an “expedited removal.” Expedited removal, created under the Illegal Immigration and Immigrant Responsibility Act of 1996, gives immigration officials the legal authority to summarily deport those who arrive at the border who are deemed inadmissible (more on admissibility in Chapter 4) and those who enter the country illegally if they are apprehended within 14  days and within 100  miles of the Mexican or Canadian border. The alien can be detained while awaiting deportation and there is no right to an appeal of an immigration officer’s decision to use the expedited removal procedure. The expedited removal procedure does not apply to those aliens claiming asylum.

 Mwathi v Holder, U.S. Court of Appeals for the Sixth Circuit, No. 09-3915 (2011); Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009); Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003). 17  Mwathi v Holder, U.S. Court of Appeals for the Sixth Circuit, No. 09-3915 (2011); Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005); Ladha v. INS, 215 F.3d 889, 904 (9th Cir. 2000). 16

Chapter 2

A Brief History of Immigration Law in the United States

“Congress shall have the power…[t]o establish an uniform Rule of Naturalization…”.1 “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”2

The journey to the shores of the United States is contained in the many stories we hold personally or that have been passed down to us through our family histories. These are stories that make us uniquely who we are as a nation—a nation of immigrants or descendants of immigrants. Each voyage to the United States was prompted by the desire to live in a land free of danger and oppression, the hopes for a better economic future and life or to reunite family. As of 2016, there were 43.7 million foreign born persons living in the United States making up 13.5% of the population.3 Forty-five percent of that population have become naturalized U.S. citizens.4 The United States Constitution, at Article 1, Section 8 (4), provides Congress with the power to control immigration into the United States. At the birth of our nation, in order to become a citizen, the 1790 Naturalization Act required that the applicant be a “free white person” of “good moral character” who had resided in the country for at least 2 years.5 This restriction on naturalization based on race opened

 U.S. Constitution. Article I, Section 8, Clause 4.  U.S. Constitution. Amendment 14, Section 1. 3   Pew Research Center tabulations of 2016 American Community Survey (1% IPUMS), (2018).“Statistical Portrait of the Foreign-Born Population in the United States, 2016” http://www. pewhispanic.org/2018/09/14/facts-on-u-s-immigrants-current-data/. Accessed 3 Feb 2019. 4  Pew Research Center, (2018). What is the legal status of immigrants in the U.S.? http://www. pewresearch.org/fact-tank/2018/11/30/key-findings-about-u-s-immigrants/. Accessed 3 Feb 2019. 1 2

5  Cohn, D (2015). How U.S. immigration laws and rules have changed through history. http://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history

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the door for an overwhelming migration of white Europeans to the New World. Despite this limitation, anti-immigration sentiment was quick to take hold in this burgeoning new nation as the first political move to limit an already limiting immigration policy extended the residency requirement for naturalization from 2 years to five6 out of fear that the influx of newcomers would overwhelm the political system against those already established here. That number of years of residency has remained the law to the present but the exclusion of non-white people continued for some time before it was removed from the statute books. Passage of immigration laws in the United States, from the beginning, reflected political and racial views as well as the changing circumstances around the world which brought people to our shores. While Congress enacted some laws regulating immigration, individual states also enacted their own statutes designed to curtail “undesirables” from entering their territory. At the conclusion of the Civil War, a number of restrictive State immigration laws were enacted which placed limitations, taxes, fees, and other restrictions on those who they would admit into their State. Port states, such as New York and California, had the power to prevent ships from docking unless a State inspector approved of the individuals aboard and collected the requisite fees. It wasn’t until the U.S. Supreme Court ruling in 1875, in the matter of Chy Lung v. Freeman,7 that it was declared “[t]he passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress.”8 Chy Lung, a Chinese national, was a passenger on an ocean vessel headed for the coast of California. At that time the law in California denied entry of any foreign born individuals deemed to be “lewd and debauched women” unless the captain of the vessel posted a bond and paid additional fees to the California Commissioner of Immigration. The Commissioner had full discretion in determining, without any legal process, evidence or oversight, which individuals might fit this and other “undesirable” categories. In the word of the U.S. Supreme Court, the Commission could board a vessel near the shores of California and declare: “These are idiots, these are paupers, these are convicted criminals, these are lewd women, and these others are debauched women. I have here a hundred blank forms of bonds, printed. I require you to fill me up and sign each of these for $500 in gold, and that you furnish me two hundred different men, residents of this state, and of sufficient means, as sureties on these bonds. I charge you five dollars in each case for preparing the bond and swearing your sureties, and I charge you seventy-five cents each for examining these passengers, and all others you have on board. If you don’t do this, you are forbidden to land your passengers under a heavy penalty. But I have the power to commute with you for all this for any sum I may choose to take in cash. I am open to an offer, for you must remember that twenty percent of all I can get out of you goes into my own pocket, and the remainder into the Treasury of California.”9

 1795 Naturalization Act.  Chy Lung v. Freeman, 92 U.S. 275 (1875). 8  Ibid. 9  Ibid. 6 7

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In declaring the California statute unconstitutional, the Court removed from the States all power to regulate those who entered their territory from foreign lands and placed that responsibility solely with the U.S. Congress. The 1875 Page Law10 prohibited bringing any Asian into the country against their will. Specifically, it prohibited the transportation of women from Asian countries into the United States for the purposes of prostitution, “cooly”11 laborers, and those who have been convicted of a felony except if the crime was political in nature.12 In the late 1800s, as a result of economic and political pressures, Congress passed the first immigration law which specifically denied entry to the United States of a particular foreign national with the passage of the Chinese Exclusion Act of 1882.13 This Act remained in effect until 1943 with the passage of the Magnuson Act14 which, due to the allied relationship of China and the United States in World War Two, allowed Chinese immigrants to enter the country again—but only at the rate of 105 individuals per year! Other immigration laws enacted by Congress taxed each incoming immigrant 50 cents and turned away those deemed to be “idiots, lunatics, convicts, and persons likely to become a public charge.”15 Congress, in passing the 1891 Immigration Act, included language for the first time that excluded anyone from admission to the United States who was “convicted of a felony or other infamous crime or misdemeanor involving moral turpitude” (emphasis added). The Immigration Act of 1891 empowered the federal government with full control for allowing immigrants into country. On January 2, 1892, the United States opened its most famous immigration station, Ellis Island. Other immigration stations were opened throughout the nation throughout the early 1900s.16 The criteria for exclusion of hopeful entrants into the country was expanded to include “polygamists, persons convicted of crimes of moral turpitude, and those suffering loathsome or contagious diseases.”17 At the conclusion of World War One, mass numbers of immigrants began to arrive in the United States. In response, the Immigration Acts of 1921 and 1924 were passed marking the first national origins quota system based on a foreign nation’s representation in past United States census figures.18 As a result of these

 1875 Page Law. Sess. II, Chap. 141; 18 Stat. 477. 43rd Congress; March 3, 1875.  A derogatory term for Asians. 12  1875 Page Law, ibid. 10 11

 1882 Chinese Exclusion Act. Sess. I, Chap. 126; 22 Stat. 58. 47th Congress; Approved May 6, 1882.

13

 1943 Magnuson. H.R. 3070; Pub.L. 78–199; 57 Stat. 600. 78th Congress; December 17, 1943.  USCIS, (2012). Overview of INS History. https://www.uscis.gov/sites/default/files/USCIS/ History%20and%20Genealogy/Our%20History/INS%20History/INSHistory.pdf 16  USCIS, (2012), above. 17  USCIS, (2012), above. 18  USCIS, (2012), above. 14 15

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severe entry limitations, illegal immigration began to rise rapidly. In response, Congress created the U.S. Border Patrol and the Immigration Board of Review.19 The United States Immigration and Naturalization Service (INS) was created in 1933. Its job throughout most of the 1930s was focused on the “investigation, ­exclusion, prevention of illegal entries, deportation of criminal and subversive aliens, and cooperating closely with the Department of Justice’s United States Attorneys and Federal Bureau of Investigation (FBI) in prosecuting violations of immigration and nationality laws.”20 Despite the strict national quotas remaining in place, post-World War Two the United States responded to the humanitarian crisis created by the displacement and subjugation of individuals affected by the war and the rise of communism by creating exceptions to the quotas to allow those individuals entry. Other examples of the quota restrictions included The War Brides Act of 1945 and the Fiancées Act of 1946 which eased admission of the spouses and families of returning American soldiers.21 World War Two left the United States with a smaller workforce at home which created labor shortages for many businesses including the farming industry. So as not to damage the nation’s food supply, Congress enacted The Bracero Program, an agreement between the United States and Mexico that allowed temporary workers to enter the country. This program continued after the conclusion of the War. However, despite this program which allowed hundreds of thousands to enter the United States under a temporary visa, many Mexicans crossed the border illegally seeking employment and setting off a national panic over illegal aliens, communists, subversives, and organized crime figures which resulted in increased enforcement of immigration laws and in Mexican border enforcement.22 With the passage of the Immigration and Nationality Act (INA) of 1952, Congress removed all racial barriers to immigration and naturalization but retained the national origins quotas. In 1965, Congress replaced the national origins system “with a preference system designed to reunite immigrant families and attract skilled immigrants to the United States.”23 The 1965 amendment defined refugees as “foreign nationals in noncommunist countries who had fled a communist country or the Middle East and were unwilling to return due to persecution or fear of persecution on account of race, religion, or political opinion. They also included people who were uprooted by

 USCIS, (2012), above.  USCIS, (2012), above. 21  USCIS, (2012), above. 22  USCIS, (2012), above. 23  USCIS, (2012), above. 19 20

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15

catastrophic natural calamities as defined by the president.”24 The amendment granted refugees a temporary immigration status which could be adjusted to permanent resident status after 2 years and marked the first time that Congress allowed for a permanent basis for the admission of refugees into the country. The Refugee Act of 1980 created a uniform and comprehensive policy to proactively address refugee admissions. It removed the geographic and ideological limits on the definition of “refugee” that had been introduced by the 1965 Amendments to the INA and formally adopted the United Nations’ definition of refugee.25 Further, the 1980 Act providing the first statutory basis for asylum, increased the number of refugees who could be admitted to the United States annually, and created the Office of Refugee Resettlement to oversee resettlement programs. Under the Act, the President, in consultation with Congress, sets the annual number of refugee admissions and the allocation of these admissions to refugees coming from various parts of world.26 Changes in the immigration laws in the 1980s and 1990s focused on enforcing immigration laws against employers of illegal aliens, allowed for the legalization of residence of certain illegal aliens and increased the number of visas made available to immigrants.27 These changes also placed the naturalization process under the auspices of the INS, giving it the authority to grant or deny naturalization petitions.28 The attacks of September 11, 2001 brought about significant changes to U.S. immigration laws and procedures. Border security and protection against terrorist attacks became a primary focus while still allowing qualified immigrants to enter the country.29 The Homeland Security Act of 2002 restructured the way in which immigration matters were handled from admission to enforcement. Under the newly formed Department of Homeland Security (DHS), three agencies (U.S.  Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement) were created and charged with the coordinated mission of securing our nation from outside dangers with an emphasis on border security and removing criminal aliens to protect the nation from terrorist attacks. This law, which projected the urgency for a stricter immigration and security policy, was enacted by Congress while still trying to retain our nation’s commitment to welcoming lawful immigrants and supporting their integration and participation in American civic culture.

 USCIS, (2018), https://www.uscis.gov/history-and-genealogy/our-history/refugee-timeline. Accessed 9 Mar 2019.

24

 The 1951 Refugee Convention is a key legal document and defines a refugee as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” https://www.unhcr.org/what-is-a-refugee.html. Accessed 9 Mar 2019. 26  USCIS, (2018), above. 27  USCIS, (2012), above. 28  USCIS, (2012), above. 29  USCIS, (2012), above. 25

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The U.S.  Customs and Border Protection (CPB) is charged with preventing drugs, weapons, terrorists and other inadmissible persons from entering the country. Its stated mission is: “To safeguard America’s borders thereby protecting the public from dangerous people and materials while enhancing the Nation’s global economic competitiveness by enabling legitimate trade and travel.”30 The U.S. Immigration and Customs Enforcement (ICE) is the DHS enforcer. It is tasked with upholding the immigration laws of the United States both within and outside our nation’s borders. Their mission includes the “enforcement of immigration law against those who present a danger to our national security, are a threat to public safety, or who otherwise undermine the integrity of our immigration system.”31 Public safety threats include: “criminal aliens and gang members, as well as individuals who have otherwise violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.”32 ICE manages all aspects of the immigration enforcement process, including identification and arrest, domestic transportation, detention, bond management, and supervised release, including alternatives to detention.33 The U.S. Citizenship and Immigration Services (USCIS) is responsible for overseeing the lawful immigration of aliens to the United States and naturalization of new American citizens. Its mission is to administer “the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”34 It is through USCIS that the immigration courts operate. Accordingly, our focus throughout this book will be on the USCIS.

30

 U.S. Customs and Border Protection (2016). https://www.cbp.gov/about. Accessed 9 Mar 2019.

 U.S. Immigration and Customs Enforcement (2018). https://www.ice.gov/about. Accessed 9 Mar 2019.

31

 Ibid.  Ibid. 34  USCIS, (2018a), https://www.uscis.gov/aboutus 32 33

Chapter 3

Finding Your Way Around the Immigration System

Maria was already very nervous. She had to appear in the Immigration Court and she had no idea what to expect. Maria had never been to a “Court” before and had heard many stories of mean judges. Though she was able to communicate in English enough to get by, Maria was afraid she wouldn’t understand what was going on—she barely understood her own attorney and was grateful when the interpreter was available. She wished she had known in advance what she was going to see and hear. Everything seemed so alien to her.

In 1983, the immigration court system was reorganized and placed under the Department of Justice’s newly created Executive Office for Immigration Review (EOIR). Under the auspices of the U.S. Attorney General, the immigration courts and the immigration appellate review court, the Board of Immigrant Appeals (BIA), were set up to administer the Nation’s immigration court system. After the 9/11 attacks, the creation of the Department of Homeland Security (DHS) in 2002 officially abolished the Immigration and Naturalization Service and took over its enforcement and benefit functions. The U.S. Attorney General maintained authority over the EOIR. Bear in mind that the U.S. Attorney General is the head of the Department of Justice and is the chief law enforcement officer of the Federal Government. This short chapter will give an idea of how the court is set up and some of the procedural aspects of the immigration court system. At the outset, it should be noted that the immigration court, though it may present with the appearance of being a judicial body (see the courtroom display below), it is, in fact, not. As you can see in Fig. 3.1, the EOIR falls, not under a judicial agency or branch of government, but under that of the U.S. Justice Department (and fairly low on the flowchart, at that). Figure 3.2 shows the agency structure of the EOIR, headed by a Director appointed by the Attorney General. The Attorney General is the final arbiter of any immigration court decision except if overridden by a United States Federal Court. This configuration is important to note because, unlike the federal or state judicial systems, the immigration court is not an independent body. The immigration judge is an attorney employed by the Justice Department and serves at the pleasure © Springer Nature Switzerland AG 2020 R. S. Meyers, Conducting Psychological Assessments for U.S. Immigration Cases, https://doi.org/10.1007/978-3-030-49868-9_3

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Fig. 3.1  The U.S. Department of Justice/U.S. Attorney General’s Office Flow Chart. https://www. justice.gov/agencies/chart

of the Attorney General. The Board of Immigration Appeals is made up of a panel of members who are appointed by, and serve at the pleasure of, the Attorney General. As previously noted, the Attorney General retains the power and authority to review any matter in the immigration court and make a final decision in a case before an immigration court or the BIA. The U.S. Attorney General is a political appointee, nominated by the President and confirmed by the U.S. Senate. This means that in the immigration court the government is both the prosecution and the judge!

3.1  Evidentiary Rules The Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) do not apply to the immigration courts. They can be used for guidance but instead, the EOIR has established its own set of rules and procedures which are more lax than those of the federal rules but can also lead to conflicts when cases are brought to the federal courts on appeal. Assessments and reports by forensic psychologists for an immigration matter should be conducted and prepared in such a way so as to be recognized by the immigration court and the federal courts in the event of an appeal.

3.2 Hurry Up and Wait!

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Fig. 3.2  The Executive Office for Immigration Review flowchart. https://www.justice.gov/eoir/ organization-chart

3.2  Hurry Up and Wait! In the first quarter of 2019, there were 821,726 pending cases in the immigration court.1 There were only 424 immigration judges nationwide to hear these cases2— that is more than 1900 cases per judge. The backlog of cases is profound. It can take many years for an immigration matter to make its way through the lower immigration court process. It is not uncommon (it has happened to me many a time) that you will be rushed to complete an assessment and report because of a filing deadline only to find out that the matter had been scheduled for trial two and three years later. As recently reported by the American Bar Association (ABA), the immigration court and the system it is ensconced in is “… irredeemably dysfunctional and on the brink of collapse…”3 The ABA cites three areas in which the immigration court falls short: “(1) lack of judicial independence and political interference with the immigration courts;   (2) policies and practices that threaten due process; and   (3) longstanding and widespread under-resourcing of the immigration courts.”4

1  Department of Justice (2019). Workload and adjudication statistics. Adjudication statistics. https://www.justice.gov/eoir/page/file/1060836/download. Accessed 4 Apr 2019. 2  Department of Justice (2019). Workload and adjudication statistics. Immigration Judge (IJ) Hiring. https://www.justice.gov/eoir/page/file/1104846/download. Accessed 4 Apr 2019. 3  American Bar Association (2019). 2019 Update reforming the immigration system. 4  Ibid, at UD 2–4.

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3.3  Legal Representation According to the EOIR, at the beginning of 2019, 67% of foreign nationals appearing before the immigration court were represented by counsel.5 That is a huge increase from the 2012 legal representation rate of 37% for foreign nationals in immigration court.6 This is important because represented foreign nationals have a five times greater likelihood of success with their matter than those who are not represented.7 And, of course, there is more likelihood that a forensic psychologist will be called upon to participate in a matter when there is representation.

Fig. 3.3  An Example of a Typical Immigration Courtroom. (created by RSM)

5  Department of Justice (2019). Workload and adjudication statistics. Current Representation Rates. https://www.justice.gov/eoir/page/file/1062991/download. Accessed 4 Apr 2019. 6  Eagly, I. and Shafer, S. (2016). Access to Counsel in Immigration Court. https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court. Accessed 4 Apr 2019. 7  Eagly, I. and Shafer, S. (2016). Access to Counsel in Immigration Court. https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court. Accessed 4 Apr 2019.

3.4  Inside the Courtroom

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3.4  Inside the Courtroom There are 63 immigration courts and two adjudication centers throughout the United States.8 An immigration courtroom looks much like that of a regular courtroom found in any federal or state courthouse. However, there are no jury trials in immigration cases, hence, no jury box. Figure  3.3 illustrates an example of what an immigration courtroom might look like (different jurisdictions may have a similar but slightly different arrangement). The immigration judge sits at the center of the proceeding. According to the EOIR Practice Manual, “Immigration Judges are responsible for conducting Immigration Court proceedings and act independently in deciding matters before them. Immigration Judges are tasked with resolving cases in a manner that is timely, impartial, and consistent with the Immigration and Nationality Act, federal regulations, and precedent decisions of the Board of Immigration Appeals and federal appellate courts.”9 “Immigration Judges generally have the authority to: make determinations of removability, deportability, and excludability; adjudicate applications for relief from removal or deportation, including, but not limited to, asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, adjustment of status, registry, and certain waivers; review credible fear and reasonable fear determinations made by the Department of Homeland Security (DHS); conduct claimed status review proceedings; conduct custody hearings and bond redetermination proceedings; make determinations in rescission of adjustment of status and departure control cases; take any other action consistent with applicable law and regulation as may be appropriate, including such actions as ruling on motions, issuing subpoenas, and ordering pre-hearing conferences and statements…. Immigration Judges also have the authority to: conduct disciplinary proceedings pertaining to attorneys and accredited representatives; administer the oath of citizenship in administrative naturalization ceremonies conducted by DHS; conduct removal proceedings initiated by the Office of Special Investigations.”10 “Although Immigration Judges exercise broad authority over matters brought before the Immigration Courts, there are certain immigration-related matters over which Immigration Judges do not have authority, such as: visa petitions; employment authorization; certain waivers; naturalization applications; revocation of naturalization; parole into the United States; applications for advance parole; employer sanctions; administrative fines and penalties; and, determinations by the Department of Homeland Security involving safe third country agreements.”11

8  U.S. Department of Justice (2019). The Office of the Chief Immigration Judge. https://www.justice.gov/eoir/office-of-the-chief-immigration-judge. Accessed 4 Apr 2019. 9  The Office of the Chief Immigration Judge (2016). Immigration Court Practice Manual. https:// www.justice.gov/eoir/page/file/1084851/download. Accessed 5 Apr 2019. 10  Ibid at page 7. 11  Ibid at page 8.

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On either side of the Immigration Judge (IJ), there may be the judge’s law clerk and the court interpreter. The law clerk is responsible for aiding the IJ in the administration of cases, answering procedural questions for the litigants, researching and preparation of memoranda of law, drafting decisions on motions and trials, and other courtroom duties. Assistance by a law clerk helps the IJ to move cases along. Not every judge is assigned his or her own law clerk—in fact, some immigration courts have only one law clerk for every four or more IJs, further contributing to the huge backlog. An interpreter will only be called in if the foreign national or any of the witnesses are unable to effectively communicate in English. “Interpreters are provided at government expense to individuals whose command of the English language is inadequate to fully understand and participate in removal proceedings. In general, the Immigration Court endeavors to accommodate the language needs of all respondents and witnesses. The Immigration Court will arrange for an interpreter both during the individual calendar hearing and, if necessary, the master calendar hearing… The Immigration Court uses staff interpreters employed by the Immigration Court, contract interpreters, and telephonic interpretation services. Staff interpreters take an oath to interpret and translate accurately at the time they are employed by the Department of Justice. Contract interpreters take an oath to interpret and translate accurately in court.”12 “If a party anticipates that an interpreter will be needed at the individual calendar hearing, the party should request an interpreter, either by oral motion at a master calendar hearing, by written motion, or in a written pleading.”13 All proceedings are recorded and thus there are microphones located throughout the courtroom to capture what occurs during a hearing/trial. Immigration hearings are recorded electronically by the immigration judge. “Parties may listen to recordings of hearings by prior arrangement with Immigration Court staff... The entire hearing is recorded except for those occasions when the Immigration Judge authorizes an off-the-record discussion. On those occasions, the results of the off-the-­ record discussion are summarized by the Immigration Judge on the record. The Immigration Judge asks the parties if the summary is true and complete, and the parties are given the opportunity to add to or amend the summary, as appropriate. Parties should request such a summary from the Immigration Judge, if the Immigration Judge does not offer one.”14 The transcript from these court recordings will be used in the event of an appeal. There is a place for the witness to sit and testify as well as separate tables for the government attorney (also referred to as assistant chief counsel or prosecution) and the respondent (the foreign national) and his or her attorney. The government attorney is an employee of the Department of Homeland Security (DHS). DHS is charged with enforcing our immigration laws and, as such, is the “prosecutor” in immigration matters.

 The Office of the Chief Immigration Judge (2016). Immigration Court Practice Manual. https:// www.justice.gov/eoir/page/file/1084851/download. Accessed 5 Apr 2019. 13  Ibid at page 84. 14  Ibid at page 69. 12

3.5  Immigration Court Procedure

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3.5  Immigration Court Procedure The foreign national’s immigration case begins in the immigration court with the master calendar hearing. The forensic psychologist usually has nothing to do with this portion of the case. The master calendar hearing is where the government files its charges and presents its allegations for seeking removal of the foreign national. The respondent’s attorney presents defenses to the DHS allegations or offers that some kind of relief from removal may exist. The master calendar hearing is a serious event—the Immigration Judge could, after hearing both sides, order the removal of the foreign national. Other legal and procedural issues are raised and resolved at the master calendar hearing. Unlike in Federal and State court, there is no formal exchange of discovery (evidence) in immigration court. The master calendar hearing is also used to schedule the matter for document submission, status conferences or discuss preliminary substantive and procedural issues involved in the individual’s application. When all of the preliminary issues have been resolved, the matter is scheduled for trial, known in the immigration court as “individual calendar hearings” or “merits hearings.” The individual hearing begins with the IJ turning on the recording device. Though the IJ has the authority to conduct the hearing in any way he or she sees fit, generally each party makes an opening statement, raises objections to evidence produced by the other side, presents witnesses and evidence in support of that side’s case, cross-examines witnesses and objects to testimony believed to be improper, and makes a closing statement. Witnesses are placed under oath in the same manner as would occur in a Federal or State court. The IJ has the right to ask questions of any witness appearing at the hearing. At the conclusion of the case, the IJ will decide which side has proven their case. The IJ’s decision can be made orally immediately following the hearing or the IJ can provide a written decision at a later date. As is shown in Fig. 3.4, once a decision has been rendered, the parties have some options if they are not in agreement with the IJ’s ruling. A “motion to reopen” can be made asking the IJ to review and consider new facts or evidence in the case which can have a significant impact on the IJ’s decision. The party making the motion to reopen must clearly show that the new evidence offered is material to the case and was not known or available during the entire proceeding. A “motion to reconsider” can be made by a party who believes that the IJ made an error in law or fact in his or her decision and asks the IJ to reexamine the ruling. The party can also make this motion if there had been a change in the law that should have been considered. The party making the motion cannot introduce new evidence and can only base the reasoning for the motion on the existing record. The third option for the unsuccessful party is to appeal the IJ’s decision to the BIA. As shown in Figs. 3.1 and 3.2, the BIA is under the U.S. DOJ’s EOIR (wow— how’s that for a mouthful of acronyms!). The BIA is the appellate review entity charged with reviewing cases from the immigration court to determine if the immi-

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Conducting Psychological Assessments for U.S. Immigration Cases

STRUCTURE OF THE IMMIGRATION COURT SYSTEM Immigration Court

Board of Immigration Appeals

Federal Court Of Appeals

United States Supreme Court

(BIA) Motion to reopen

Motion to reopen

Motion to reconsider

Motion to reconsider

Motion to Reopen –consider new evidence or a change in circumstances Motion to Reconsider –reconsider his or her ruling based on an error of fact or law

Fig. 3.4  Structure of the Immigration Court System. (created by RSM)

gration law and facts have been properly applied by the IJ in his or her decision. BIA decisions are final unless the Attorney General overrides the BIA decision. BIA decisions are also reviewable on appeal by a Federal Court of Appeals. After a decision by the BIA has been rendered, the unsuccessful party has the opportunity to appeal to a U.S. Court of Appeals. The federal appellate court has the authority to review immigration decisions for constitutional violations or a question of law. Not all federal court jurisdictions agree on what constitutes certain questions of law and the U.S. Supreme Court has not provided much guidance in this area. Therefore, federal appellate decisions can vary greatly depending upon the federal circuit in which the immigration court resides. U.S. Court of Appeals decisions can be appealed to the U.S. Supreme Court. But, the U.S. Supreme Court is not bound to accept a case from the lower court. In fact, of the more than 7000 cases it is asked to review each year, the Court agrees to hear no more than approximately one hundred and fifty matters.15 Therefore, Supreme Court decisions are extremely rare.

 https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about. Accessed 6 Apr 2019.

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Chapter 4

Admissibility

Admissibility to the United States is defined as the eligibility of a foreign national to lawfully enter the United States after inspection and authorization by an immigration officer.1 Aside from the limits placed by law on the number of immigrants permitted to enter the United States each year, there are also a number of reasons for an applicant to be deemed “inadmissible” or, in other words, not eligible for entry. Section 212 of the immigration law provides the reasons for denying an alien admissibility which include: health-related grounds; certain criminal convictions; immigrant membership in the Communist or any Totalitarian Party; immigration fraud or misrepresentation; human smugglers; the 3-year or 10-year bar for being unlawfully present in the United States; aliens previously removed and unlawfully present after previous immigration violations; being unlawfully present after previous immigration violations, if filed by a VAWA self-petitioner; and other grounds of inadmissibility. In most cases, the initial decision to grant entry into the country is a function of the United States Citizenship and Immigration Service (USCIS). Anyone applying to enter the country who meets any of the Section 212 criteria would be deemed ineligible for a visa or admission on either a permanent or temporary basis unless they are issued a waiver of inadmissibility. Inadmissibility can also be determined based upon “unlawful presence.” These are situations in which the foreign national entered the country without first applying for and receiving a visa (entered without inspection) or if they did go through inspection, they remained in the country after the expiration date of their visa.

1  INA: ACT 212—GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILITY. Sec. 212. [8 U.S.C. 1182]. Inadmissibility—Not being allowed to lawfully enter the United States or obtain a visa abroad based on acts or conduct that is listed as an inadmissibility ground in section 212 of the Immigration and Nationality Act. https://www.uscis.gov/tools/glossary?topic_id=i#alpha-listing. Accessed 10 Mar 2019.

© Springer Nature Switzerland AG 2020 R. S. Meyers, Conducting Psychological Assessments for U.S. Immigration Cases, https://doi.org/10.1007/978-3-030-49868-9_4

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4.1  Health-Related Grounds Upon inspection, anyone who is deemed to have a communicable disease that can have a significant effect on the public health will be deemed inadmissible.2 The diseases that have been determined to be of considerable concern include: chancroids3; gonorrhea; granuloma inguinale4; infectious leprosy; lymphogranuloma venereum5; infectious syphilis; and active tuberculosis. Those who cannot show proof of having been vaccinated for “mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis,6 influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices”7 will also be deemed inadmissible. An individual who is found to have a physical or mental disorder and behavior associated with that disorder who may pose, or has posed, a threat to the property, safety, or welfare of the foreign national or others will similarly be deemed inadmissible.8 Drug abusers or addicts are precluded from entry into the United States, as well.9 There are two types of physical or mental disorder and harmful behaviors that can lead to a determination of inadmissibility: having a current physical or mental disorder which is associated with harmful behavior; and, having had a past physical or mental disorder, with associated harmful behavior and that disorder and behavior is likely to occur again or lead to other harmful behavior.

 USCIS—Inadmissibility and Waivers. https://www.uscis.gov/sites/default/files/USCIS/ About%20Us/Electronic%20Reading%20Room/Customer%20Service%20Reference%20Guide/ Inadmissibillity_and_Waivers.pdf#%5B%7B%22num%22%3A91%2C%22gen%22%3A0%7D %2C%7B%22name%22%3A%22XYZ%22%7D%2C53%2C564%2C0%5D 3  Chancroid is a bacterial infection transmitted through sexual intercourse which causes painful sores on the genitals. Gale Encyclopedia of Medicine. (2008). https://medical-dictionary.thefreedictionary.com/chancroid. Accessed 16 Feb 2019. 4  Granuloma inguinale is a sexually transmitted infection that affects the skin and mucous membranes of the anal and genital areas. Gale Encyclopedia of Medicine. (2008). https://medical-dictionary.thefreedictionary.com/granuloma+inguinale. Accessed 16 Feb 2019. 5  Lymphogranuloma venereum (LGV) is a sexually transmitted systemic disease (STD) caused by a parasitic organism closely related to certain types of bacteria. It affects the lymph nodes and rectal area, as well as the genitals, in humans. Gale Encyclopedia of Medicine. (2008). https:// medical-dictionary.thefreedictionary.com/lymphogranuloma+venereum. Accessed 16 Feb 2019. 6  Pertussis, also known as whooping cough, is an acute infectious inflammation of the larynx, trachea, and bronchi caused by Bordetella pertussis, characterized by recurrent bouts of spasmodic coughing that continues until the breath is exhausted, then ending in a noisy inspiratory stridor (the “whoop”) caused by laryngeal spasm. Farlex Partner Medical Dictionary. (2012). https://medicaldictionary.thefreedictionary.com/pertussis. Accessed 16 Feb 2019. 7  Ibid at (a) (1) (A) (ii). 8  Ibid at (a) (1) (A) (iii) (I) and (II). 9  Ibid at (a) (1) (A) (iv). 2

4.2  The 3-Year or 10-Year Bar for Being Unlawfully Present in the United States

27

The applicant must present with both the physical or mental disorder and the associated harmful behavior in order to be deemed inadmissible. Having a physical or mental disorder in and of itself is not a ground for a declaration of inadmissibility. The same is true for harmful behavior—standing alone harmful behaviors by the applicant are not cause for a declaration of inadmissibility on health-related grounds. A physical disorder is defined as one currently found in the Manual of International Classification of Diseases, Injuries, and Causes of Death (World Health Organization). A mental disorder is defined as one currently found in the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association). An applicant who is found inadmissible under the health-related grounds can apply for a waiver from the USCIS which will allow the applicant to enter the United States despite the health-related concern. Unlike with many other types of waivers, this application does not require the foreign national to have a qualifying relative to file but can file on his or her own behalf. Waivers in this case, as in all matters under the USCIS jurisdiction, are discretionary. Waivers of inadmissibility are determined after consultation with the Secretary of Health and Human Services and the U.S.  Center for Disease Control. When waivers of inadmissibility are granted by USCIS for a foreign national with a physical or mental disorder which is associated with harmful behaviors, it is commonly with the proviso that the foreign national immediately seek examination by an approved U.S. health care provider and receive the appropriate care and treatment. The posting of a bond may be required, as well.

4.2  T  he 3-Year or 10-Year Bar for Being Unlawfully Present in the United States Inadmissibility can also be decided for an individual who is already in the country. As previously noted, there are more than 11 million undocumented foreign nationals living in the United States. Some of them obtained a visa before entering the country (i.e., visitor’s visa), were lawfully admitted to the country but then did not leave before the visa expired and remained in the country. Others illegally crossed the border, possibly through Canada or Mexico (giving rise to the recent “Build the wall!” outcry). According to the law, those who remain in the country illegally cannot apply for legal status from within the United States and must return to their country of origin to apply through proper U.S. procedures. The law imposes a three (3) or ten (10) year bar from returning to the United States as a penalty for remaining in the country illegally. Individuals who remain for more than 180 days but less than 1 year are barred from reentry to the United States for 3 years and those who remain for more than 1 year are barred for 10 years.

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Usually these individuals find themselves before a USCIS adjudicator because they have been taken into custody. These cases are referred to as “unlawful presence” matters and occur when the foreign national either enters the country without inspection, or overstays a designated period of admission (i.e., the individual enters under a 3 month visa and stays after its expiration). The specific language in the statutes sets forth that the foreign national will be “deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” Section 212(a)(9)(B) of the Immigration and Nationality Act sets forth that if the foreign national was “unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or…” “...has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.”

A waiver of inadmissibility can be granted by the sole discretion of the U.S. Attorney General “(i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.” In Chapters 6 and 7 we explore the “extreme hardship” and the “exceptional and extremely unusual hardship” cases and the role the forensic psychologist plays in supporting the petition of a foreign national to remain in this country.

4.3  Certain Criminal Convictions Conviction of a crime involving moral turpitude10; national security11; a controlled substance12; drug trafficking13; multiple criminal convictions, whether or not they involve moral turpitude14; prostitution15; human trafficking16; money laundering17; and other specified crimes will be deemed to make the alien inadmissible.

 Ibid at (a) 2 (A) (i) (I).  Ibid at (a) 2 (H) (3). 12  Ibid at (a) 2 (A) (i) (II). 13  Ibid at (a) 2 (C). 14  Ibid at (a) 2 (B). 15  Ibid at (a) 2 (D). 16  Ibid at (a) 2 (H). 17  Ibid at (a) 2 (I). 10 11

4.4  Crimes Involving Moral Turpitude (CIMT)

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4.4  Crimes Involving Moral Turpitude (CIMT)18 An exact definition of a crime involving moral turpitude (CIMT) does not exist. Despite this lack of definitiveness, the U.S. Supreme Court has held that rules and laws pertaining to CIMT are not unconstitutionally vague. This means that despite there being no clear definition of CIMT the law still does not impinge on an individual’s constitutionally protected rights. It has been left up to the individual courts in the various jurisdictions and, in cases involving immigration matters, the Immigration Judges and BIA, to determine the meaning of a CIMT. Congress, in passing the Immigration and Nationality Act, despite making CIMT a basis for inadmissibility, did not see fit to define the term “moral turpitude,” and instead left it up to the judicial process to fashion a definition. The BIA definition that guides decisions across jurisdictions in immigration proceedings is conduct which is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general”19 and that “shocks the public conscience.”20 This nebulous definition has created a continuing conflict amongst and between federal court jurisdictions as to its definition. There is no agreement amongst the various United States Courts of Appeals as to its definition. The U.S. Supreme Court has not provided judicial guidance as to its definition. Certainly, the impact upon the individual, depending on the jurisdiction in which a matter is commenced, is great. In one federal jurisdiction, a crime can constitute a CIMT, thus making the foreign national alien inadmissible (or a noncitizen deportable) and in another it would not have the same effect. Part of the difficulty involves the uniqueness of each State’s criminal laws. Since each State has the power to create its own criminal laws and rules, each has defined crimes within its jurisdiction in different ways leaving them open for various interpretations. Thus, a conviction for a crime in one State may be considered one of CIMT and not in another. Therefore, it is important to communicate with the attorney on the matter to determine the legal parameters of CIMT with regard to the meaning of the offense the foreign national or noncitizen had been convicted and its jurisdictional consequences. INA Section 212(a)(2) states that any “alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of: a crime involving moral turpitude (other than a purely political offense); or, an attempt or conspiracy to commit such a crime shall be deemed to be inadmissible.” The statute also provides that the Attorney General has the discretion to waive inadmissibility if it can be shown that: the activities for which the foreign national is inadmissible occurred more than 15 years before the date of the foreign national’s application for a visa, admission, or adjustment of status; the admission to the United States of such foreign national would not be contrary to the national welfare,  Jordan v. De George, 341 U.S. 223(1951).  In re Sejas, 24 I. & N. Dec. 236, 237 (BIA 2007). 20  Garcia-Maldonado, 491 F.3d at 288. 18 19

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safety, or security of the United States; and the foreign national has been rehabilitated; or, in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or a foreign national lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the foreign national’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such foreign national. This provides an avenue for the forensic psychologist to participate in the matter by conducting a psychosocial evaluation to determine the extent, if any, of the rehabilitation of the foreign national. This is covered more fully in Chapters 6, 7, and 11.

4.5  Multiple Criminal Convictions Whether or not the crimes involved those of moral turpitude, conviction of two or more crimes which resulted in sentences totaling five (5) years or more in prison will render the subject inadmissible.

Violation of Any Controlled Substance Law Any conduct relating to unlawful drugs, whether illegal by foreign or domestic laws, can be grounds for inadmissibility.

Drug Trafficking If there is reason know or suspect that an individual has been involved, either directly or by aiding, abetting, conspiring or colluding with others, in the trafficking of controlled substances, that person is inadmissible to the United States.

Prostitution Anyone who engages in or profits from prostitution or commercialized vice, or has done so within 10  years of applying for admission, is inadmissible to the United States.

4.6 Immigrant Membership in the Communist or Any Totalitarian Party

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Assertion of Immunity for a Serious Crime Anyone who has committed a serious crime in the United States, asserted and was granted immunity from criminal prosecution, and left the country is inadmissible to return unless they submit to the jurisdiction of the federal court overseeing the criminal case.

Violations of Religious Freedom If, while serving as a foreign government official, the individual was responsible for violations of religious freedom, that person will be deemed inadmissible.

Human Trafficking Committing, conspiring, aiding, abetting, or colluding to commit human trafficking, in or outside the United States renders the foreign national inadmissible.

Money Laundering Engaging or planning to engage in the laundering of financial instruments renders that individual inadmissible. In cases involving crimes committed by the subject, a psychological mitigation report (see Chapter 11) can help the judge or adjudicator to better understand the individual and the circumstances surrounding the commission of the crime, rehabilitation, and remorse. An effective mitigation report is an important piece of the individual’s case and can have a major impact on the final disposition of the matter.

4.6  I mmigrant Membership in the Communist or Any Totalitarian Party The law makes inadmissible any immigrant who is a member of a Communist or totalitarian organization (or any organizations suspected of being or affiliated with a Communist or totalitarian party) either in the United States or any foreign country. An exception is made for those who were forced to join a Communist or totalitarian organization against their will or did so “for purposes of obtaining employment,

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food rations, or other essentials of living and whether necessary for such purposes.”21 The statute also excludes anyone who participated with the Nazis in “persecution, genocide, or the commission of any act of torture or extrajudicial killing.” An immigrant can also be inadmissible if they are deemed to be a threat to national security. If it is suspected that the noncitizen seeking entrance into the United States may “engage in espionage or sabotage, to attempt to overthrow the US government, or to engage in any unlawful activity... has participated in any terrorist activities or has any association with terrorist organizations, governments or individuals... [or it is believed] that the person presents a threat to foreign policy or has membership in any totalitarian party that person may be inadmissible.”22

4.7  Immigration Fraud or Misrepresentation The INA 212(a)(6)(C)(i) makes inadmissible any person seeking to be admitted into the United States who has obtained any immigration benefit by fraud or willfully misrepresentation. The penalty for engaging in such conduct is a lifetime ban from entering the United States. The Board of Immigration Appeals has determined that “fraud” typically means that the individual seeking admission knowingly made a false representation of a material fact with the intent to deceive a consular or immigration officer who then believed the applicant and acted upon such belief (see Matter of G, 7 I. & N. Dec. 161 (BIA 1956)). A “willful misrepresentation” does not require an intent on the part of the foreign nations to deceive or that the officer believes or acted upon the false representation. (See Matter of S and B-C, 9 I. & N. Dec. 436, 448–449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I. & N. Dec. 288 (BIA 1975)).23 Examples of such fraudulent or misrepresentation behavior can include: marrying a U.S. citizen or permanent resident; enrolling in an academic course or courses (if not permitted under the admission, i.e., 90-day visitor’s visa); or seeking or taking on employment. There is a presumption that a fraud or misrepresentation occurred if any of these happened within 90 days of the aliens stay in the country.24

 8 USC 1182: Inadmissible aliens.  ibid. 23  Foreign Affairs Manual and Handbook. 302.9-4(B)(2) (U) Different Standards for Finding of Fraud or Willfully Misrepresenting a Material Fact. 24  9 FAM 302.9-4(B)(2) (U) Different Standards for Finding of Fraud or Willfully Misrepresenting a Material Fact. 21 22

4.8 Aliens Previously Removed and Unlawfully Present…

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4.8  A  liens Previously Removed and Unlawfully Present After Previous Immigration Violations A foreign national who is unlawfully present in the United States after having been previously removed is deemed to have committed a violation of the immigration law and are therefore considered inadmissible. The foreign national in this circumstance is barred from reentry and must remain outside of the United States for the statutory period of time (3 or 10 years) before being permitted to reapply for admission. A waiver of the inadmissibility may be applied for under the “extreme hardship” application. This is discussed more fully in Chapter 6.

Chapter 5

Qualifying as an Expert Witness

In all legal proceedings, there are various types of evidence that can be properly admitted to support the position of a party. The admission of evidence is vital to any case since a court decision can only be based on evidence which exists within the four corners of the matter being heard. Facts not in evidence, even if known to the entire world, cannot be used as a basis for a judicial decision. Therefore, understanding the basic rules for the admission of evidence is crucial. It should be noted that each jurisdiction (Federal and each of the States) has its own unique set of rules of evidence as do the various agencies which conduct administrative hearings, such as the immigration court. It is advisable to check with the attorney handling the matter about the applicable evidentiary rules in each case. In addition to understanding the criteria for submitting evidence in a court, the forensic psychologist must be aware that he or she will also be scrutinized to determine if their assessments, report, and testimony meet evidentiary muster. In this chapter, we review the rules of evidence relevant to the forensic psychologist.

5.1  Types of Evidence Real Evidence Real evidence is “the thing itself. Not a description but the actual item”.1 Sometimes this type of evidence may be referred to as physical evidence. This is a fairly simple concept—any item or thing that is the actual material involved in the case is real evidence. For example, in a murder trial the offer into evidence of the actual gun used to kill the victim would be one of real evidence.

 Black’s Law Dictionary. (1983) Fifth Edition. West Publishing Co. New York, NY.

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Demonstrative Evidence “The purpose of demonstrative evidence is to illustrate something said by a witness to help understand the issue or issues involved”.2 So, for example, if a party to an action wanted to demonstrate internal injuries suffered to the body, medically accurate diagrams or models could be used (which is much preferred to the alternative— slicing open the individual to exhibit the internal injuries to a judge or jury!). The attorney offering such evidence would have to first “lay a foundation” for the proffered demonstrative evidence to show that it is demonstrating exactly what is being claimed it demonstrates. That might mean, in this example, a physician testifying to the accuracy of the model. When a well-established piece of demonstrative evidence (i.e., a model made by a manufacturer known to be anatomically accurate) is used, the court may allow its use without the need to establish its accuracy by employing what is known as “judicial notice”—something being introduced that is so well known it really isn’t in dispute.3

Documentary Evidence Documentary evidence is “information recorded in any medium on which information can be stored”.4 Again, a foundation must be laid to demonstrate the accuracy and trustworthiness of the evidence. For example, photographs showing the injuries suffered from domestic abuse could be used in support of the victim’s allegations.

Testimonial Evidence Testimonial evidence is any statement made by an individual placed under oath in a court proceeding. The individual providing the testimony is known as a witness. There are three types of witnesses: fact witnesses, eyewitnesses, and expert witnesses.

2  Marks, S. (2004). The Admissibility And Use Of Demonstrative Aids. https://www.americanbar. org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/demonstativeaides.html. Accessed December 9, 2017. 3  Federal Rules of Evidence. Rule 201. 4  Querijero, M. (2013) Documentary Evidence. In A practical guide to evidence in Connecticut. Eds.: Mark S. Baldwin, Stephen R. Klaffky, Dylan P. Kletter.

5.1  Types of Evidence

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The Fact Witness The fact witness knows the facts of a particular part in a case but is not witness to the main event of a case. Further, the fact witness can only testify to those things of which they have personal knowledge and cannot provide opinions about a matter. An example would be in a domestic abuse case a fact witness could testify that the female victim was his or her house cleaner and she showed up to work one day with a black eye but that witness could not testify to the treatment the victim may have received at her own home. Fact witnesses are not permitted to offer an opinion about the facts to which they testify. The Eyewitness The eyewitness can only testify to exactly what they observed using at least one of their senses. They are also not permitted to provide an opinion about what they saw/ heard/smelled, etc.—only a recitation of the actual event they witnessed. The Expert Witness The expert witness differs greatly from the other two types of witnesses. The key difference between the expert witness and any other witness (lay witness) who may offer evidence in a case is that the expert is permitted to “testify in the form of an opinion.” All others may only testify to facts of which they are personally aware. So, for instance, if someone were to testify that they saw the subject “fall to the ground writhing,” that would be acceptable testimony. However, if that same lay witness were to testify that he saw the subject “fall to the ground because she was having a heart attack,” that testimony would be excluded as it is not a fact, it is an opinion of which the lay witness does not have personal knowledge, skill, or training. Further, if the lay witness were to testify at trial that John Doe told him that Jane Doe robbed the bank, that testimony would be excluded as hearsay5 because it was a statement made by John Doe outside of the courtroom about a fact that the lay witness was not personally aware (the witness did not actually see Jane Doe rob the bank, the witness only heard about it from someone else). However, the forensic psychologist is permitted to submit an opinion which is based upon facts that he or she is not personally aware of and that are hearsay.6

 Federal Rules of Evidence. ARTICLE VIII. HEARSAY. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay. (c) Hearsay. “Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. 6  Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir.2006). 5

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While there is evidence that psychologists have assisted at trial as expert witnesses for more than 100 years, it wasn’t until the Appellate Court decision in the criminal matter of Jenkins v United States7 that psychologists were officially ­recognized as capable of providing expert testimony. However, this does not mean that simply having a doctorate in psychology will automatically make a psychologist qualified to appear as an expert in a legal matter. There is a two-step process that every professional must be able to meet in order to make their findings and testimony available in a court trial. Expert witnesses are used at trial to help the Court and jurors understand complex matters that are not within common knowledge. To do so, first, the psychologist must prove to the Court that he or she is competent to testify on the specific matter  Jenkins v. United States. 307 F.2d 637—“The kinds of witnesses whose opinions courts have received, even though they lacked medical training and would not be permitted by law to treat the conditions they described, are legion. The principle to be distilled from the cases is plain: if experience or training enables a proffered expert witness to form an opinion which would aid the jury, in the absence of some countervailing consideration, his testimony will be received. Suggesting the diagnostic category into which an accused’s condition fits, and relating it to his past behavior require skill far in excess of that [**19] possessed by laymen. Lest the jury be misled into relying on opinions which are not based upon relevant learning and experience, we must examine the reality behind the title “psychologist.” Many psychologists may not qualify to testify concerning mental disease or defect. Their training and experience may not provide an adequate basis for their testimony. Some psychologists, for example, teach and engage in theoretical research in fields unrelated to the diagnosis and treatment of mental disease. Others are employed in personnel administration, still others advise industry on problems of employee morale. See Western Personnel Institute, Opportunities for Psychologists, Psychiatrists, Psychiatric Social Workers 8–10 (1958); Daniel and Louttit, Professional Problems in Psychology 25! 0–52, 297 (1953). Such experience does not ordinarily provide the skill essential to offer expert testimony concerning mental disorders. Cf. Albee, Mental Health Manpower Trends 116 (1959). Some psychologists, moreover, have had no post-graduate instruction. Id. at 121–22. On the other hand, the Ph.D. in Clinical Psychology involves some—and often much—training and experience in the diagnosis [**20] and treatment of mental disorders. Typically, candidates are trained, inter alia, in general psychology, theory of personality and psychodynamics, psychopathology, diagnostic methods, therapeutic techniques, selected aspects of physiology and anatomy, and clinical methods. A one-year internship in a mental hospital is required for this degree. After graduation, many clinical psychologists administer and interpret diagnostic tests which elicit the patient’s intellectual level, defenses, personality structure, attitudes, feelings, thought, and perceptual processes. See 1 Rapaport, [*645] Diagnostic Testing 7–9 (1945). In many institutions and clinics their reports, which regularly include opinions concerning the presence or absence of mental disease or defect, are important aids to psychiatrists who customarily have the final responsibility for diagnosis. Some psychologists, moreover, regularly administer psychotherapy and related non-organic therapies in the treatment of certain types of mental disorders. The determination of a psychologist’s competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge. It does not depend upon his claim to the title “psychologist.” And that determination, after hearing, must be left in each case to the traditional discretion of the trial court subject to appellate review. Although there are no statutory criteria for licensing psychologists in the District of Columbia to assist trial courts, the American Psychological Association’s list of approved graduate training programs provides some guidance. When completion of such training is followed by actual experience in the treatment and diagnosis of disease in association with psychiatrists or neurologists, the opinion of the psychologist may properly be received in evidence.”

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5.2  Evidentiary Rules Pertaining to the Expert Witness

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before the Court based upon their “knowledge, skill, experience, training, or education”8 in that area. Having a doctorate in psychology may not be sufficient to qualify the psychologist as an expert in a particular case. At a minimum, a psychologist would need to show the Court that he or she is well-versed in the literature in the area at issue, understands the scientific methodology and procedures employed in which to make an opinion, is familiar with the assessment devices used in the particular area and has experience in that particular area. For example, in a child custody case a psychologist whose work is mainly with schizophrenic patients, though they may be an expert in schizophrenia, may not be qualified to testify on the nature of parent–child relationships, abuse, parenting styles, and the like. Second, the expert must be able to show that any assessments used, and upon which their opinions are based, are scientifically valid. The Frye Evidentiary Rule, Daubert Standard, and the Federal Rules of Evidence set forth the guidelines for making this determination.

5.2  Evidentiary Rules Pertaining to the Expert Witness The Frye Evidentiary Rule In 1921, James Frye confessed to the murder of well-known Washington D.C. physician R.W. Brown.9 At his trial, Frye alleged that the confession he made was false and given as part of a plot devised so that he and the arresting detective could share in the reward offered for the capture of Dr. Brown’s murderer.10 In support of his claim, Frye’s attorneys offered into evidence the assessment and testimony of Dr. William Marston, the creator of the “systolic blood pressure deception test” which, according to Marston, indicated that Frye was telling the truth when he stated that his confession to the murder was a false one.11 The theory behind Marston’s device and assessment was that “truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the

8  Federal Rules of Evidence. Rule 702. Testimony by Expert Witnesses. U.S. Government Printing Office. 9  Weiss, K.J., Watson, C., and Xuan, Y (2014). Frye’s Backstory: A Tale of Murder, a Retracted Confession, and Scientific Hubris. J Am Acad Psychiatry Law 42:226–33. 10  Weiss, K.J., Watson, C., and Xuan, Y (2014), ibid. 11  Ibid.

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subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.”12 The lower court and the Federal District Court of Appeals refused to allow Marston to testify at trial or to admit the results of his lie detection devise.13 The Appellate Court based its decision to exclude Marston’s lie detector device evidence on the premise that the science proffered was not “sufficiently established to have gained general acceptance in the particular field in which it belongs”14 [emphasis added]. Thus, the Frye Evidentiary Rule for qualifying expert testimony was established.

The Daubert Evidentiary Rule The Frye Rule remained the dominant evidentiary standard until the 1993 U.S. Supreme Court matter of Daubert v Merrell Dow Chemical15 which overruled Frye in the federal courts (some States still apply the Frye standard, however). In that case, the plaintiffs were suing the pharmaceutical manufacturer of Bendectin—a prescription medication marketed to pregnant women to help prevent morning sickness. Many of the women who took this medication gave birth to children with serious physical defects. At trial, the plaintiffs attempted to admit evidence from scientists who had conducted animal experiments with the medication, but whose studies had not been published, that indicated use of the drug by pregnant women could cause serious birth defects. The lower Court, citing the Frye “general acceptance” criteria, refused to admit the plaintiffs’ evidence. The Appellate Court confirmed that decision but on appeal to the U.S. Supreme Court it was held that Federal Rules of Evidence, Section 702, superseded the Frye Rule and must be followed in federal cases. The Daubert criteria spelled out that a Court, in determining the admissibility of scientific evidence, must consider the following: 1. whether the theory or technique in question can be and has been tested using some accepted scientific methodology 2. whether it has been subjected to peer review and publication 3. whether its known or potential error rate justifies its use 4. whether the existence and maintenance of standards controlling its operation can be shown 5. whether it has attracted widespread acceptance within a relevant scientific community16

 Frye v U.S., 293 F. 1013 (D.C. Cir. 1923).  Frye v U.S., ibid. 14  ibid. 15  Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). 16  Daubert v. Merrell Dow Pharmaceuticals, ibid. 12 13

5.3  The Effect of Evidentiary Rules on Expert Testimony

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It should be noted that it is not necessary for a Court to find that all five of these criteria have been met in order to admit the scientific evidence presented.17

Federal Rule of Evidence 702. Testimony by Expert Witnesses “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”18 As the Rule clearly states, a forensic psychologist (or any professional) acting as an expert witness in a court proceeding must be ready to meet this two-prong test: demonstrate that he or she has the requisite and sufficient professional background to testify and that the measures used upon which the opinion is based are scientifically supported.

5.3  The Effect of Evidentiary Rules on Expert Testimony Immigration cases are different than a proceeding in a federal court. To begin with, the Federal Rules of Evidence do not apply in immigration cases19 though they may be used for guidance in determining the admissibility of evidence. In terms of qualifying as an expert witness or admitting evidence at a hearing, the Immigration Judge has “broad discretion” in the manner in which he or she conducts the hearing so long as it does not violate the foreign national’s due process rights under the U.S. Constitution. The “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.”20 The Fifth Amendment extends due process rights to aliens entitling them to a full and fair hearing; however, the IJ retains “broad discretion in conducting that hearing.”21 A due process  Meridia Prods. Liab. Litig. v. Abbot Labs, 447 F.3d 861 (6th Cir. 2006) (quoting Kumho Tire Company, LTD., v. Carmichael, 526 U.S. 137, 119 S.Ct. 116 7) (1999) at 152). 18  Federal Rules of Evidence. Rule 702. Testimony by Expert Witnesses. U.S. Government Printing Office. 19  This is true of all agency proceedings, not only the immigration court. 20  Sanchez v. Holder Jr., 08-72430 (9th Cir. 2012). 21  Lin v. Holder, 565 F.3d 971, 979 (6thCir. 2009) (quotingCastellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003)). 17

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violation occurs only when “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”22 In order to prevail on a due process challenge, a petitioner must therefore show that “the alleged violation affected the outcome of the proceeding.” Id. (citing Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005)); see also Warner v. Ashcroft, 381 F.3d 534, 539 (6th Cir. 2004) (“[P]roof of prejudice is necessary to establish a due process violation in an immigration hearing.”).23 While a Federal Court judge would reject hearsay evidence out-of-hand, the Immigration Judge may not.24 “The Immigration Judge may receive in evidence any oral or written statement that is material and relevant to any issue in the case previously made by the respondent or any other person during an investigation, examination, hearing, or trial.”25 While the Immigration Judge can accept hearsay evidence that Judge can give such evidence less weight—in other words, not give it full (or any) credibility. So, for instance, a forensic psychologist might interview an ­individual other than the respondent and include statements by that individual in support of the findings even though that person might not testify in court. The judge, in assessing the forensic psychologist’s opinion, is not required to adopt as true all of the facts on which the forensic psychologist has based his or her opinion.26

5.4  Experience and the Curriculum Vitae So, given the legal requirements to qualify as an expert witness how do you present yourself if you have never handled an immigration case as a forensic psychologist? This is what makes immigration cases the perfect area for a psychologist to enter the field of forensic psychology. Because of the nature of the proceeding and the broad discretion given to the IJ together with the immigration court’s mandate to admit evidence based solely on “whether the evidence is probative and its admission is fundamentally fair”27 it is easier to qualify as an expert witness. A curriculum vitae (CV) of the expert witness will accompany the submission of the forensic psychology report (see Chapter 10). The CV will be the first thing that the parties and the IJ will see. Most of the time the parties stipulate (agree) to allow the expert to testify however, even if agreed upon by the parties, if there are issues apparent in the CV that may render the psychologist unqualified, the IJ has the right

 Hassanv. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005) (quoting Ladha v. INS, 215 F.3d 889, 904 (9th Cir.2000)). 23  Abaz Jashari v. Jefferson B. Sessions, III, No. 17-3457 (6th Cir. 2018). 24  Dia v. Ashcroft, 353 F.3d 228, 254; Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006). 25  Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010). 26  Ibid. 27  Sanchez v. Holder Jr, above. 22

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to conduct a “voir dire” (questioning) of the expert to clarify any concerns. Of course, the government attorney may request a voir dire as well in an attempt to prevent the expert testimony from getting into the record. Preparing for this possibility is as important as doing the evaluation, analysis, and writing of the report. Consider the difficulties a psychologist might find oneself if, after all of this time, effort, and expense, the work product was unusable! As this implies, “jumping into” the forensic arena, even in an immigration case, should not be attempted by a psychologist until having fulfilled at least a minimal amount of professional preparation. The forensic psychologists’ CV should include, but not limited to: –– –– –– –– ––

any publications that are relevant to immigration matters forensic psychology courses taken* post-graduate/continuing education forensic psychology courses taken* forensic psychology courses taken relevant to immigration matters* membership in professional associations relevant to forensic psychology and immigration matters* –– previous expert testimony given or reports submitted –– any lectures presented on the subject * It is highly recommended that prior to starting to conduct forensic Immigration evaluations that you undertake to join at least one professional association focused in this area and attend at least one relevant forensic/immigration evaluation course. In the chapter on testifying in court, we will focus on the questions one needs to be prepared to answer in the event of a voir dire of professional qualifications.

Chapter 6

The “Extreme Hardship” Waivers Mateo (not his real name), a 24-year-old native of Nicaragua, had lived in the United States since he was thirteen years old. His father was forced to flee their country after he was imprisoned and forced to leave his position as a captain of the fire department by the Sandinistas. Shortly thereafter, Mateo arrived in the United States followed by his mother and younger brother. He registered for school, learned to speak, read and write English and graduated from high school with high grades. He held jobs and was an active member of his community and church, eventually becoming a deacon at his church where he participated in the youth ministry program. He planned to continue his studies at the college level and hoped to eventually become a police officer. Mateo fully assimilated into American life and culture and became an avid fan and player of softball and baseball in various leagues. Mateo’s father, while waiting for his asylum case to be heard, had built up a business in the United States as an independent hauler. Unfortunately, the application for asylum was never adjudicated so he returned to Nicaragua ten years after his arrival in the United States to interview for an immigrant visa to the United States. Unfortunately, Mateo’s father passed away while he awaited his interview. After his father’s death, Mateo assumed responsibility for the family trucking business.1

It is the policy of the United States, enshrined in the U.S. Constitution, to protect those within its borders from being deprived by the government of “life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction

1  In re O-J-O- (1996). U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals. https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3280. pdf

© Springer Nature Switzerland AG 2020 R. S. Meyers, Conducting Psychological Assessments for U.S. Immigration Cases, https://doi.org/10.1007/978-3-030-49868-9_6

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the equal protection of the laws.”2 As such, an undocumented immigrant who has a familial connection to a citizen of this country can petition the U.S. Citizenship and Immigration Service and provide evidence that a qualifying relative (a spouse or parent who is a U.S. citizen or a lawful permanent resident) would experience the loss of “life, liberty, or property” at the hands of the government if their undocumented foreign national were to be removed from the country. Congress, in shaping the federal immigration laws in accordance with Constitutional demands, ­established exceptions whereby removal would be waived by a showing from a U.S. citizen or legal permanent resident that they would suffer an extreme hardship if the immigrant were refused admission to or deported from the United States.3 These are known as 601 and 601A Extreme Hardship Waivers. There are three types of “extreme hardship” waivers: –– Unlawful presence. A foreign national who is in this country in violation of the immigration law and is in danger of removal may apply for this waiver. The qualifying relatives must be a spouse or parent who is a U.S. citizen or legal permanent resident.4 –– Inadmissibility based on crimes involving moral turpitude, multiple criminal convictions, and other crimes. The qualifying relatives for this waiver are the

 U.S. Constitution. Article 14, Section 1.  “Provisional Unlawful Presence Waivers Eligibility Requirements – To be eligible for a provisional unlawful presence waiver, you must fulfill ALL of the following conditions: – Be physically present in the United States to file your application and provide biometrics. – Be 17 years of age or older. – Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with Department of State (DOS) because you: –  Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee; – Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee); or Are the: – spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS, or—the spouse or child of a DV Program selectee (that is, you are a DV Program derivative) – Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent. – Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was: – More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i) (I)); or – 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)). – Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.” 4  INA 212(a)(9)(B)(v). 2 3

6.1  Evidentiary Standards

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foreign national’s spouse, parent, or child who is a U.S. citizen or legal permanent resident.5 –– Inadmissibility based upon certain types of immigration fraud or willful misrepresentations of material fact. The qualifying relatives must be a spouse or parent who is a U.S. citizen or legal permanent resident.6 An exception to the qualified relative requirement exists for those foreign nationals applying for a waiver under the Violence Against Women Act (VAWA) (­ discussed more fully in Chapter 8). In those matters, the immigration court must consider the extreme hardship of the foreign national and/or the spouse or parent who is a U.S. citizen or legal permanent resident. Congress, when creating these hardship waivers, took into account that the foreign national had seriously violated the laws of this country but also took into consideration moral and humanitarian concerns including that of family unity. The Immigration Judge, when adjudicating an extreme hardship case, must first determine that the foreign national’s application meets all of the legal requirements for a waiver: Is there a qualifying relative? If yes, is there a showing of extreme hardship? If yes, is the showing sufficient to warrant an exercise of discretion by the Immigration Judge to grant the application? To what degree does the foreign national applicant need to prove each of the above questions? Our legal system has devised a number of standards, or thresholds, that a party must meet in order to prove a case. These thresholds, as we will discuss below, are designed to protect each of the parties involved in the litigation and to preserve our system of justice based upon the severity of the matter.

6.1  Evidentiary Standards Beyond a Reasonable Doubt Standard The highest evidentiary threshold to meet in our judicial system, applied in criminal matters, is the “beyond a reasonable doubt” standard. The Government bears the burden of proving its case to this high standard. Though not explicitly established in the U.S. Constitution, this standard was constructed early in our nation’s history as a protection of, and an appreciation for, the sanctity of life and liberty. When life and liberty are at stake, it is recognized that the “beyond a reasonable doubt” standard is “basic in our law and rightly one of the boasts of a free society – is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process’.”7 The U.S. Supreme Court interpreted this standard to mean, “[a] reason INA 212(h)(1)(B).  INA 212(i)(1). 7  In re Winship, 397 U.S. 358 (1970). In re Winship, supra quoting, Leland v. Oregon, at 343 U. S. 802-803 (dissenting opinion). 5 6

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able doubt is an actual and substantial doubt . . . as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture… a doubt that would cause a reasonable person to hesitate to act.”8 This author describes the “guilt beyond a reasonable doubt” standard as the ninety-eight percent (98%) certainty rule, meaning that the allowable error for depriving an individual of his or her right to liberty must be very slim.9 Jurors must be 98% confident in their determination that a defendant is guilty. This high degree of certainty reflects not only the States’ interests in protecting society from those who commit criminal wrongs but also in protecting the civil liberties of the individual.

Preponderance of Evidence Standard Civil actions, unlike criminal actions, do not have the same “life and liberty” consequences and thus carry a lesser standard of proof referred to as the “preponderance of evidence.” A party must prove that it is “more probable than not that the facts existed”10 in order to meet this standard. This author refers to the preponderance of evidence standard as the fifty-one percent (51%) rule—the party that tips the scale in his or her favor, in other words, makes the stronger showing, will receive a favorable outcome in the case.11

Clear and Convincing Standard Actions that are more serious than ordinary civil actions but do not pose the danger of deprivation to life or liberty (as do in criminal matters) are governed by the “clear and convincing evidence” standard. This author refers to this standard as the eighty percent (80%) rule.12 In Colorado v New Mexico, the Supreme Court determined that to meet the burden of “clear and convincing evidence” a party must present evidence that would persuade the “ultimate factfinder an abiding conviction that the truth of its factual contentions are “highly probable.””13 Cases that would require this higher level of scrutiny include issues such as claims of fraud, removal from life support, and removal of parental rights.  Victor v. Nebraska, 511 U.S. 1 (1994).  Meyers, RS (2019, in revisions). Voluntary and Involuntary Psychiatric Hospitalization. In, Litigators’ Handbook for Forensic Medicine, Psychiatry, and Psychology. Ed. Lorandos, D. Publisher: Thomson Reuters. 10  Mottla, New York Evidence § 25, at 49 [2d ed. 1966]). 11  Meyers, ibid. 12  Ibid. 13  See Colorado v. New Mexico, 467 U.S. 310, 316 (1984). 8 9

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6.2  Evidentiary Standard in Immigration Cases Immigration matters are considered civil in nature and not criminal, thus the preponderance of evidence standard is applied to each case and each element of the case. The foreign national bears the burden of proving to the Immigration Judge, by a showing that it is more likely than not, that the foreign national satisfies the legal requirements necessary for a waiver, including that a qualified relative will suffer an extreme hardship. However, a finding of extreme hardship permits, but does not require, a favorable exercise of discretion by the Immigration Judge.14 Psychologists must understand, and must explain to clients when undertaking such work, that a forensic psychologist’s report, even an excellent one, is not a guarantee that the foreign national’s case will be successful. According to information released by USCIS, the approval rate for 601 waiver applications was close to 80% and about 70% for 601A waivers. This means that a significant number of waiver applications are denied.15 The forensic psychologist plays an important role in not only identifying the extreme hardship(s) that are or would be experienced by the qualified relative(s) and foreign national but may also be needed to help establish the qualifying relative.

6.3  Determining Qualifying Relatives The first issue that must be determined is whether there is a “qualifying relative,” as proscribed by statute, who will suffer an extreme hardship if the foreign national is removed from the country. In many cases, this can be easily established by presenting the immigration court with a marriage certificate, birth records, proof of citizenship or legal permanent residence, or other such documented proof of the relationship between the foreign national and the relative. This evidence would most likely be presented by the attorney representing the foreign national. But in some cases the evidence is not so easily available or clear cut. It is important that the forensic psychologist be aware of the proper individuals to be assessed and reported on for the evaluation. Wasting time and resources on individuals who are not qualified relatives or conducting an assessment when there are no qualified relatives would be problematic and cause much difficulty for the forensic psychologist. While there are times when assessing non-qualified relatives/ individuals would be appropriate to include in an investigation, assessment, and

 See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 566 (BIA 1999), aff’d, CervantesGonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). See Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). See Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968). 15  https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2015/05/04/ from-aila-uscis-provides-i-601-and-i-601a-statistics-for-fy2010-fy2015.aspx 14

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evaluation, it is only after the extreme hardship of the qualified relative has been established. The Courts have also ruled that “de facto” relatives do not qualify. Sometimes relatives take in children to care for them when their biological parents cannot. These relatives may consider and refer to the child as “their child.” However, such children would not be a qualifying relative under the statute. In INS v Hector, deportation proceedings had been instituted against the petitioner, Virginia Hector, based on her remaining illegally in the United States after her authorization to stay had expired. She applied for a waiver based upon the extreme hardship that would be suffered by her children. Her “children” were two nieces from the West Indies who had come to live with her. Hector maintained a close parent–child relationship with them. The U.S. Supreme Court held, “[e]ven if Hector’s relationship with her nieces closely resembles a parent-child relationship, we are constrained to hold that Congress, through the plain language of the statute, precluded this functional approach to defining the term “child.””16 The immigration law recognizes different definitions for who qualifies as a “child.” Generally, a child means an unmarried person under the age of 21 who is: –– born to a married couple. –– born to a mother who used an egg donor to get pregnant but was recognized as the child’s legal mother by the relevant state or jurisdiction at the time she gave birth. –– a stepchild, provided that the child was under 18 years old when their parent married their step-parent. –– an adopted child. Generally, the child must be adopted before age 16, has lived with the adoptive parent for 2  years, and has been in the legal custody of the adopting parent for 2 years. But what about a child born to unmarried parents (sometimes referred to as “illegitimate child”)? For the most part, the mother’s identity will be on the birth certificate and can be easily proven. But what about the father? The father, if not on the birth certificate, must show that the child had been legitimated while in the father’s legal custody or the father must show that a bona fide parent–child relationship existed before the child turned 21. How do you show a bona fide parent–child relationship? The father must demonstrate that he has an active concern for the child’s support, instruction, and general welfare. While financial support of the father can be proven by documentation, emotional support and ties can be evaluated and reported on by the forensic psychologist. Elements to look for in evaluating the parent–child relationship can include: the living arrangements of father and child; whether the father openly holds the child out as being his own; the father’s involvement in the child’s education, health care, extracurricular activities, and family life; financial support; and, ­genuine concern for and involvement in the child’s general welfare. The forensic psycholo-

16

 INS v. Hector, 479 U.S. 85 (1986).

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gist might have to conduct a bit of sleuthing to help establish for the Court the bona fide parent–child relationship by reviewing records (i.e., cards, letters, emails, texts, medical records, photographs), interviewing witnesses (i.e., teachers, coaches, neighbors), and observing the interactions between father and child. All of this would become part of the psychological evaluation, the report submitted, and maybe even testified to in court.

6.4  Defining Extreme Hardship Very unlike the usual clinical assessment you might conduct in your role as a clinical psychologist, the forensic psychologist’s report in an extreme hardship matter is not about the actual subject of the litigation (the foreign national/immigrant) but about the qualified family member or members supporting the application. The report should include the hardships to the immigrant and the effects they will have on the immigrant but the main focus will be on the U.S. citizen or legal permanent resident. In order to accomplish this, two distinct issues need to be thoroughly addressed: first, the extreme hardship they will experience if the immigrant is forced to leave the country; and second, the extreme hardship the U.S. citizen or permanent resident will suffer if they have to move to the immigrant’s country of origin. Of course, having to be separated from one’s family, in and of itself, would be a hardship but while the statute does not spell out the definition of “extreme hardship” it does proscribe that to “establish extreme hardship, an applicant must demonstrate that deportation would result in a degree of hardship beyond that typically associated with deportation.”17 This, of course, begs the question, what does one need to prove in order to establish “extreme hardship” for purposes of satisfying the statute? The answer is: How long is a rope? That was not very helpful, huh? Well, this is not an easy area—which is why the use of a forensic psychologist’s assessment and report plays such a critical role in these cases. Without a set criteria or standard upon which to measure, what would constitute an “extreme hardship?” Different people can have a very different interpretation or understanding of an “extreme hardship” which can lead to a wide variation of decisions based upon an individual judge’s personal opinion, the leanings of an Appellate Court, or the political beliefs or needs of the U.S. Attorney General. The U.S. Supreme Court weighed in on this issue in its 1981 decision in the case of INS v. Jong Ha Wang. That matter involved the Korean parents of U.S. born (and therefore, U.S. citizen) children. The parents were petitioning to suspend the order of deportation against them on the grounds of “extreme hardship” to their children. Their claims were based on their assertion that the school-aged children did not speak Korean and would therefore receive an inadequate education, the family would lose its business (a dry cleaner) and they would be deprived of the assets the

17

 8 CFR § 1240.58 Extreme hardship.

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parents had accumulated while in the United States. While there were multiple grounds for the denial of this application, the Court, in discussing the issue of “extreme hardship” stated, “[t]hese words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Here, the Board considered the facts alleged and found that neither respondents nor their children would suffer extreme hardship. The Board considered it well settled that a mere showing of economic detriment was insufficient to satisfy the requirements of [the law].”18 The immigration court and BIA have already established a list of factors that are considered “common consequences” which, by themselves, will not constitute an extreme hardship. These factors include: family separation; economic detriment; difficulties of readjusting to life in the new country; the quality and availability of educational opportunities abroad; inferior quality of medical services and facilities; and the ability to pursue a chosen employment abroad. From this list it seems that it would be almost impossible to prove, even by a preponderance of the evidence, that removal or relocation would be an extreme hardship. Fortunately, the immigration court and BIA are required to “consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad.”19 Additionally, the Immigration Judge and BIA must look to the individual circumstances of each particular case—in other words, a ruling of no extreme hardship cannot be based upon the fact that in another case those circumstances weren’t an extreme hardship. For example, in the INS v. Jong Ha Wang case above, it was ruled that the Korean family would not suffer hardship even though the qualified relatives did not speak the language, have a connection to the country and the family would be economically affected. That ruling does not preclude an Immigration Judge from finding that similar facts in another case does not constitute extreme hardship. The combination of the USCIS’s directive to look at the factors on a case-by-case basis and to look at the factors in a given case cumulatively means that even if the individual “common consequences” do not meet the “extreme hardship” threshold, the combination of common consequences may give rise to a finding of extreme hardship. Not only must the immigration court aggregate “common consequences” in its consideration but it must also aggregate hardships amongst and between the qualifying relatives. This does not mean that by presenting multiple common consequences the petitioner/immigrant will be successful. An individual qualifying relative may not meet the threshold of suffering an extreme hardship but when combined with the factors experienced or can potentially be experienced by other qualifying relatives this threshold may be met. It is at this juncture where the skill and

 INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981) (per curiam).  USCIS Policy Manual (2019). Volume 9—Waivers. Part B—Extreme Hardship. Chapter 5— Extreme Hardship Considerations and Factors.

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6.5  Qualifying Relative’s Ties to Family and Community

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expertise of the forensic psychologist come into play and can be effective in persuading the Immigration Judge that an extreme hardship exists. Factors that the Immigration Judge must consider, and that the forensic psychologist should assess and evaluate, include the following:

6.5  Qualifying Relative’s Ties to Family and Community Once the qualifying relative(s) has(ve) been established, a through exploration of the nature of the relationship with the foreign national should be conducted. That investigation is conducted in the same manner in which the bona fide parent–child relationship evaluation was described above; however, the focus of the interpretation is somewhat different. In this section, the forensic psychologist wants to examine facts about the relationship that would cause or aggravate the hardship to the qualifying relative if the foreign national were to be removed from the country. In addition, the forensic psychologist must assess what the potential hardship would be if the qualified relative left the country with the foreign national. What are the qualifying relative’s ties to family members living in the United States, including age, status, and length of residence in the United States? What are the qualifying relative’s ties to the community? Did the qualifying relative serve in the U.S. military? Compare the answer to those questions to what the qualifying relative’s ties, including family ties, are to the country of relocation, if any. Does the foreign national have responsibilities for the care of any qualifying family members in the United States, particularly children, elderly adults, or disabled adults? What would be the potential impact on the cognitive, social, or emotional well-being of the qualifying relative if they lost the care of the foreign national? Or, if the qualifying relative is not the person being cared for by the foreign national, but the foreign national is caring for another member of the family, would those responsibilities then fall upon the qualified relative should the foreign national be removed? What would be the potential impact on the cognitive, social, or emotional well-being of the qualifying relative who is left to replace the foreign national as caregiver for someone else? What community ties does the qualifying relative have in the United States? Compare that to ties in the foreign national’s country of relocation. How integrated is the qualifying relative into U.S. culture? Does the qualifying relative speak only English? More than one language? The language of the foreign national’s country of relocation? How difficult might it be for the qualifying relative to learn the language in the foreign nation’s country of relocation? What is the level of the qualifying relative’s acculturation? What are the qualifying relative’s skill levels? How difficult might it be for the qualifying relative to integrate into the foreign national’s country of relocation? Understand and adopt the social norms and customs including gender roles and ethical or moral codes?

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6.6  Economic Impact It would not be difficult to imagine the economic disparity between living and working in the United States verses living and working in many foreign countries. In most countries, the employment and financial opportunities would not be the same. It may be that the economic and employment situation in the foreign national’s country is poor, thus leaving little chance for gainful employment. Or maybe the age and/or skill level of the foreign national limits or precludes him/her from obtaining employment in the country of origin. This could result in a significant decline in the standard of living of the qualified relative(s). If the foreign national is the sole or primary earner for the family, his/her removal could create a hardship on the qualified relative(s) and family. If the foreign national needs to send funds back to the United States to support the qualified relative(s), there can be a drastic reduction in the amount of funds available for the qualified relative(s) not only for basic necessities (shelter, food, etc.) but for educational opportunities and social positioning. This could leave the qualified relative(s) and family destitute and necessitate dependence on public funds. If the qualified relative(s) must leave the country with the foreign national, they may suffer an economic impact resulting from the sale of a home, business, or other asset. If the foreign national or qualified relative has a professional practice, there may be an economic impact as a result of its termination. The foreign national and qualified relative(s) may be unable to recoup losses or repay student loan debt. If the qualifying relative(s) doesn’t speak the language of the foreign national’s country of relocation, it may greatly curtail employment opportunities in that country. Further, the availability or even viability of job training, including technical or vocational opportunities, for the qualifying relative may be limited, non-existent, or impractical due to their inability to speak the language. The same might be true for educational opportunities for the qualifying relative, or children of the qualifying relative, in the country of relocation. Whether the qualified relative(s) stays in the United States or leaves with the foreign national, there may be costs of extraordinary needs, such as special education or training for children. In the case of the qualified relative being a child(ren) or an elderly, sick, or disabled parent(s), there may be costs for care that can no longer be met causing them hardship.

6.7  Health Conditions and Care Though it may seem that a psychologist would have little to say about medical care and treatment (that’s the physician’s place, right?), this is actually an important area for the forensic psychologist to weigh in. The forensic psychologist should request and review all of the medical records for each of the individuals involved in the matter. The forensic psychologist should also research the availability and quality of

6.8  Social and Cultural Impact

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any required medical treatment in the country to which the applicant would be returned, including length, cost of treatment, and what the person in need of the care must do or may endure. It may even be necessary to interview treating physicians to get a deeper understanding of the existing medical condition. In examining the medical issues involved in the matter, the forensic psychologist should lay out the diagnosis(es), symptoms, course of treatment, and incidents experienced because of the medical condition (i.e., heart palpitations requiring a trip to a hospital emergency room). Once this review is complete, the forensic psychologist can assess: the psychological impact on the qualifying relative due to either separation from the applicant or departure from the United States, including separation from other family members living in the United States; and the potential psychological impact on the qualifying relative due to the suffering of the foreign national which may include prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by prior grants of asylum, refugee status, or other forms of humanitarian protection.

6.8  Social and Cultural Impact There exists the possibility that the foreign national will face persecution or societal discrimination if returned to their country of origin. Some foreign nationals may return to find that they face punishment, either by that nation’s law or social practices, for associating with and living in Western culture and supposedly living by Western values. This may greatly affect or preclude the foreign national from access to social institutions and structures (both official and unofficial ones) for support, guidance, or protection. If the foreign national leaves the United States by him- or herself, it may cause hardship in terms of ability to provide economic support for the remaining qualifying relative(s), cause emotional hardship to the qualifying relatives as a result of knowing the conditions under which the foreign national is living or reduce the ability for the foreign national to communicate with the qualifying relative(s). If the qualifying relative(s) leave the United States with the foreign national, they too may be punished or subjected to the same ostracizing from that nation’s institutions and structures for support, guidance, or protection to the same extent as the foreign national. Both the foreign national and the qualifying relative(s) could also face social exclusion, stigma, persecution, or societal discrimination based on their personal characteristics such as: gender; gender identity; sexual orientation; religion; race; national origin; ethnicity; citizenship; age; political opinion; political activities; marital status; disability; or just simply because they lived amongst those in the United States.

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6.9  Loss of Legal Access/Rights in the United States The removed foreign national or qualifying relative(s) who relocates to another country could lose their access to the U.S. court systems, federal or State, civil or criminal. This may include the loss of opportunity to give evidence or testify in criminal prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Some foreign nationals are granted nonimmigrant status in the United States if they are the victim of or are a witness to certain crimes. This is known as a U-Visa. Congress created this special visa to strengthen the ability of law enforcement to investigate and prosecute certain crimes and to protect those here without immigrant status so they can work with law enforcement agencies.

6.10  Country Conditions What are the conditions in the foreign national’s country of origin? Is the government stable? Is there civil unrest? Uncontrolled levels of violence? Military operations (either by or against the country of relocation)? Is the government of that country able to address crime (i.e., have gangs taken over the streets)? Has the United States placed economic sanctions against the country? Has the country been affected by natural disaster such as flooding or earthquakes? Are there any socioeconomic or political conditions that may place the foreign national in danger or lead to reasonable fear of physical harm? Was the foreign national or the qualifying relative ever granted Temporary Protected Status (TPS) due to conditions in their country of origin? Has the Department of State issued any travel warnings regarding the country of origin? While the attorney representing the foreign national or qualifying relative should retain an expert qualified to outline the conditions of the foreign national’s country of origin (if that is an issue) and that expert will present a report on that topic, the forensic psychologist can assess this in terms of the psychological effects these conditions will or may have on the qualifying relative either directly or as a result of knowing that the foreign national will become exposed to these conditions if returned.

6.11  Existing Mental Health Issues

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6.11  Existing Mental Health Issues In the direct wheelhouse of the forensic psychologist is the existence of a mental illness/disorder with any of the qualifying relatives or of the foreign national. Two possibilities exist here: there is an existing and diagnosed mental disorder which is being or has been treated; or there is an existing mental disorder that has not been diagnosed and treated. In the event a qualifying relative has an existing mental disorder, the forensic psychologist must examine the psychological records to determine the nature, severity, and course of the disorder. It may even be necessary to interview the treating psychologist. How does the foreign national aid or contribute to the care of the qualifying relative’s disorder? Depending on the nature and severity of the psychological disorder, the contribution of the foreign national may be tremendous. What are the potential psychological effects (i.e., exacerbation of the disorder, return of a disorder that has been abated, suicidality) on the qualifying relative if the foreign national is no longer available to care for them? What about a situation in which there is an existing but undiagnosed and untreated psychopathology? In many cultures, going to a psychologist is not even an option. It may be considered shameful for the individual or to the family for someone with a mental health issue to discuss these problems with a stranger—even if that stranger is an authority figure (such as a psychologist). As an example, in my own practice in Queens, NY, one of the most diverse places on the planet, I rarely see foreign nationals from East Asian countries coming in for treatment unless they are directed by their physician. Recently, an immigrant from China came to my office. I first saw him standing in the entranceway to my office (an outdoor porch) staring at the front door and went outside to see why he was just standing there. He said that he had sleeping issues and that his doctor told him to come and see me. He stated that he would not even be standing outside my door if he hadn’t already tried every possible way to improve his sleep and all of them had failed. He specifically said, “Chinese people don’t go to psychologists.” Fortunately, I was able to convince him to come in and to accept the treatment. I have a good number of Asian patients at any given time in my practice but they are mostly those who have been born and raised in the United States. Understanding the cultural norms of your clients is important and may become an essential element in the evaluation and report. Part of that understanding is recognizing that these individuals may turn to others who are considered acceptable for help. This could include clergy or spiritual advisors. Many times mental disorders will be presented by the individual in physical terms (i.e., headaches, digestive issues) and they will seek “medical” help from their physician. Interviewing and getting statements from these individuals may be helpful in determining the existence and extent of a psychopathology. Suppose you meet with a qualifying relative and foreign national and believe there may be an existing but undiagnosed psychological disorder. It may be necessary to conduct psychological assessments to determine and diagnose an existing

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psychological disorder in the qualifying relative. It is important to be sure that any assessments you employ are culturally and linguistically valid for the individual being assessed. It may be necessary to have the individual assessed by another psychologist who is trained and has the proper assessment materials for that particular culture or language. Using an interpreter or translator for assessments validated in western culture will most likely not produce valid results and will be easily discredited (as will you) by the opposing side. If it is determined that a psychological disorder does exist and requires treatment, the evaluation can now include a focus on how the foreign national has contributed to the care of the qualifying national thus far and is necessary for the treatment and stability of the qualifying relative going forward. Once that has been established, a discussion on why the mental disorder went undiagnosed becomes an important issue to address. Explaining the cultural norms and practices of the qualifying relative so that the judge will understand why this disorder is only now being diagnosed becomes crucial to the evaluation and will help in avoiding a denial of the application. The reverse is also important. If the foreign national has a diagnosed or undiagnosed psychological disorder, the forensic psychologist must evaluate the contribution(s) of the qualifying relative and what the effects of either separation from, or removal with, the foreign national will have on the foreign national. What type of psychological disorder may exist in the qualifying relative or foreign national? Trauma and trauma-related disorders such as post-traumatic stress disorder, anxiety, or adjustment may exist due to mistreatment, torture, sexual assault, domestic violence, and other experiences in the country of origin. The stress of the immigration matter may bring out or exacerbate an existing disorder. In many cases it may be that there is no easily identifiable psychological disorder. There may be stress due to the current circumstances of the foreign national and qualifying relative(s)—that would be expected—but nothing that meets the threshold of a DSM-rated psychopathology. Looking more broadly at the psychological/ emotional issues experienced by those involved by examining current sub-clinical issues (i.e., anxiety) and past psychological issues (i.e., trauma, anxiety disorder, depression) that may be affected/triggered by the removal of the foreign national or relocation of the qualifying relative is an important area to explore and thresh out.

6.12  Supporting Documentation Included in, and in support of, the evaluation, the forensic psychologist should append copies of all available documentation including: birth certificates; marriage certificates; adoption papers; paternity orders; orders of child support; medical records and reports; protective orders and other court documents; photographs; police reports; membership records from community organizations, volunteer activities, or related cultural affiliations; employment records; financial records (as may be relevant); newspaper articles and other relevant credible evidence.

6.13 What Happens If an Extreme Hardship Cannot be Found?

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If the evaluation includes interviews or information from others with personal knowledge, it may be wise to include the individual statements, possibly in affidavit form, made by the relevant witnesses. In a recent matter, I had family members write out statements involving their personal knowledge of the domestic abuse against one of the women in their family and included the statements in the appendix section of my report (and referred to them within the report).

6.13  W  hat Happens If an Extreme Hardship Cannot be Found? There may be times when, after a complete assessment and evaluation, the forensic psychologist is unable to find any evidence of an extreme hardship. As stated earlier, it is the ethical duty of the forensic psychologist to inform the foreign national’s attorney of the results of the assessment before doing anything further.

Chapter 7

The “Exceptional and Extremely Unusual Hardship” Waiver

Another type of waiver, known as the Cancellation of Removal, is an application made in which the undocumented immigrant must show that his or her removal from the United States would result in “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence”1 [emphasis added]. The foreign national must have resided continuously in the United States for 10 years, not have been convicted of any crimes involving moral turpitude or drug related offenses and be deemed to be of “good moral character.” The “exceptional and extremely unusual hardship” standard is probably the highest and most difficult standard that exists in U.S. law—even surpassing the “beyond a reasonable doubt” standard the government must meet in criminal cases. The BIA  CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS “Sec. 240A. (a) Cancellation of Removal for Certain Permanent Residents. The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien: 1. has been an alien lawfully admitted for permanent residence for not less than 5 years 2. has resided in the United States continuously for 7 years after having been admitted in any status 3. has not been convicted of any aggravated felony (b) CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS. (1) IN GENERAL. The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien: (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application (B) has been a person of good moral character during such period (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3), subject to paragraph (5) 2a/ 5/ (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence 1

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has determined that to establish “exceptional and extremely unusual hardship” the foreign national must demonstrate that “his or her spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the alien’s deportation, but need not show that such hardship would be ‘unconscionable’.”2 Additionally, it must be demonstrated that the hardship is “beyond that which has historically been required in suspension of deportation cases involving the ‘extreme hardship’ standard.”3 In matters requiring the “exceptional and extremely unusual hardship” standard, only the hardship(s) affecting the qualifying relatives will be considered unless hardship to the foreign national will create an “exceptional and extremely unusual hardship” to the qualifying relative.4 In determining whether the “exceptional and extremely unusual hardship” standard is met in any given case, the immigration court and BIA will look to the “ages, health, and circumstances of qualifying lawful permanent resident and United States citizen relatives.”5 Other factors to be considered include a “lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative,”6 marital status and available financial resources,7 the qualifying relative(s)’s unfamiliarity with the language of the foreign national’s country of origin, endangered educational opportunities and limited or no alternative means of gaining lawful entry into the United States.8

7.1  L  egal Permanent Resident Cancellation of Removal Vs. Non-Legal Permanent Resident Cancellation of Removal Case A legal permanent resident (LPR) can be detained by ICE for removal from the United States if they have been convicted of a crime or have violated an immigration law. The LPR can raise the defense of exceptional and extremely unusual hardship to a qualified relative if they meet the eligibility requirements under the Immigration and Naturalization Act (INA). Specifically, the individual must have been a LPR for at least five (5) years at the time of the commencement of the removal proceeding, lived continuously in the United States for at least 7 years prior to the service of the Notice to Appear, or prior to committing the offense which triggered the proceeding against the LPR and not have not been convicted of an aggravated felon.  Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001).  Ibid. 4  Ibid. 5  Ibid. 6  Ibid. 7  Matter of Andazola, 23 I&N Dec. 319 (BIA 2002). 8  Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). 2 3

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If it is decided that the LPR has not met the burden for a cancellation of removal ruling, that individual can be removed from the country. A final order of removal may permanently bar the individual from ever returning the United States—even as a visitor.

7.2  E  xceptional and Extremely Unusual Hardship Vs. Extreme Hardship Cases While these two matters seem similar, they are distinguished by the eligibility requirements established by federal statute and immigration policy. The extreme hardship application (waiver of inadmissibility) can be brought by a foreign national who is inadmissible and living either in or outside the United States. The application made by the foreign national is asking the immigration court to waive the condition or conditions which make him or her inadmissible (as described in previous chapters). It is an application that can be made at any time by the foreign national. The exceptional and extremely unusual hardship matter (cancellation of removal) is a purely defensive move against a removal (deportation) proceeding. The individual must already be in removal proceedings in order to use this form of relief. This means that there will be times when your client may be held in detention somewhere in the United States and not readily accessible to the forensic psychologist (requiring travel to the detention center. While it is possible that telephonic/electronic communication may be possible, the forensic psychologist must be wary of privacy considerations). The legal permanent resident cancellation of removal is a last resort defensive move by the individual in removal proceedings. Both types of cancellation of removal cases (LPR v non-LPR) require the “exceptional and extremely unusual hardship” threshold to be met in order to successfully ward off removal from the United States. As can be seen below, it is a very difficult threshold to achieve and a great challenge to the forensic psychologist.

7.3  Cancellation of Removal In Matter of Monreal-Aguinaga, the foreign national was a 34-year-old Mexican male who had been living in the United States for 20 years. He had been brought into the United States by his parents when he was 14 years old and had remained in the country since. He married a Mexican national and they had three children. His wife was not in the United States legally and voluntarily returned to Mexico with their infant child leaving the two older children, both U.S. citizens, to remain in this country with their father. Since his arrival in the United States, Monreal-Aguinaga worked for his uncle’s business which provided him sufficient income to care for his two children in the United States and to send money to support his wife and child in

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Mexico. Monreal-Aguinaga’s parents, who lived and had legal status in the United States, would help care for the children while their father was at work. Everyone involved in the matter was in good health. At the immigration court hearing, the oldest child (12 years old), a qualified relative, testified that his life was here in the United States where he did well in school and had friends, he is very close to his grandparents, he had no ties to Mexico (other than his mother and sibling), he had no desire to live in Mexico, but that he would move to that country if his father was ordered to leave the United States. MonrealAguinaga met the criteria for a cancellation of deportation application—the main issue to be decided was whether a qualifying relative(s) would suffer exceptional and extremely unusual hardship according to the federal statute. The BIA, in its decision, recognized that the factors to be considered in a Cancellation of Removal case were the same as those for an application which fell under the “extreme hardship” standard but with a different application of the weight given the evidence provided. In other words, when weighing the evidence presented, does it go beyond the extreme hardship threshold to meet the higher exceptional and extremely unusual hardship threshold? In this case, the BIA acknowledged that if this were an “extreme hardship” matter the foreign national might very well have prevailed with his application however, despite the fact that his qualified relative(s) will experience some hardship as result of relocating to Mexico, since the father was young, healthy, and had economic opportunities in Mexico to continue supporting the family (which, by the way, would be reunited by Monreal-Aguinaga’s relocation), it was held that there was no showing of exceptional and extremely unusual hardship. Contrast that case with the Matter of Recinas. Recinas, a Mexican national, was the mother of six children, four of whom were U.S. citizens. She was divorced from her husband, the father of the children, who at one time had provided child support payments but ceased some time earlier and was no longer involved with the family (he was also involved in an immigration removal proceeding). Her entire family lived in the United States—all of whom were here with legal status—and they all enjoyed a very close familial relationship. Recinas’ mother, who lived 5 minutes away, helped care for the children while she worked at the motor vehicle inspections business she had created and managed. The business was profitable and employed two other people. The four U.S. citizen children had never been out of this country and did not speak, read, or write in Spanish. Additionally, Recinas had no viable way of applying for legal entry into the United States in the foreseeable future due to a backlog of visa applications available to Mexican nationals, thus leaving her with little hope of immigrating to the United States. The BIA distinguished this case from Monreal-Aguinaga, finding that it fell “on the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.”9 The BIA recognized the congressional intent of holding Cancellation of Removal applications to a higher stan-

 Matter of Recinas, above.

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dard to allow for only a narrow class of foreign nationals here illegally in order to qualify for relief. It was held, “[f]rom the perspective of the United States citizen children, it is clear that significant hardship will result from the loss of the economic stake that their mother has gained in this country, coupled with the difficulty she will have in establishing any comparable economic stability in Mexico. We emphasize that the respondent is a single parent who is solely responsible for the care of six children and who has no family to return to in Mexico. These are critical factors that distinguish her case from many other cancellation of removal claims.”10 Additionally, “…all of the respondent’s family, including her siblings, reside lawfully in the United States. We find this significant because they are unlikely to be subject to immigration enforcement and will probably remain in the United States indefinitely. The respondent’s family members are very close and have been instrumental in helping her raise her children and obtain the necessary funds to establish her business. The loss of this support would further increase the hardship that she, and therefore her United States citizen children, would suffer if they are compelled to return to Mexico, where no support structure exists.”11 And finally, the BIA found that Recinas’ “…prospects for lawful immigration through her United States citizen siblings or lawful permanent resident parents are unrealistic due to the backlog of visa availability for Mexican nationals with preference classification.”12 In its analysis, the BIA held that the hardship evidence presented was “more different in degree than in [other matters decided by the BIA]…” “…Part of that analysis requires the assessment of hardship factors in their totality, often termed a “cumulative” analysis. Here, the heavy financial and familial burden on the adult respondent, the lack of support from the children’s father, the United States citizen children’s unfamiliarity with the Spanish language, the lawful residence in this country of all of the respondent’s immediate family, and the concomitant lack of family in Mexico combine to render the hardship in this case well beyond that which is normally experienced in most cases of removal. The level of hardship presented here is higher than that established in… [the Matter of] Monreal…and, in our view, is sufficient to be considered exceptional and extremely unusual.”13 Notice that in neither of these cases did there exist an issue of medical or psychological disorder. It is recognized that the availability of professional, adequate and available medical and psychological care and treatment is an important factor in making these determinations as is the support of the foreign national to a qualifying relative sufferer or to the foreign national by a qualifying relative in reaching the level of exceptional and extremely unusual hardship. Also notice that the precedent cases are almost two decades old. As of this writing, the various federal jurisdictions are divided as to what determines an exceptional and extremely unusual hardship. It is important for you, as the forensic

 Matter of Recinas, at pg. 471.  Ibid, at 472. 12  Ibid, at 472. 13  Ibid, at 472. 10 11

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psychologist to discuss with the attorney handling the matter, the criteria necessary to meet this standard in the federal jurisdiction you are working in. Many cancellation of removal cases involve a crime for which the foreign national was convicted. While the forensic psychosocial evaluation will focus on the qualified relative(s) and the exceptional and extremely unusual hardship they will suffer, the evaluation must also include a mitigation assessment of the foreign national with regard to the criminal matter. Conducting mitigation assessments are discussed in Chapter 11.

7.4  What Is “Good Moral Character”? Many applications for relief by a foreign national require a showing of “good moral character.” There is no actual definition in the Immigration and Naturalization Act or in the USCIS Policy Manual outlining what constitutes good moral character. The Policy Manual states that good moral character means “character which measures up to the standards of average citizens of the community in which the applicant resides.”14 In reviewing the history of a foreign national, the adjudicator looks to “[a]ny conduct or act that offends the accepted moral character standards of the community in which the applicant resides should be considered without regard to whether the applicant has been arrested or convicted of an offense.”15 The Bureau of Immigration Appeals, in the Matter of Perez-Contreras, held: “[M]oral turpitude is a nebulous concept which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general... In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.”16

In Matter of Sanchez-Linn, it was held that good moral character does not mean “moral excellence.”17 The federal statute and the USCIS only define good moral character in negative terms. In other words, it looks to acts the individual has done as a “bar” to good moral character.18 The USCIS divides past acts into two categories: “permanent bars” and “conditional bars” to establishing good moral character. These bars are determined by reviewing the individual’s history of convictions, offenses, activities, and other acts. Despite the relevant statutes setting forth the time frames for  https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-1. Accessed 15 Dec 2019.  Ibid. 16  Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992). 17  Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991). 18  https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5. Accessed 15 Dec 2019. 14 15

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r­ eviewing the acts of the foreign national (the forensic psychologist should consult with the attorney handling the matter to determine the appropriate time frames), in its application any act, committed at any time in the individual’s life, can affect the determination of that individual’s good moral character. Whether a foreign national is deemed to be of good moral character rests largely within the discretion of the adjudicator. Under the INA, permanent bars to good moral character include: murder, rape, or sexual abuse of a minor; illicit trafficking in controlled substance; illicit trafficking in firearms or destructive devices; money laundering offenses over $10,000; explosive materials and firearms offenses; a crime of violence that imposes a sentence of imprisonment of at least 1 year; theft offense that imposes a sentence of imprisonment of at least 1 year; demand for or receipt of ransom; child pornography offense; racketeering or gambling that imposes a sentence of imprisonment of at least 1 year; prostitution offenses that involve the managing, transporting, or trafficking of humans; gathering or transmitting classified information; fraud or deceit offenses or tax evasion over $10,000; alien smuggling; illegal entry or reentry by removed aggravated felon; passport or document fraud that imposes a sentence of imprisonment of at least 1 year; failure to appear sentence (an offense punishable by at least 5 years); bribery, counterfeiting, forgery, or trafficking in vehicles; obstruction of justice, perjury, or bribery of a witness; failure to appear to court (an offense punishable by at least 2 years); attempt or conspiracy to commit an aggravated felony; the individual was involved in the persecution, genocide, torture, or severe violations of religious freedom of others. Conditional bars to good moral behavior include: one or more crimes involving moral turpitude; a conviction of two or more offenses with combined sentence of 5 years or more (other than political offenses); a violation of any controlled substance law, except for simple possession of 30 g or less of marijuana; incarceration for a total period of 180 days or more, except political offenses and ensuing confinement abroad; false Testimony under Oath for the purpose of obtaining any immigration benefit; engaged in prostitution, attempted or procured to import prostitution, or received proceeds from prostitution; involved in smuggling of a person to enter or try to enter the United States in violation of law; practiced or is practicing polygamy; two or more gambling offenses or derives income principally from illegal gambling activities; is or was a habitual drunkard; two or more convictions for driving under the influence during the statutory period; the willful failure or refusal to support dependents, unless extenuating circumstances are established; participating in an extramarital affair tending to destroy existing marriage, unless extenuating circumstances are established; and other unlawful acts that adversely reflect upon good moral character, unless extenuating circumstances are established. In 2019, the U.S. Attorney General ruled that evidence of two or more convictions for driving under the influence during the relevant period establishes a

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p­ resumption that an alien lacks good moral character under INA § 101(f), 8 U.S.C. § 1101(f).19 The Attorney General stated that this is now an absolute bar to relief. Section 101(f) of the INA has a “catch-all” phrase which states, “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.” It is under this catch-all where the adjudicator can exercise the widest discretion.

7.5  Assessing Good Moral Character An adjudicator is mandated to look to the “totality of the circumstances” surrounding the foreign national’s life and actions, both favorable and unfavorable, when deciding whether the individual is of good moral character. The adjudicator is directed to look to the following factors in determining the foreign national’s current moral character and reformation of character: • • • • • • • • •

Family ties and background Absence or presence of other criminal history Education Employment history Other law-abiding behavior (for example, meeting financial obligations, paying taxes) Community involvement Credibility of the applicant Compliance with probation Length of time in United States

This opens the door for the forensic psychologist to participate in the proceeding. The psychosocial evaluation can help to present to the adjudicator the “totality” of the foreign national’s circumstances presenting a sympathetic narrative which puts the actions of the individual in a clear perspective. It is also an opportunity to show that despite past bad acts the foreign national has changed and has become a person of good moral character. Determining what the potential “bad acts” in the foreign national’s past that could jeopardize a claim of good moral behavior is an important first step in the evaluation and will be part of the initial interview, review of relevant documents, third-party interviews, and the like (check with the attorney for information already procured by so as not to duplicate efforts). The forensic psychologist must be cautioned, however, about including bad behaviors of the foreign national in the report that might not otherwise be known by or available to the adjudicator (i.e., acts that are not offenses). The adjudicator has the discretion of making negative inferences

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 Matter of CASTILLO-PEREZ, 27 I&N Dec. 664 (A.G. 2019).

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as well as positive ones—providing additional fodder could be detrimental to the ultimate outcome. Once the bad act(s) is identified, the psychosocial evaluation looks to understand why they happened and then towards the foreign national’s feelings of remorse and changes in behavior. Simply because there were bad acts in the individuals past doesn’t automatically preclude them from a finding of good moral character. The Court in Posusta v. United States, stated that, “a person may have a ‘good moral character’ though he has been delinquent upon occasion in the past; it is enough if he shows that he does not transgress the accepted canons more often than is usual.”20 In understanding the individual’s bad acts, questions such as: whether the foreign national knew and understood that the act was a criminal offense or a bad act (i.e., was it normal behavior based upon the individual’s cultural background?); was there someone forcing the foreign national to engage in the behavior (i.e., abusive partner)?; were there extenuating circumstances that caused the foreign national to behave in that manner (think Jean Valjean)?; what was the age of the individual at the time (i.e., immaturity, youthful peer pressure)?; and more. The forensic psychologist can explain the past bad behaviors in the context of the individual’s life experiences. To add an evidence-based part to the good moral character assessment, the forensic psychologist can look to personality assessments, such as the MMPI-2 assessment. There are a number of scales that can be helpful in identifying (or eliminating) certain traits or behaviors for example: Anger (ANG); Explosive Behavior (ANG-1); Antisocial Practices (ASP); Aggressiveness (AGGR); Psychoticism (PSYC); Disconstraint (DISC); Antisocial Attitudes (ASP-1); Antisocial Behavior (ASP-2); Aggressiveness (AGGR); Social Responsibility (Re); Hostility (Ho); Overcontrolled Hostility (O-H); Addiction Admission (AAS); and Addiction Potential (APS). Issues involving drug and alcohol addiction and the behaviors or offenses associated with it will need to be identified and explained as well as the efforts to recover from their use. Self-medicating may be one reason why the foreign national partook in the drug related use, abuse, and activities and can be explained in context. In cases where there may have been aggressive or violent activity by the foreign national a risk assessment may be needed to be undertaken. An example of tools to be used include: Psychopathy Checklist-Revised (PCL-R); Sexual Violence Risk-20 (SVR-20); Static-99; and Violence Risk Appraisal Guide-Revised (VRAG-R). Of course, the assessment report will include the measures taken by the individual to reduce their behaviors (i.e., psychotherapy) and their current level of functioning.

20

 Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961).

Chapter 8

Domestic Abuse Waivers

My first foray into forensic psychology for immigration cases was not intentional. I am an attorney for more than 30 years. I built a law practice from sitting by myself in a closet of an office to having a mid-sized firm in the financial district of downtown Manhattan in a few short years. During those early years I was offered an opportunity to handle some immigration matters for a law firm that needed some extra help. I learned much about how the immigration laws and system worked at that time but it was not an area that intrigued me as an attorney and I moved on to handle other types of legal matters. Immigration law was not one of the divisions in my firm. Decades later, when I decided to close my law practice and open a full-time psychology practice I swore that I would never again do anything professionally in the legal system. That oath didn’t last long. I had been teaching at a local college and the Chair of the Psychology department continuously “suggested” that I create and teach courses in forensic psychology— since I am both a psychologist and an attorney, of course. I finally gave in and created courses on the undergraduate, graduate, and post-graduate levels. Soon thereafter, I was approached by an attorney to do a forensic assessment in one of his cases and there began my venture into forensic psychology practice. One day, a number of years afterwards, a woman walked into my private psychology practice office without an appointment. Most of her head was covered and she was dressed in long-sleeves and a long skirt despite the warm weather. In broken, but perfectly understandable English, she explained to my receptionist that she was from a Muslim country and was coming to me to handle her VAWA case. VAWA? What the heck was VAWA? When this was first relayed to me, I thought it was simply a matter of this woman’s poor command of English that was preventing me from understanding her but when I went out to speak with her she pulled out a business card from a neighborhood attorney’s office and written on the back were the letters V-A-W-A. She said

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that the attorney had told her to see me and that I would handle the psychological aspect of her VAWA case. I immediately looked it up and found that VAWA stood for “Violence Against Women Act1” and that it was an application in immigration cases. I contacted the woman’s attorney and did some research on VAWA.  I certainly was qualified to conduct assessments. I was thoroughly familiar with legal process and procedure. I had been handling forensic matters. I consulted with a colleague whose entire psychology practice consisted mostly of conducting immigration assessments. I decided to dip my toe into immigration matters. This woman’s story went something like this...2 Her name was Adara3 and she was born in a Muslim country. She came from a poor family that struggled to survive in the difficult economy of their land. She had little education and little prospects in her country. Her parents, hoping to give their children (all very attractive daughters) a better life, arranged marriages with well-to­do families. When Adara’s turn came for betrothal, the family arranged for her to marry a man, Abdul, whose entire immediate family had moved to the United States, became citizens or legal permanent residents and established a successful business. They had a big home on the U.S. west coast in which their entire family lived. A visa was procured for Adara and she left her country and legally entered the United States. She arrived and was picked up by her future husband and in-laws at the airport. They took all of her papers and drove her back to their house. Once there she was brought to the room she would be staying in until the wedding. She was awed by the size of their home and all of the luxurious decorations, electronic devices (televisions, stereos, computers, etc.), and the number of cars in the long drive way! Adara unpacked her few belongings and prepared herself for her new life. She was excited to get to know her husband-to-be and her new family, pick a wedding date, make all the arrangements, and plan for her family to travel to the United States (Abdul’s family had agreed to pay for her parent’s passage) for the ceremony. She called her parents and her sister and told them of the beautiful, extravagant home she was staying in. Her first week in the United States was like a dream. Compared to how she lived in her country, the lifestyle in Abdul’s house was opulent. More food than could be eaten was served at every meal, there were so many rooms in the house that, at first, Adara got lost on her way back to her bedroom, and the family had all sorts of appliances and automobiles. The entire family was very nice to her and took her see the sights. She told her parents how happy she was to be in the United States and thanked them for making a wonderful match.

1  The Violence Against Women Act was federal legislation enacted in 1994 (which, by the way, was passed into law after I stopped handing immigration matters for that law firm in the 1980s). 2  The facts in this story have been slightly altered to protect the identity of the woman and the participants in this matter. All of the names and places have been changed. 3  Fictitious name of the individual. Adara means “virgin.”

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One night soon thereafter, as she lay in bed, Abdul entered her room without knocking, pulled the covers off of her and began to undress. She objected to his coming into her room and told him that she would not have intercourse with him until after the wedding. He told her to be quiet and do as she was told but she continued to resist. Adara leapt out of the bed, screaming for help and for him to leave her bedroom. He continued to approach her and she threw something at him. Abdul left the room angrily cursing at her. The next day was warm and sunny. He told her they were going to the beach with some friends. When they arrived at the beach, she saw his friends were both men and women—all dressed in speedos and bikinis. Adara was covered from head to toe. Abdul told her to change into the bikini he had brought for her. She refused. She learned that the other girls were also Muslim and from her country but they exposed almost all of their body. She remained in full garb. For the entire day at the beach Abdul and his friends made fun of her. That night he again attempted to have intercourse with her but she fought him off again. This time he left her room laughing. The next day she heard banging outside her window. Someone was boarding up her window and a lock had been placed on her bedroom door with the key knob facing her. She was trapped inside the room. She screamed to be let out. She begged to be given a phone so she could call her family. She screamed. She pounded on the door. But no one responded. Finally, her future mother-in-law unlocked the door and entered. She told Adara that she will remain in this room and only be allowed to leave in order to do house chores (the room had an attached bathroom). If she refused to do the house chores, she would not be fed. Adara asked to call her parents but her request was denied. She protested but the mother-in-law to-be told her she would just be making things worse for herself. Adara, in a strange land with no money, no papers, no way to communicate with the outside world, and no allies, was left with no option but to obey. She was shown the mud room where all the cleaning supplies were kept and told to clean the house. Adara had hoped to be able to sneak a phone call on one of the house phones (she did not have a cell phone) but the entire time she was doing the cleaning or was out of her room someone was watching her. At times she would be permitted to write a letter to her parents or sister but always under the watchful eye of someone who made sure she did not write anything negative about the family. One day weeks later she was told to get dressed and get into the car. She got into the back seat between Abdul and his brother. Abdul’s parents sat in front. They drove for a long time to where she did not know. Finally, they stopped at a building where she was told to get out. She was given a series of papers to sign but since she couldn’t speak, read, or write in English she did not know what it was she was signing. They went into a room where a man spoke to them for a few moments in English and then with a big smile shook everyone’s hand. Next they went back into the car and pulled up in front of a building that looked to her like a mosque. Realizing this was one place where someone might speak her language she said in front of anyone present, “No, no, I want to go home! I don’t

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want to do this!” But no one paid attention to her. She was already legally married and moments later she was religiously married, as well. That night Abdul returned to her room. “We are married now!” He insisted she have sex with him. She tried to fight him off. He beat her (according to Adara he did not have intercourse with her but I never knew if that was true or whether that was her face-saving story). After that Adara refused to eat, leave the room or do any chores. The mother-in-law convinced her to eat by allowing her to write a letter to her parents and sister which Adara did as her mother-in-law watched intently to insure she didn’t say anything “forbidden.” Meanwhile, Adara’s family was beginning to worry about her. They hadn’t received a phone call from her since her arrival in the United States months earlier. They tried calling her but were always told Adara was unavailable to take their call. When they received only letters, their suspicions grew even more. But their worsening financial situation left them in no position to do anything but wait. Her sister, Kizkard (Kizzy), was happily married to a successful businessman who was more liberal in his beliefs than most in their culture. Kizzy had been sharing her concerns about her younger sister over the past months with her husband and asked if he would pay for her and her parents to travel to the United States to visit her sister. He agreed and made the arrangements. They traveled to the U.S. west coast and, after dropping their things off at the hotel, immediately drove to the house where Adara was living and arrived unannounced. At first they were given excuses why they couldn’t come in but they adamantly insisted on seeing Adara until finally they were allowed in. Even with Abdul’s mother and brothers watching, Adara told her parents and sister what had transpired. Her family said they were removing her immediately from the house but Abdul’s family refused to let her go. It should be noted that by this time Adara’s visa had expired leaving her without legal status in the United States. Fearful of calling the police, Kizzy and her parents began making plans for Adara’s escape. Using Kizzy’s husband’s resources (it seems he did very well in his business and was well respected), they began contacting authority figures in their country to help them and to contact Muslim authority figures in the United States. Meanwhile, Adara remained in Abdul’s house and did the daily chores. She also began to teach herself to speak, read, and write in English. Abdul’s family ignored all of the interventions from the community both from their country of origin and in the United States insisting that they were doing nothing wrong and were not mistreating Adara. Not having any success, Kizzy came up with a daring escape plan. At night, Kizzy crept up to Adara’s window and slipped messages through to advise Adara of the plan. One day, when Adara went outside to throw out the garbage, instead of returning to the house she ran down the driveway, opened the gate and jumped into a car where her sister was waiting for her. After picking up a few things, they drove across the country to New York where Kizzy’s husband had rented an apartment for Adara. There was nothing for Adara back in her country of origin and she wanted to stay in the United States where she could go to school and build a life. With Kizzy’s husband’s support, she was able to do that.

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After settling into living in New York, she met with an immigration attorney and a divorce attorney. Two years later she walked into my office to ask for a forensic evaluation. (BTW—She did go to school, first to learn English, then to get her GED4 and then to college. She was hired as an interpreter for a large corporation and is doing well.) # In the early 1990s, then-Senator Joe Biden and Representative Louise Slaughter (NY) wrote the Violence Against Women’s Act (VAWA) which was signed into law by President Bill Clinton in 1994. This federal statute was intended to end violent acts committed against women by providing the “justice system with resources, training, and policies to deal with a crime that historically was treated as a private matter between a husband and wife.”5 In the Reauthorizations of VAWA in 2000 and 2013, Congress added protections for immigrants as well which recognized “sexual assault, dating violence, and stalking as serious crimes.”6 The federal law provides that foreign nationals who are the victim of battery or extreme cruelty committed by a U.S. citizen or LPR spouse, parent or child, may apply for legal permanent residence. Congress, recognizing that foreign nationals are in a vulnerable position where they can easily be manipulated or controlled due to their inability to communicate effectively, lack of financial resources, lack of legal status and/or the withholding of their documents, unfamiliarity with U.S. laws and protections and more, added to VAWA the ability of the abused foreign national to file an application for legal permanent residence without the need for providing a qualifying relative or having to notify the abusive qualifying relative of the application, at all. Though called the Violence Against Women Act, the protections under the law are available to men, as well. Certain spouses, children, and parents who have been victims of battery or extreme cruelty are covered by VAWA and may be eligible to become a lawful permanent resident if the following criteria are met7:

8.1  Eligibility Requirements for a Spouse The abused foreign national spouse must show that they are a person of good moral character and have been in a legitimate marriage to a U.S. citizen or legal permanent resident who committed the abuse. The abused spouse must also show that they 4  General Educational Development (GED). Passing the GED examination is the equivalent to a high school diploma. 5  Office on Violence Against Women (2016). Twenty Years of the Violence Against Women Act: Dispatches from the Field. U.S. Department of Justice. https://www.justice.gov/ovw/file/866576/ download. Accessed 27 Apr 2019. 6  Ibid. 7  https://my.uscis.gov/exploremyoptions/green_card_battered_spouse_or_child_or_parent

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lived with the abusive spouse. A legitimate marriage is one entered into in good faith and not for the purposes of obtaining immigration benefits. There are incidents where the foreign national spouse believes they have been legitimately married but it turns out the marriage is not legitimate because the abusive U.S. spouse was already married to another when the marriage to the abused foreign national supposedly took place. In that case, the abused spouse would still qualify to apply for relief under VAWA. If the abusive spouse lost or renounced their U.S. citizenship or LPR status due to an incident of domestic violence, the abused spouse must file the VAWA application within the 2 years of the abusive spouse losing their status. If the marriage to the abuser ended by death or divorce, the application for relief under VAWA must be filed within 2 years of that termination. In some cases, where the marriage was of a short duration suspicions might be raised as to whether the marriage was conducted fraudulently in an attempt to get around the immigration law. The foreign national has the burden of showing that the marriage was legitimate. The forensic psychologist may need to interview witnesses knowledgeable about the situation who could attest to the legitimacy of the union. The forensic psychologist should check with the attorney handling the case if such interviews or statements had already been obtained. Additionally, evidence that can be obtained and used include: proof of children born of the marriage; photographs of the couple (wedding pictures would be good together with a copy of the invitation and other wedding-related materials) and family (i.e., at various family events/ functions, trips); correspondence between the foreign national and the abusive spouse that indicates the nature of their relationship (i.e., “love letters”); and any other evidence that would indicate the veracity of the union. Once it is determined that there is a qualifying spousal relationship, then there must be a showing that the abused spouse or the child of the abused spouse was subjected to and experienced a battery or extreme cruelty by the U.S. citizen or LPR spouse.

8.2  Eligibility Requirements for a Child The abused foreign national child must show that they are a person of good moral character (except that a child under the age 14 is presumed to be a person of good moral character) who is the child of a U.S. citizen or legal permanent resident who committed the abuse or show that the abusive parent lost or renounced their U.S. citizenship or LPR status due to an incident of domestic violence. The child must provide evidence that they resided with the abusive parent. Once it is determined that there is a qualifying parental relationship, then there must be a showing that the abused child was subjected to and experienced battery or extreme cruelty by the U.S. citizen or LPR parent.

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8.3  Eligibility Requirements for a Parent The abused foreign national parent must show that they are a person of good moral character who is the parent of a U.S. citizen or legal permanent resident who committed the abuse who is at least 21 years of age at the time the application was filed or show that the abusive child lost or renounced their U.S. citizenship or LPR status due to an incident of domestic violence. The parent must provide evidence that they resided with the abusive child. In the event the abusive child was over the age of 21 and died, the parent’s application must be filed within 2 years of the date of death. Once it is determined that there is a qualifying parent/child relationship, then there must be a showing that the abused parent was subjected to and experienced battery or extreme cruelty by the U.S. citizen or LPR child. # A forensic psychological evaluation will provide the Immigration Judge with important information about the nature of the abuse experienced and the psychological effects or trauma suffered by the abused foreign national. The applicant must demonstrate that they suffered a battery or extreme cruelty at the hands of the U.S. citizen or LPR. For purposes of the VAWA application “battery or extreme cruelty” 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. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence.”8

8.4  Domestic Violence The Department of Justice (DoJ) defines domestic violence as, “a pattern of abusive behavior in a relationship that is used by one partner to maintain power and control over another current or former intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”9

 8 C.F.R. § 204.2(c)(l)(vi).  Office on Violence Against Women (2016). Department of Justice. https://www.justice.gov/ file/29836/download. Accessed 24 Apr 2019. 8 9

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8.5  Physical Abuse Physical abuse can take different forms. The most obvious include: hitting; kicking; punching; slapping; biting; pushing; shaking; grabbing; hair pulling; burning; cutting; pinching; having physical objects thrown at the victim; and more. In many cases, the abused individual will suffer some type of injury, such as cuts, bruises, or other marks. Other types of physical abuse may include: being held or tied down; locked inside a space with no means of escape; not allowing the victim to go to the bathroom; withholding food; withholding medical care; providing too much or too little medication; the use or threatened use of a weapon (i.e., a gun or knife); forcing the victim to ingest drugs or alcohol; and more.

8.6  Sexual Abuse Sexual abuse and/or assault is any type of sexual contact or behavior that is done without consent to another person, including those who are unable to consent because of they are below the legal age of consent or because they lack the mental capacity to consent. Obvious forms of sexual assault or abuse are forced sexual intercourse (vaginal, oral), sodomy, molestation, incest, fondling, and attempted rape. There are also less clear forms of sexual abuse such as: forced undressing or exposing of oneself; taking illicit photographs of the person; using sexual language which makes the person uncomfortable or forcing the person to watch or look at pornography.

8.7  Psychological/Emotional/Verbal Abuse As the heading to this section indicates, this is not an easily defined area and can be misidentified. For the most part, research into abusive behaviors (intimate partner violence, child abuse) has centered around the physical and more readily identifiable aspects of abuse despite reports from victims that the psychological/emotional/ verbal (referred to herein as psychological) abuse had a greater psychological impact than the physical abuse.10 Only recently has research in this area begun to focus on the psychological aspects of this form of abuse.  Começanha, R., Basto-Pereira, M., & Maia, Â. (2017). Clinically speaking, psychological abuse matters. Comprehensive Psychiatry, 73, 120–126. https://doi.org/10.1016/j. comppsych.2016.11.015 Mechanic, M. B., Weaver, T. L., & Resick, P. A. (2008). Mental health consequences of intimate partner abuse: A multidimensional assessment of four different forms of abuse. Violence Against Women, 14(6), 634–654. https://doi.org/10.1177/1077801208319283 Masci, B. S. S. F., & Sanderson, S. (2017). Perceptions of psychological abuse versus physical abuse and their relationship with mental health outcomes. Violence and Victims, 32(2), 362–376. https://doi.org/10.1891/0886-6708.VV-D-15-00180.

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Generally, psychological abuse occurs when one person uses non-physical (verbal, non-verbal) means to control another. This means that simply because someone is yelled at or experiences hurt feelings will not necessarily amount to psychological abuse. However, a pattern of behaviors which are meant to coerce, control, or manipulate another person can be deemed a psychological abuse. McCarroll (2009) defines psychological abuse as “recurring criticism, verbal aggression, acts of ­isolation and domination toward an intimate partner. Non-verbal psychological abuse, such as stalking, can also be considered psychological abuse.”11 The abusive behaviors can be divided into four areas: damaging to partner’s self-­ image or self-esteem through denigration; passive-aggressive withholding of emotional support and nurturance; explicit and implicit threatening; and restricting personal territory and freedom.12 Examples of behaviors which could be damaging to the person’s self-image or self-esteem could include: “telling the person they are ugly or unattractive*; treating the person as if they were stupid; telling the person they cannot work or study; insulting, shaming, or ridiculing the person in front of others;”13 telling the person they are property or owned; making accusations about the person (i.e., infidelity, honesty); cursing and name calling (i.e., “bitch”); blaming (i.e., “It’s your fault that…”); and others. Passive-aggressive withholding of emotional support and nurturance has been described as when one partner indirectly expresses negative emotions through behaviors rather than words. Examples of one partner exhibiting passive-aggressive behaviors include: acting with resentment, opposition, procrastination, intentional mistakes, or missed deadlines in response to the demands of the other partner; presenting with a cynical, sullen, or hostile attitude toward the other partner; or making frequent complaints about feeling underappreciated or cheated.14 Explicit and implicit threatening can include threatening to have the foreign national person deported. In many cases, such as one described above, the abuser withholds or destroys the foreign national’s documents or papers from USCIS.

 O’Leary, K. D., & Maiuro, R. D. (Eds.). (2001). Psychological abuse in violent domestic relations. Springer Publishing Company. McCarroll, James E. (2009). Adult Psychological Abuse. Center for the Study of Traumatic Stress (CSTS). https://doi.org/10.1037/e512862010-003 citing, O’Leary DK. (1999). Psychological abuse: A variable deserving critical attention in domestic violence. Violence & Victims; 14:3–23. See also, Mechanic, above. 12  Ibid. 13  Moffitt, T. E., Caspi, A., Krueger, R. F., Magdol, L., Margolin, G., Silva, P. A., & Sydney, R. (1997). Psychological Abuse Scale [Database record]. Retrieved from PsycTESTS. https://doi. org/10.1037/t22284-000 14  Hall-Flavin , D.K. (2019) What is passive-aggressive behavior? What are some of the signs? Mayo Clinic. https://www.mayoclinic.org/healthy-lifestyle/adult-health/expert-answers/passiveaggressive-behavior/faq-20057901. Accessed 26 Nov 2019. 11

*(and using various words to describe this, such as, “cow,” “fat,” “disgusting,” etc.)

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Examples of restricting personal territory and freedom can include opening and/ or taking the foreign national’s mail, listening in on telephone calls, restricting when the person can leave the home and who they can speak with, and stalking them when they are allowed to leave the home.

8.8  Economic Abuse The abuser can use economic or financial means to abuse the individual. Withholding funds, refusing to pay for or purchase necessary items for the foreign national (i.e., food, clothing, personal hygiene items), and not allowing them access to bank accounts are common ways of abusing the individual. Examples of other ways finances can be used to abuse an individual include: forcing the foreign national to provide money to the abuser by taking loans or obtaining credit cards in the foreign national’s name; getting funds from relatives; preventing the foreign national from working or taking the wages earned if the foreign national is working; or forced accounting for any monies given to the foreign national. All of these, and others, are used to leave the foreign national without any resources to try to escape or alert the authorities about the person committing the abuse.

8.9  Identifying “Extreme Cruelty” The federal law and the USCIS have not defined what is meant by “extreme cruelty” which leaves the door open for the abused individual to present all of the abuses that have been heaped upon them. It is important for the forensic psychologist to delve into the situation of the foreign national to uncover what they have experienced. Once it has been determined that the individual has suffered abuse, the next phase is to determine what, if any, are the effects on the foreign national. The foreign national may have suffered a number of psychological injuries as a result of the abuse. First, determine if there were any pre-existing psychological disorders. If yes, how were they affected by the abusive behavior, if at all? There are numerous psychological disorders that the foreign national may suffer as a result of the abuse. Anxiety disorders, which can include panic attacks and post-­ traumatic stress disorder, mood disorders, suicidal ideation and suicide attempts, and somatic symptoms are some of the disorders that the forensic psychologist can assess for, diagnose and discuss in the evaluation report. A discussion on post-­ traumatic stress disorder in forensic assessments can be found in the chapter on Asylum. In conducting the investigation and assessment, the forensic psychologist should ask for and obtain evidence of the abuse. Documents to look for and include in the report, if available, may be: police records (reports, 911 recordings, statements from police officers/detectives with knowledge of the abusive situation); court-issued protective orders; photographs, hospital/medical records; psychologist records/

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statement; clergy or spiritual advisor records or statements; school records; shelter records; writings between the victim and the abuser (letters, emails, texts, etc.); statements from others that may have knowledge of the abuse (i.e., neighbors, relatives); and any other evidence that may be available.

8.10  Intimate Partner Violence Intimate partner violence (IPV) (also, and formerly, referred to as battered woman syndrome—BWS) is a means of gaining control and having power over another for the purpose of having the abused individual comply with the demands of the abuser.15 According to the U.S. Center for Disease Control, more than 22% of women in the United States have been victims of IPV.16 BWS, now IPV, has been recognized and researched by the psychological and medical communities since 1977.17 IPV occurs when one intimate partner uses “physical, verbal/symbolic, or sexual acts that cause—or have reasonable potential to cause—harm to an intimate partner.”18 By using aversive psychological and/or physical tactics on an intimate partner, together with periods of removal of the aversive stimuli and instead providing pleasurable and/or loving behaviors, the abuse creates a “psychological dependency, learned helplessness, or other deleterious conditions” for the abused.19 The abuser’s pattern of behaviors is neither impulsive nor “out of control,” but is purposeful and instrumental in order to gain compliance from or control over the victim.20 It has been found that a consistent link to IPV is women who are younger in age and of low income.21 For example, an abuser will commit violent acts upon his22 intimate partner: “acts of physical aggression—such as slapping, hitting, kicking, and beating; psy Walker, L., (2006). Battered Woman Syndrome: Empirical Findings. Ann. N.Y. Acad. Sci. 1087: 142–157. 16  Center for Disease Control (2014) National Data on Intimate Partner Violence, Sexual Violence, and Stalking Survey. https://www.cdc.gov/violenceprevention/pdf/NISVS-Fact-Sheet-2014.pdf. 17  Walker, L., (2017). The battered woman syndrome, fourth edition. Springer Publishing Company, LLC. New York, NY., at page 29. 18  18Heyman, R. E., Slep, A. S., & Foran, H. M. (2015). Enhanced definitions of intimate partner violence for DSM-5 and ICD-11 may promote improved screening and treatment. Family Process, 54(1), 64–81. https://doi.org./10.1111/famp.12121. 19  Walker (2006), ibid. 20  Dalton, C., G.J. Matthews, G.J., Matthews, K.W., Drozd, L.M., and Wong, F.Q.F. (2006) Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide. National Council of Juvenile and Family Court Judges. Reno. NV. 21  Krug (2002) ibid at pg 97. 22  Male terms are used for the aggressor since most reported cases and studies in this area are of males subjecting females to abusive behaviors. Walker (2017), ibid. Women are more often emotionally involved with and economically dependent on those who victimize them. See Krug (2002) at footnote 7, below. 15

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chological abuse—such as intimidation, constant belittling, and humiliating; forced intercourse and other forms of sexual coercion; various controlling behaviors—such as isolating a person from their family and friends, monitoring their movements, and restricting their access to information or assistance.”23 In many relationships, various types, not just one, of these abusive behaviors exist.24 After the violence has ended, the aggressor partner will apologize, promise to change behaviors, give gifts, offer compliments, provide contact comfort, sexual satisfaction, and more. There are a number of varied factors which keep women in relationships where they are subjected to regular abusive behaviors from their intimate partner. Some of the common factors include “fear of retribution, a lack of alternative means of economic support, concern for the children, emotional dependence, a lack of support from family and friends, and an abiding hope that the man will change.”25 Researchers have determined that IPV is “not a unitary phenomenon and that types of domestic violence can be differentiated with respect to partner dynamics, context, and consequences. Four patterns of violence can be distinguished: coercive controlling violence, violent resistance, situational couple violence, and separation-­ instigated violence.”26 Coercive controlling violence involves behaviors such as “intimidation; emotional abuse; isolation; minimizing, denying, and blaming; use of children; asserting male privilege; economic abuse; and coercion and threats (Pence & Paymar, 1993). Abusers do not necessarily use all of these tactics, but they do use a combination of the ones that they feel are most likely to work for them. Because these nonviolent control tactics may be effective without the use of violence (especially if there has been a history of violence in the past), coercive controlling violence does not necessarily manifest itself in high levels of violence.”27 However, a “pattern of emotionally abusive intimidation, coercion, and control coupled with physical violence against partners” is frequently observed.28 It is frequently reported that IPV victims subjected to coercive controlling violence experience the psychological abuse as being worse than the physical.29 Victims suffer psychological effects such as fear and anxiety, loss of self-esteem, depression, and post-traumatic stress.30 “Depression is considered by many to be the most prevalent psychological effect of coercive controlling violence.”31  Krug EG et al. (2002). Violence by intimate partners. In World report on violence and health. Pg 89. World Health Organization, Geneva. 24  Krug (2002), ibid at pg 90. 25  Krog (2002), ibid at pg 96. 26  Kelly, J.B. and Johnson, M.P., (2008). Differentiation among types of intimate partner violence: Research update and implications for interventions. Family Court Review. Vol. 46 No. 3, pgs 476–499. 27  Kelly (2008) ibid at pg 481. 28  Kelly (2008) ibid at pg 478. 29  Kelly (2008) ibid at pg 483. 30  Ibid.. 31  Kelly (2008) ibid at pg 484. 23

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Some of those individuals subjected to IPV become victim/perpetrators. For instance, a woman in an abusive relationship may strike back at her abuser and injuring or killing him. Others may commit acts they normally would not commit but for the coercive actions of the abuser. It is commonly reported by those who have been subjected to IPV that the abusive and intimidating behaviors were directly related to their criminal acts.32 The effect of being subjected to IPV is thought of as a subset of post-traumatic stress disorder.33 While the DSM-5 does not have a specific IPV disorder, it does have a code for “other conditions that may be a focus of clinical attention”: 995.81—Spouse or Partner Violence, Physical Non-accidental acts of physical force that result, or have reasonable potential to result, in physical harm to an intimate partner or that evoke significant fear in the partner have occurred. 995.82—Spouse or Partner Abuse, Verbal Non-accidental verbal or symbolic acts by one partner that result, or have reasonable potential to result, in significant harm to the other partner.34

“Intimate partner violence may result in various psychological effects, including short-term effects such as shock, denial, withdrawal, confusion, numbing, fear, and depression; and longer-term effects such as fear, anxiety, fatigue, sleeplessness, eating disorders, and feelings of loss, betrayal and hopelessness.”35 It has also been associated with cognitive impairment and functioning.36 “The research has now demonstrated that BWS has seven groups of criteria that have been tested scientifically and can be said to identify the syndrome. The first four groups of symptoms are the same as for the DSM-5 (APA, 2013) criteria for PTSD, while the additional three criteria groups are present in victims of intimate partner violence (IPV). They are: 1. Intrusive recollections of the trauma event(s) 2. Hyperarousal and high levels of anxiety 3. Avoidance behavior and emotional numbing usually expressed as 4. depression, dissociation, minimization, repression, and denial 5. Negative alterations in mood and cognition 6. Disrupted interpersonal relationships from batterer’s power and  Loring, M. T., & Beaudoin, P. (2000). Battered Women as Coerced Victim-Perpetrators. Journal of Emotional Abuse, 2(1), 3–14. 33  Babcock, J.C., Roseman, A., Green, C.E. and Ross, J.M., (2008). Intimate Partner Abuse and PTSD Symptomatology: Examining Mediators and Moderators of the Abuse–Trauma Link. Journal of Family Psychology, Vol. 22, No. 6, 809–818. 34  APA (2013). DSM-5. American Psychiatric Association. Arlington, VA. 35  Sana Loue, S., (2000) Intimate Partner Violence: Bridging the Gap between Law and Science. 21 J. Legal Med. 1, 34. 36  Twamley EW, Allard CB, Thorp SR, Norman SB, Hami Cissell S, Hughes Berardi K, Grimes EM, and Stein MB. (2009). Cognitive impairment and functioning in PTSD related to intimate partner violence. J Int Neuropsychol Soc. 15(6):879–87. 32

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7. control measures 8. Body image distortion and/or somatic or physical complaints 9. Sexual intimacy issues”.37 It is important to be wary that despite the strong focus of the decision-maker to look for a DSM diagnosis as the main factor in determining whether an emotional trauma was experienced, the subject may not fit neatly into the criteria. It is important for the forensic psychologist to be prepared to defend a finding of emotional trauma which indicates extreme cruelty with current and convincing supportive research.

8.11  A  ssessing the Victim of Domestic Abuse for Battery or Extreme Cruelty The psychosocial assessment of victims of domestic abuse has a limited focus and the forensic psychologist must keep in mind the objective of the evaluation. The goal is to determine the psychological functioning of the VAWA applicant as it may apply to the alleged abuse. Remember, a psychological or psychosocial evaluation cannot determine whether or not the alleged domestic violence actually occurred or the identity of the perpetrator. Information regarding the acts of battery or extreme cruelty will be obtained through third-party sources including the forensic interview, interviews with witnesses, hospital records, police reports, and any other available evidence. The evaluation would explore whether the VAWA applicant suffered some type of trauma, the extent of that trauma and whether the trauma is causally related to exposure to abusive behavior. Psychological trauma, unlike other forms, does not leave any physical traces and is therefore more difficult to determine, let alone causally relate to the victimization. Jordan, Campbell, and Follingstad (2010) found that in order to be defined as abuse it should be shown that the psychologically abusive actions exhibit “(a) some type of objective consensus that the action in and of itself constitutes abuse; (b) some determination that the initiator intended maltreatment; (c) the perception of the recipient (that would include an idiosyncratic analysis incorporating context and relationship history); and (d) a determination that the action possesses the potential to psychologically harm the recipient.”38 A difficulty faced by the forensic psychologist in assessing for psychological trauma is that the subject may be appearing for the evaluation long after leaving the abusive situation. In many cases, once the subject feels safely removed from the abuser and out of the abusive situation the psychological profile will change, as  Walker (2007) ibid at pg 50.  Jordan, C. E., Campbell, R., & Follingstad, D. (2010). Violence and women’s mental health: The impact of physical, sexual, and psychological aggression. Annual Review of Clinical Psychology, 6, 607–628. https://doi.org/10.1146/annurev-clinpsy-090209-151437.

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well. For some, the emotional trauma reduces or disappears, for others it transforms into other responses which may not appear to be related to the abuse (i.e., anger, generalized anxiety). Most tools used for assessing trauma and emotional impact are designed to measure current levels of functioning and thus will provide an inaccurate picture of the psychology injury suffered at the time of the abuse. There are numerous assessment tools available but the forensic psychologist must use caution in choosing which tools to include since many (if not most) of the available assessments have not been thoroughly validated and/or have not been validated for immigrant populations. A review of some of the available assessments can be found in the chapter on Asylum cases. Aside from the basic forensic interview, the gold standard for assessing post-­ traumatic stress disorder is the CAPS-5.39 It is available for free on the internet from the Veterans Administration.40 While this is a powerful tool, it has not been standardized for immigrant populations and is not available in different languages and so should be used with caution. An advantage in using the CAPS-5 is that it has been updated to meet the DSM-5 criteria for the disorder and will thus be looked upon more favorably by the decision-maker in an immigration proceeding.

 Weathers, F. W., Blake, D. D., Schnurr, P. P., Kaloupek, D. G., Marx, B. P., & Keane, T. M. (2015). The Clinician-Administered PTSD Scale for DSM-5 (CAPS-5)—Past Week [Measurement instrument]. 40  https://www.ptsd.va.gov/professional/assessment/documents/CAPS_5_Past_Week.pdf. 39

Chapter 9

Asylum, Withholding of Removal, and the Convention Against Torture Maria had decided to leave her family and home in Guatemala and was traveling north with a group of thousands of others hoping to reach the United States, eager to escape the violence of their country and live in safety. Maria was the oldest daughter of three to a poor family of field workers. A year ago Maria had been kidnapped and raped by members of a gang who had insisted that her father pay them “cuotas”(protection money). Maria reported the rape to the local authorities and positively identified at least one of the gang members. The police did not arrest anyone. A few days after reporting the crime, gang members arrived at Maria’s home and shot multiple bullets through the window and walls. Maria’s youngest sister was killed. Maria’s father went to the police and was told he should remove his family to the home of some relatives in a nearby town. Soon after, members of the gang appeared at that relatives’ home and again raped Maria and threatened to return again to kill her if they didn’t receive double their cuotas. Maria’s family fled to another village and Maria joined the caravan heading north. Jacques was a Muslim living in a small African nation. Jacques was homosexual and secretly began a relationship with another man. When one of Jacques’ cousins stumbled upon him embracing the other man the cousin snapped a picture with his cell phone camera. The next day Jacques was called to his uncle’s house to help with a family emergency. When he arrived he was escorted into the backyard where he was surrounded by a group of approximately fifty people comprised of family members and villagers. For five hours they taunted him, hit him, threatened to cut off his penis, and threatened to kill him. He was handed an open beer can and someone snapped a photo of him holding it (it is forbidden for Muslims to drink alcohol). Finally, Jacques was released with the warning that if he ever engaged in acts with another man again he would be slowly killed. He knew he couldn’t report the incident to the police since it is local custom that the police do not enforce the law when the crimes are against homosexuals. The next day the man that Jacques had been with was found murdered in a field near the village. Jacques packed his things, including his passport and left the village. Shortly thereafter he boarded a plane and headed to JFK airport in New York City, U.S.A. hoping to seek asylum.

In the past few years, we have seen a huge influx of people coming from the Middle East and from Central America seeking asylum in the United States because they claim to have suffered persecution, or fear that they will suffer persecution, due to their race, religion, nationality, membership in a particular social group, or political opinion. Their government is either the cause of their suffering, fails to do anything about the problem or instigates the persecution. In 1980, the U.S. Congress passed the Refugee Act which brought the United States on par with other countries in the world with the 1967 United Nations

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Protocol Relating to the Status of Refugees. Parenthetically, the United States signed onto the UN protocol in 1968. That statute included the international definition of the term “refugee,” providing the President with the authority to determine the number of refugees to be admitted into the country as asylees. Specifically, the statute states, “...(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...”1 An asylee is an individual who meets the definition of a refugee and who is already in the United States or is seeking admission at a port of entry.2 As you can see, the definition of a refugee is almost identical to that of an asylee. Both applications are determined under the same legal standard that requires persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The only difference between a refugee and the asylee is the location of the individual at the time he or she requests protection from the United States. If the individual is outside the United States when the request is made, then they are considered a refugee. If the person is inside the United States when the request is made, then they are considered an asylee. Both seek asylum but the distinction between the two is important because there are different procedural requirements based upon the person’s designation as refugee or asylee. There are also different admission ceilings—the number of refugee admissions is determined annually by the President while there is no limit on the number of asylum applications granted. The granting of an asylum application, either to a refugee or asylee, allows the foreign national to remain in the United States and grants asylum status to members of the asylee’s family who are in the United States and were included in the asylum application. Asylees are permitted to petition on behalf of eligible family members to be brought into the United States and can also, eventually, apply for legal permanent residence and citizenship. There are two pathways for the asylee to apply for asylum under the laws of the United States: “Affirmative asylum processing with U.S. Citizenship and Immigration Service”; and “Defensive asylum processing with the Executive Office for Immigration Review.” In both scenarios, the underlying substantive elements for being granted asylum must be met; however, they are procedurally very different.

 Public Law 96–212 (1980).   USCIS (2015). Refugees & Asylum. https://www.uscis.gov/humanitarian/refugees-asylum. Accessed 20 Oct 2019. 1 2

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9.1  Affirmative Asylum Processing with USCIS Regardless of how the asylee entered the United States, so long as the foreign national is physically present in the United States, they can apply for asylum. The application must be made within 1 year of the date of last arrival. Rarely are affirmative asylum applicants detained by U.S.  Immigration and Customs Enforcement (ICE) and are permitted to live in the United States while the application is pending. After the application is filed, the asylee will be given an interview by an officer with the USCIS Asylum Division. The asylee is permitted to bring an attorney or approved representative to the interview. That officer, in a non-adversarial interview with the asylee and any family members who are part of the application, determines if the applicant meets the definition of an asylee, is credible and is not barred from obtaining asylum. Based upon the interview, the asylum officer can warrant a grant of asylum as a matter of discretion. Individuals may be barred from a grant of asylum for previously committing certain crimes, posing a national security threat, engaging in the persecution of others, or firmly resettling in another country before coming to the United States. Once the asylum officer makes a determination, it is then sent to the supervisory who reviews the decision to ensure it is consistent with the law. Depending on the case, the supervisory may refer the decision to the asylum division staff at USCIS headquarters for additional review. If the foreign national is found to be ineligible for asylum and does not have legal immigration status, they will be served a Notice to Appear before an Immigration Judge at the Executive Office for Immigration Review (EOIR). The foreign national can remain in the United States while the application is pending with the Immigration Judge.

9.2  Defensive Asylum Processing with EOIR A defensive application for asylum occurs when a request for asylum is made in opposition to a removal proceeding from the United States that is pending in the immigration court with the Executive Office for Immigration Review. Foreign nationals can be placed in the defensive asylum process in a number of ways: If, at the end of the affirmative asylum process, the foreign national is determined to be ineligible for asylum they can be referred to an Immigration Judge by USCIS; or if the foreign national is apprehended for being in the United States or port of entry without proper legal documents or in violation of their immigration status; or the foreign national was caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and if it were found by an asylum officer that the foreign national had a credible fear of persecution or torture.

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The defensive asylum case is adversarial in nature. It is heard before an Immigration Judge with arguments and evidence presented by both the foreign national (or his or her attorney) and an attorney from Immigration and Customs Enforcement (ICE). If, after hearing the case, the Immigration Judge determines that the foreign national is eligible for asylum, then the order will be granted. If not, the Immigration Judge will determine whether any other forms of relief from removal are applicable. If there are no other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

9.3  Withholding of Removal Relief Under the INA A foreign national may, during a regular removal proceeding before an EOIR Immigration Judge, make a claim for withholding of removal under the INA. The foreign national must show that it more likely than not (again, the preponderance of evidence standard) that their life or freedom would be threatened by reason of their race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal. While an order granting relief from removal will prohibit the foreign national from being sent back to a country where their life or safety is threatened, it does not prevent the government from removing the foreign national to a third country where a foreign national’s life or safety would not be threatened. A granting of withholding of removal under the INA does not allow for the foreign national’s eligible family members within the United States to join in the application or for the foreign national to petition on behalf of family members abroad to enter the United States. The withholding of removal also does not permit the foreign national to apply for permanent residence or citizenship. Decisions by the Immigration Judge are appealable to the BIA and, if the foreign national receives an unfavorable ruling, he or she may appeal to the federal court of appeals.

9.4  Convention Against Torture Protections Convention Against Torture Protections (CAT) are provided for under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United States is a signatory. Under CAT, the United States is obligated not to expel, return, or extradite a foreign national “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This international treaty is intended to protect aliens from being returned to countries where they would more likely than not be

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s­ ubjected to torture. In the United States, this treaty has been codified into law at 8 C.F.R. § 208—Procedures for Asylum and Withholding Removal. Under CAT, torture is defined as: “...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”3

Under 8 Code of Federal Regulations (CFR) § 208.18(a), for an act to constitute torture it must satisfy each of the following five elements: 1. the act must cause severe physical or mental pain or suffering. 2. the act must be intentionally inflicted. 3. the act must be inflicted for a proscribed purpose. 4. the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim. 5. the act cannot arise from lawful sanctions. The CAT applicant must be able to show to the Immigration Judge that it is more likely than not that he or she will be tortured if forced to return to their country of origin—basically the preponderance of evidence standard. CAT protection may even be granted to criminals, terrorists, and persecutors, if they can show that removal to the country of origin would result in torture (this would not include lawful incarceration. Also, see Sect. 9.3.2, below). Unlike refugee, asylee, or withholding of removal applications, the CAT applicant does not need to establish that the torture is based upon one of the protected classifications (race, religion, nationality, membership in a particular social group, or political opinion). The CAT applicant must present evidence of the possibility of future torture including, but not limited to: 1. evidence of past torture inflicted upon the applicant 2. evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured 3. evidence of gross, flagrant, or mass violations of human rights within the country of removal, where applicable 4. other relevant information regarding conditions in the country of removal Also unlike refugee or asylee grantees, CAT recipients: can be detained, where appropriate; can be removed to a third country where they would not be tortured;

3  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (1984) United Nations. General Assembly. Article 1.1. http://www.un.org/documents/ga/res/39/ a39r046.htm

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cannot become lawful permanent residents; or, petition for family members to come to the United States. CAT claims are adjudicated by EOIR immigration judges within regular removal proceedings. Immigration Judge decisions may be appealed to the BIA. If the alien disagrees with the BIA’s ruling, the alien may file an appeal with the federal courts of appeal.

9.5  W  ithholding of Removal (Under CAT) and Deferral of Removal Under CAT, two types of protections are afforded to those escaping torture in their country of origin: “Withholding of Removal under CAT” and “Deferral of Removal.”

Withholding of Removal Under CAT Withholding of Removal under CAT prohibits removing aliens to a specific country if it is more likely than not they would be faced with torture upon their return. It is a more secure form of protection than deferral of removal. Withholding of Removal under CAT is a temporary measure that can only be terminated if the DHS can establish that returning the foreign national to that country would not likely result in him or her being tortured.

Deferral of Removal Deferral of Removal is a temporary measure used to keep foreign nationals from being returned to their country of origin and subject to torture when they are not eligible for any other type of relief, such as criminals, terrorists, and persecutors. If the United States government receives assurances that the ineligible foreign national is unlikely to be tortured, then the Deferral of Removal can be immediately terminated and the individual returned to their country of origin.

9.6  C  onducting Forensic Psychological Assessments in These Types of Cases This section must begin with a cautionary advisory. Many of these victims suffer from severe psychological and emotion trauma due to the horrors they were forced to endure, including torture and rape. Working with these individuals, clinically or

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forensically, requires a good deal of professional training and experience ­specifically in post-traumatic and complex post-traumatic stress disorder and the impact it has on the victim. This is true, not just for the accuracy of the forensic assessment, but for the effect that any intervention may have on the individual. Further, as with most forensic assessments conducted in immigration cases, particular care must be taken to account for cultural differences, distinctions, and language barriers (even those foreign nationals who may have a good command of the English language may not understand some of the cultural meaning behind certain phrases or words). It is strongly recommended that any forensic psychologist interested in pursuing these types of assessments become familiar with this highly specialized area by attending training courses and becoming familiar with the most recent research in this area in order to achieve a sufficient level of professional competence. Additionally, the forensic psychologist must be prepared for the intense emotional reactions that may arise from hearing the accounts of the horrific things that victims have experienced and will describe during an assessment. The forensic psychologist must not only be emotionally prepared to handle victim’s accounts of brutality but must be able to carefully listen to and observe the victim in order to conduct a proper assessment. The forensic psychologist is being asked to judge the veracity of the foreign national’s claim of torture—the emotional reaction of the evaluator cannot interfere with the evaluation. Pope (2013) highlights some of the common reactions of clinicians, including: “1) an almost phobic reaction to the horrors endured by the torture victim, so that the clinician consciously or unconsciously attempts to avoid hearing the most painful aspects 2) an almost voyeuristic or obsessive personal curiosity, resulting in the clinician pressing for and focusing on the most graphic details 3) a tendency to see the person solely as a ‘torture victim,’ with the label obscuring all personal or human characteristics that the clinician does not associate with a particular stereotype of torture victim 4) a tendency for the clinician’s political beliefs or personal agenda to interfere with the ability to listen carefully and accurately to the person who has been tortured 5) a fear that the clinician may be at risk for negative consequences in some way from working with a torture survivor who is the target of widespread prejudice in the clinician’s home country or who may still be hunted by those who perpetrated the torture 6) some form of survivor guilt.”4

One difficulty in working with survivors of torture is gaining their trust and confidence. Many times a psychologist or doctor (or someone claiming to be one) would have been in the room while the torture was being conducted or have been the torturer themselves. Simply being in the same room with the forensic psychologist may cause distress for the foreign national even if they are informed that the psychologist is present to help them in their case. 4  Pope, K.S. (2013). Psychological Assessment of Torture Survivors: Essential Steps, Avoidable Errors, and Helpful Resources. International Journal of Law and Psychiatry, vol. 35(5–6), pages 418–426, citing: Pope, K. S., & Garcia-Peltoniemi, R. E. (1991). Responding to victims of torture: Clinical issues, professional responsibilities, and useful resources. Professional Psychology: Research and Practice, 22(4), 269–276. http://doi.org/10.1037/0735-7028.22.4.269.

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Checking one’s own emotional response does not mean taking a cold, heartless approach. In fact, maintaining total neutrality in this instance may prove problematic in terms of working with the foreign national who has suffered torture. Many of these individuals, experiencing their own emotional distress and distrust, will not be willing to be open about their experiences based upon their past treatment by “authorities,” “doctors,” and “psychologists.” The forensic psychologist must strive to make the individual feel safe and cared for. This does not mean that your evaluation and report will necessarily reflect that the individual is being honest in their representation (there are certainly a good number of asylum applicants that exaggerate or even fabricate experiences of torture) but you do need to reassure the individual that you were retained to help them with the asylum application and not to mistreat them.

What’s a Forensic Psychologist to Do? Not everyone who has been the victim of torture will suffer some type of diagnosable psychological disorder. Those who have been subjected to the same torture methods (i.e., isolative detention) will not necessarily suffer the same effects. Many victims of torture will develop some type of mental illness such as major depression or post-traumatic stress disorder. It is not uncommon for torture victims to also suffer from chronic pain,5 traumatic brain injury (TBI),6 and other difficulties. Sometimes the psychological effects do not surface until long after the torture has ended. The forensic psychologist must first understand the nature and purpose of the use of torture. Torture has been described as “a systemic, intergroup, and institutional trauma enacted by a torturer on behalf of a larger, more powerful entity.”7 Many times the “entity” conducting the torture will claim that the torture is necessary in order to obtain important information. This is usually only a means of attempting to legitimize the use of torture. Most victims of torture do not have any useful or important information to give, if they ever had any information, at all. The true nature of torture is to dehumanize the individual, dismantle the victim’s identity and make them feel a loss of personal control with the purpose of creating fear and discouraging a sense of community in order for the “entity” to maintain control of the population.

5  de C Williams, A.C. and van der Merwe, J. (2013). The psychological impact of torture. British journal of pain. 7(2), 101–106. https://doi.org/10.1177/2049463713483596. 6  Jacobs, U., & Iacopino, V. (2001). Torture and its consequences: A challenge to clinical neuropsychology. Professional Psychology: Research and Practice, 32(5), 458–464. https://doi. org/10.1037/0735-7028.32.5.458. 7  Kira, I. A. (2017). A critical outlook at torture definition, structure, dynamics, and interventions. Peace and Conflict: Journal of Peace Psychology, 23(3), 328–333. https://doi.org/10.1037/ pac0000243.

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There are various torture techniques to which the foreign national may have been subjected. The use of physical tortures (i.e., hitting, whipping, punching, drowning, sexual assault and rape, exposure to extreme heat or cold) and its effects (i.e., scarring, internal organ damage) are more easily assessed than the effects of some psychological tortures. There are also psychological effects resulting from the physical torture, even in the absence of intended psychological torture, which should not be ignored. Psychological tortures are more difficult to detect because they mostly do not leave physical traces. This makes asylum claims more difficult to prove and increases the importance of the forensic psychologist’s assessment and evaluation. Psychological tortures can include: –– Isolation: Isolated confinement has been shown to be “effective in disrupting a person’s psychological equilibrium, which is the reason for its widespread use as a form of psychological assault a key purpose of which is to weaken a person’s will to resist and to make his or her personality more malleable.”8 “The initial response to isolation is a natural anxiety plus introspection, a concern with the past and a direct engagement with the immediate environment followed by bursts of restlessness, pacing up and down, yelling and banging followed by sleep disturbance, difficultly in maintaining attention, daydreaming, a tendency to withdrawal, dissociation from the situation, and a physical and psychological regression.”9 Those subjected to isolation who were psychologically healthy prior to the isolation experience can recover once the isolation has ended but those who were already experiencing psychological difficulties may suffer from more severe and longer-term effects. Victims may be forced into tiny cells that do not permit the individual to lay down; they may be forced to remain in uncomfortable positions for long periods of time (i.e., standing, kneeling, squatting). –– Sensory deprivation or over-stimulation: Forms of sensory deprivation may include: blindfolding; being left in darkness; auditory deprivation; total sensory deprivation. Forms of over-stimulation may include: constant exposure to bright light or sounds; drug-induced hypersensitivity; days long interrogations; being placed in a small cell with many other prisoners, pressed up against one another and does not permit movement. –– Sleep deprivation. –– Humiliation and degradation: Examples of humiliation include: forced nudity; nudity in public places; sexual and cultural humiliations (such as nakedness in front of a person of the opposite sex and touching of exposed body parts). –– Threats of injury or death to the individual, members of the individual’s family or friends; false accusations. –– Forced observation of torture or murder of a loved one or another. 8  Leach J. (2016). Psychological factors in exceptional, extreme and torturous environments. Extreme physiology & medicine, 5, 7. https://doi.org/10.1186/s13728-016-0048-y. 9  Ibid.

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–– Forced choices: having to choose a bad fate (i.e., execution, torture) for one of the victims children. –– Mock executions. –– Deprivation of physical needs: withholding of food and/or water; withholding medical care; prolonged periods of exposure to heat or cold. In addition to the actual torture experienced by the individual, trauma from other aspects of the person’s life may also contribute to their psychological well-being including: living in poverty; exile; leaving family and friends behind; travel experiences in order to reach the United States (i.e., having to travel in an enclosed spaces; assaults and robberies along the way); experiences during the asylum process; and more.

9.7  Conducting the Interview and Assessments For the most part there will be little or no evidence for the asylum seeker to present which proves that they were a victim of torture or systematic torture. It is up to you, the forensic psychologist, to establish whether the individual experienced the ­conduct and trauma they are claiming. Not an easy task. Making matters even more difficult are the delicacies and susceptibilities of the human brain which could cause a person to not remember specific details of a traumatic event. For example, consider for a moment Maria, the female asylee (above) who escaped her country after being repeatedly raped by gang members. When questioned she may have a difficult time remembering all of the minute details of the assault due to PTSD. She may relay the story in a dispassionate or flat manner. The judge may believe she is making the story up because she cannot remember details or expressed little or no emotion in her telling of this horrific event in her life. The forensic psychologist, if making a professional judgment that the woman does indeed suffer from PTSD as a result of the rapes, can explain to the court how a victim with PTSD may not remember the details of the attacks. Research has shown that the victim does not have to suffer structural brain damage (i.e., she was hit in the head during the attack) to have deficits in memory, the psychological stressors alone can cause such blanks in memory.10

 Arrigo, J. M., & Pezdek, K. (1997). Lessons from the study of psychogenic amnesia. Current Directions in Psychological Science, 6(5), 148–152. http://doi.org/10.1111/1467-8721. ep10772916 Walker, L. E. A. (2017). Trauma practice: Historical overview. In S. N. Gold (Ed.), APA handbooks in psychology®. APA handbook of trauma psychology: Trauma practice (pp. 1–27). Washington, DC, U.S.: American Psychological Association. https://doi. org/10.1037/0000020-001 Mechanic, M. B., Resick, P. A., & Griffin, M. G. (1998). A comparison of normal forgetting, psychopathology, and information-processing models of reported amnesia for recent sexual trauma. Journal of Consulting and Clinical Psychology, 66(6), 948–957. https://doi. org/10.1037/0022-006X.66.6.948.

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As is suggested for all immigration evaluations, multiple sessions should be arranged for the clinical interview. In the case of those seeking asylum, it may be even more important to do so in order to establish a good relationship with the individual so as to make them feel safe. This will allow them, during the assessment, to reveal details that they otherwise might find difficult, if not impossible, to repeat out loud. Keep in mind that the asylee will have to tell their story multiple times to multiple people in multiple settings. Most likely the asylee has told all or part of their story to their attorney before even meeting the forensic psychologist. They will then tell it to the forensic psychologist under the pressure of the assessment. Then again in a courtroom under the scrutiny of opposing counsel whose job it is to destroy the asylees testimony and make them out to be a liar. It may be best to have the first interview cover all of the background information about the asylee and save discussing details of the torture for the next interview after a rapport has been established. Questions such as: where they were born; places they have lived; their upbringing; social and economic status; education; family makeup; family life; experiences before the trauma; life experiences after the trauma; relationships; everyday functioning; lifetime health; family/generational health; mental health history; family mental health history; mediations; substance abuse; alcohol abuse; and the like. It is also recommended that a structured interview such as the Structured Clinical Interview for DSM-5 (SCID-5) based upon the Diagnostic and Statistical Manual of Mental Disorders (DSM–5) be employed to present an evidenced-based psychological diagnosis. A clinical interview by itself has low predictive validity. Structured diagnostic instruments, having a higher reliability rate than clinician-based diagnostic decision-making,11 are looked upon more favorably by the courts.

9.8  Persecution or a Well-Founded Fear of Persecution By conducting a thorough forensic interview and performing validated assessments, the forensic psychologist will be asked to provide the court with an opinion regarding a number of issues. First, is it believed, based upon the assessments and available evidence, that the asylum applicant is being truthful in his or her claim or claims about harm committed, or feared to be committed, upon them? Ultimately, it is the decision of the Judge or officer whether the asylee is credible; however, the forensic psychologist will present the findings, analysis, and expert opinion in order to aid the trier of fact/law in reaching a conclusion. Second, what is the nature and extent of any psychological injury, if any? This will be explored in the next section.  Samuel, D. B., Sanislow, C. A., Hopwood, C. J., Shea, M. T., Skodol, A. E., Morey, L. C., … Grilo, C. M. (2013). Convergent and incremental predictive validity of clinician, self-report, and structured interview diagnoses for personality disorders over 5 years. Journal of Consulting and Clinical Psychology, 81(4), 650–659. https://doi.org/10.1037/a0032813.

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The law requires that the asylee/refugee prove that they have a “well-founded fear of being persecuted.” Fear is defined as an apprehension or awareness of danger. In the scientific world, fear is defined as a “motivational state aroused by specific stimuli that give rise to defensive behavior or escape.”12 The USCIS recognizes that an “…individual will be found to have a credible fear of persecution if he or she establishes that there is a ‘significant possibility’ that he or she could establish in a full hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.”13 The U.S. Supreme Court has held that “…to show a ‘well-founded fear of persecution,’ an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country…”14 This means that the standard of proof for substantiating a “well-founded fear” in an asylum case is less than the preponderance of evidence standard. “One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.”15 The Court cited as an example, “[i]n a country where every tenth adult male is put to death or sent to a labor camp, it would be only too apparent that anyone who has managed to escape from the country in question will have ‘well-founded fear of being persecuted’ upon his eventual return.”16 In order to establish a well-founded fear of persecution, the asylee/refugee must show that he or she has both a subjective and objective fear of persecution.17 The USCIS Officer Training Manual, citing the UNHCR Handbook, states that: “… when evaluating whether an applicant’s fear is subjective, it is important to keep in mind the applicant’s background, personal beliefs, sensitivities, societal status, and personality: since psychological reactions of different individuals may not be the same in identical situations. One person may have strong political or religious convictions, the disregard of which would make life intolerable; another may have no such strong convictions. One person may make an impulsive decision to escape, another may carefully plan his departure.”18

 Steimer T. (2002). The biology of fear- and anxiety-related behaviors. Dialogues in clinical neuroscience, 4(3), 231–249. 13  USCIS (2018). How Is an Individual Found to Have a Credible Fear of Persecution? https:// www.uscis.gov/faq-page/credible-fear-faq#t12831n40090 14  INS v. Cardoza-Fonseca, 480 U.S. 421, 431(1987). 15  Ibid. 16  Ibid. 17  UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, para. 38 (2011). USCIS (2019). RAIO Directorate—Officer Training: Well-founded fear. https://www.uscis. gov/sites/default/files/files/nativedocuments/Well_Founded_Fear_LP_RAIO.pdf 18  USCIS (2019). RAIO Directorate—Officer Training: Well-founded fear. https://www.uscis.gov/ sites/default/files/files/nativedocuments/Well_Founded_Fear_LP_RAIO.pdf 12

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In making its determination of credible or well-founded fear, “… the Court may base a credibility determination on the demeanor, candor, or responsiveness of the applicant, the inherent plausibility of the applicant’s account, the consistency between the applicant’s written and oral statements (whenever made and whether or not made under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record, and any inaccuracies or falsehoods in such statements, or any other relevant factor. INA §§ 208(b)(1)(B)(iii), 241(b)(3)(C).”19 [emphasis added]. It has been widely recognized that those individuals exposed to trauma may suffer negative effects to their mental health and memory.20 Memory loss, flat affect, emotional detachment, agitation and other symptoms of trauma, together with a victim’s reluctance under certain circumstances (i.e., sexual abuse or rape) could mean that an asylum seeker’s presentation to the Court or officer may be perceived as “emotionally incongruent,” factually devoid or inconsistent. When assessing for trauma, some of the more commonly used tools are the Hopkins Symptom Checklist-25 (HSCL-25) and the Harvard Trauma Questionnaire-5 (HTQ-5). The HSCL-25, though in use since the 1950s, has not been updated to the current diagnostic criteria of the DSM-5 or ICD-11. The HTQ-5 has been updated, is considered a valid measurement,21 and is available for different cultures and in languages. Of course, there is no “one size fits all” assessment or protocol that will be right for every individual. The forensic psychologist must become familiar with the available valid and reliable tools that are appropriate for the asylee and the circumstances surrounding the asylees situation.

 EIOR (2014) Immigration Judge’s Long Form Boilerplate Language with Highlights https:// www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/long-form-boilerplate-with-highlights. pdf 20  Regev, S., & Slonim-Nevo, V. (2019). Trauma and mental health in Darfuri asylum seekers: The effect of trauma type and the mediating role of interpersonal sensitivity. Journal of Affective Disorders, 246, 201–208. https://doi.org/10.1016/j.jad.2018.12.024 Jelinek, L., Randjbar, S., Seifert, D., Kellner, M., & Moritz, S. (Sum 2009). The organization of autobiographical and nonautobiographical memory in posttraumatic stress disorder (PTSD). Combat and Operational Stress Research Quarterly. 1(1), 2. https://doi.org/10.1037/ e717702011-003 Rogers, H., Fox, S., & Herlihy, J. (2015). The importance of looking credible: The impact of the behavioural sequelae of post-traumatic stress disorder on the credibility of asylum seekers. Psychology, Crime & Law, 21(2), 139–155. https://doi.org/10.1080/1068316X.2014.951643 Graham, B., Herlihy, J., & Brewin, C. R. (2014). Overgeneral memory in asylum seekers and refugees. Journal of Behavior Therapy and Experimental Psychiatry, 45(3), 375–380. https://doi. org/10.1016/j.jbtep.2014.03.001 21  Berthold, S.M., Mollica, R.F., Silove D, Tay A.K., Lavelle J, Lindert J, (2019). The HTQ-5: revision of the Harvard Trauma Questionnaire for measuring torture, trauma and DSM-5 PTSD symptoms in refugee populations. Eur J Public Health. 29(3):468–474. https://doi.org/10.1093/eurpub/ cky256 19

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Some other trauma checklists that are available include: the Communal Traumatic Events Inventory (CTEI); the Comprehensive Trauma Inventory (CTI); the Harvard Trauma Questionnaire (HTQ); the Posttraumatic Stress Diagnostic Scale (PDS); the Stressful Life Events Screening Questionnaire (SLESQ); the Traumatic Life Events Questionnaire (TLEQ); the War Trauma Questionnaire (WTQ); and the War Trauma Scale (WTS).22

9.9  Harm and Causation If it is determined by the forensic psychologist that the person is being truthful, then the next issue is—what is the psychological harm suffered by the asylee and whether it is related to the treatment the person claims to have experienced in their country of origin? The forensic psychologist’s report will include physical injuries suffered by the asylee and how they affect them psychologically as well as the purely psychological injuries. This is the type of case where the forensic psychologist’s focus is on the immigrant him- or her- self. For the most part, individuals seeking protection in the United States left their country of origin without much preparation which means they probably do not have much, if any, evidence to back up their claim of having been harmed or fear of being harmed. Other than the testimony of the asylee, a psychological assessment may be the only evidence of past harm or fear of future harm. Those seeking asylum must demonstrate that they suffered harm or fear of suffering harm due to their being part of a protected class. Physical injuries such as scarring, loss, or damaging of body parts are easily exhibited but many of the injuries suffered by those escaping persecution are psychological injuries that are not so easily observable or believable. The psychological injuries can be more damaging and cause more severe and longer-lasting damage than the pain or disfigurement of physical torture. Examples of physical torture can include beatings, hanging, suffocation, burning, prolonged enforced standing, electric shock, sexual assault, and rape. Psychological abuses can include threats of violence against family and friends, mock executions, being forced to witness someone else’s torture or murder, being falsely accused of crimes, rape, and more. Each of the above listed physical abuses can also have psychological effects on the individual. Psychological injures can include headaches, chronic pain, difficulty concentrating, nightmares, insomnia, memory loss, fatigue, anxiety, depression, and post-­ traumatic stress disorder.

 Sigvardsdotter, E., Malm, A., Tinghög, P., Vaez, M., & Saboonchi, F. (2016). Refugee trauma measurement: a review of existing checklists. Public health reviews, 37, 10. https://doi.org/10.1186/ s40985-016-0024-5

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Many times victims are unable to speak of the abominations they were subjected to, or are unable to retell them in a manner that seems to be believable or accurate. Again, consider the example of Maria, above. The forensic psychologist must act as humanely as possible when dealing with the asylee. When asking for information about the torture, the forensic psychologist should take care to ask the asylee in a step-wise approach beginning with the situation and conditions prior to being apprehended and the events leading up to the torture experience. In many cases there are multiple experiences of torture, release and recapture or multiple torture experiences while being held captive for long periods of time. The torture may also have occurred in the person’s own home or neighborhood. The torture could have been administered systematically over time. It is important to allow the individual to lay all of the details they can remember including their emotional responses at each point in the story timeline. The forensic ­psychologist is looking for the depth of recollection and detail in trying to determine the validity of the claim from a psychological perspective. Many times the forensic psychologist will be asked to evaluate an individual who does not speak the same language. Though discussed in an earlier chapter, it is important to emphasize that unless the forensic psychologist is fluent in the language (and the cultural aspects of the language) of the asylee, a professional interpreter, trained in understanding the psychological terms, should be retained. Sometimes the asylee will arrive to the assessment with a relative or friend who speaks both languages (maybe because the attorney advised them to or they are trying to save the cost of the interpreter). This should be avoided and only the professional interpreter, who does not know the asylee or his/her family, should be employed during the assessment. I recall when I was starting out as a psychologist and worked at a hospital in the very diverse county of Queens, NY. An elderly Chinese man was brought in for an evaluation. He brought along with him his 11-year-old grandson to interpret for him. I called to request an interpreter but none would be available for many hours, if at all, that day (Queens has a large Chinese population and the hospital did not have enough interpreters on staff). We began the clinical interview. The young boy seemed very sharp, eager to help and was quite proficient in both Chinese (Mandarin, I believe) and English. However, it soon became obvious that I wasn’t getting real answers to my questions. Frustrated, I asked them to wait until the interpreter could arrive. Later in the day, I was able to conduct the clinical interview with the Mandarin interpreter and was able to get a rich amount of material (the grandson was not present in the assessment room). The lessons: (1) even those proficient in both languages cannot effectively (validly and reliably) interpret the concepts and ideas without proper training and understanding; (2) the use of an untrained interpreter may make any assessment tool, even if validated for use in that language, invalid; (3) the interpreter must be proficient not in just the language itself but in the cultural language (in the 1990s when I hosted a weekly TV program in Spanish, the crew—from different Spanish speaking countries—would break out into hour(s)-long arguments before air-time over the correct way to say something. Me, with my high school-level knowledge of

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Spanish, just got to sit and wait for the smoke to clear! I have had my share of embarrassing language miscommunications during my travels through Central and South America so...); (4) the presence in the examination room of a family member, or an individual known to the asylee or his/her family, may cause the asylee to not tell their full story or admit to what they may deem as embarrassing or shameful. The situation described above with the elderly Chinese man was for clinical purposes. For forensic evaluations DO NOT skimp on the use of an interpreter— aside for being able to obtain good and valid information, the failure to use an interpreter will be attacked by the opposition in the court proceeding and will most likely give the impression (if not the reality) of a poorly done, inaccurate report. If you get flack from the asylee or attorney because of the additional cost explain the necessity of the interpreter from a scientific perspective (validity and reliability) and that they would essentially be throwing away their money on the forensic evaluation since it will most likely be deemed of no value by the court (the economic perspective). Don’t skimp on the interpreter. In fact, I’ll go one step further and say refuse the assignment all together if they will not cover the cost of the interpreter—in addition to all else your reputation is on the line, as well. While we are discussing third-party observation, we must include a brief discussion on the presence of someone other than the interpreter in the session room (i.e., an attorney, professional observer) or even a recording device (i.e., audio, video). The presence of a third party in the examination room has been shown to have an effect on the participation and outcomes of psychological assessments (i.e., memory, affect). In 2008, the American Psychological Association published a statement regarding third-party observers during psychological evaluations which was “...designed to provide psychologists with information to assist them in (1) reaching a conclusion concerning the appropriateness of observation of psychological evaluations, (2) conveying the scientific and professional bases for such a conclusion, and (3) identifying options in light of such a conclusion, with sensitivity to the particular source and substance of a request for observation and the specific nature and circumstances of the assessment in question.”23 I strongly encourage you to review this document together with the current research on the presence of third-party observers and their effect on the evaluation process. In case you were thinking that you could surreptitiously record the session(s), National Academy of Neuropsychology has strongly opposed the use of secret recordings and has made it clear that use of such technique would be a violation of the ethical code.24

 American Psychological Association (Jan 2008). Now Available—Statement on Third Party Observers in Psychological Testing and Assessment: A Framework for Decision Making. American Psychological Association (APA), Science Directorate. https://doi.org/10.1037/e406222008-002. Available at: https://www.apa.org/science/programs/testing/third-party-observers.pdf 24  Bush, S. S., Pimental, P. A., Ruff, R. M., Iverson, G. L., Barth, J. T., & Broshek, D. K. (2009). Secretive recording of neuropsychological testing and interviewing: Official position of the National Academy of Neuropsychology. Archives of Clinical Neuropsychology, 24(1), 1–2. https://doi.org/10.1093/arclin/acp002 23

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The forensic psychologist must be wary of the cultural and religious aspects of the asylee. They may be reluctant, or even outright refuse, to discuss things that have happened to them that are considered, in their culture or religion, topics to never reveal (i.e., sexual contact). This also applies to the use of standardized assessment tools which have, for the most part, been normed on Caucasians of European dissent. Understanding and being sensitive to the cultural and religious norms cannot be emphasized more emphatically.

9.10  Diagnosing Trauma Post-traumatic distress disorder (PTSD) is commonly defined in two major sources of diagnostic criteria, the DSM-5 and the ICD-10. The DSM-5 lists eight criteria categories which must be identified in order for a diagnosis of PTSD. “Post-traumatic Stress Disorder A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

1. Directly experiencing the traumatic event(s). 2. Witnessing, in person, the event(s) as it occurred to others. 3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental. 4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains: police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:





1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s). Note: In children older than 6  years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed. 2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s). Note: In children, there may be frightening dreams without recognizable content. 3. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a

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continuum, with the most extreme expression being a complete loss of awareness of present surroundings.) Note: In children, trauma-specific reenactment may occur in play. 4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s). 5. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:

1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). 2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs). 2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., ‘I am bad,’ ‘No one can be trusted,’ ‘The world is completely dangerous,’ ‘My whole nervous system is permanently ruined’). 3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others. 4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame). 5. Markedly diminished interest or participation in significant activities. 6. Feelings of detachment or estrangement from others. 7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression towards people or objects. 2. Reckless or self-destructive behavior. 3. Hypervigilance. 4. Exaggerated startle response. 5. Problems with concentration. 6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

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F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month. G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.”25 The ICD-11, released in 2018, revised its diagnostic criteria for post-traumatic stress disorder as follows: “Post-traumatic stress disorder (PTSD) is a disorder that may develop following exposure to an extremely threatening or horrific event or series of events. It is characterized by all of the following: 1) re-experiencing the traumatic event or events in the present in the form of vivid intrusive memories, flashbacks, or nightmares. These are typically accompanied by strong or overwhelming emotions, particularly fear or horror, and strong physical sensations; 2) avoidance of thoughts and memories of the event or events, or avoidance of activities, situations, or people reminiscent of the event or events; and 3) persistent perceptions of heightened current threat, for example as indicated by hypervigilance or an enhanced startle reaction to stimuli such as unexpected noises. The symptoms persist for at least several weeks and cause significant impairment in personal, family, social, educational, occupational or other important areas of functioning.”26

It has been argued that this new formulation will result in fewer individuals being diagnosed with PTSD.27 However, the newly released ICD-11 included not only this revised diagnosis for PTSD but it also included a new diagnosis called “complex post-traumatic stress disorder” (CPTSD). This diagnosis does not appear in the DSM-5. The ICD-11 diagnostic criteria for CPTSD is stated as follows: “Complex post-traumatic stress disorder (Complex PTSD) is a disorder that may develop following exposure to an event or series of events of an extremely threatening or horrific nature, most commonly prolonged or repetitive events from which escape is difficult or impossible (e.g., torture, slavery, genocide campaigns, prolonged domestic violence, repeated childhood sexual or physical abuse). All diagnostic requirements for PTSD are met. In addition, Complex PTSD is characterized by severe and persistent 1) problems in affect regulation; 2) beliefs about oneself as diminished, defeated or worthless, accompanied by feelings of shame, guilt or failure related to the traumatic event; and 3) difficulties in sustaining relationships and in feeling close to others. These symptoms cause significant impairment in personal, family, social, educational, occupational or other important areas of functioning.”28

 American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.). https://doi.org/10.1176/appi.books.9780890425596 26  World Health Organization. (‎2018)‎. ICD-11: international statistical classification of diseases and related health problems: eleventh revision, 5th ed. World Health Organization. https://icd.who. int/browse11/l-m/en#/http%3a%2f%2fid.who.int%2ficd%2fentity%2f2070699808 27  Barbano, A. C., van der Mei, W. F., Bryant, R. A., Delahanty, D. L., deRoon-Cassini, T. A., Matsuoka, Y. J., Olff, M., Qi, W., Ratanatharathorn, A., Schnyder, U., Seedat, S., Kessler, R. C., Koenen, K. C., & Shalev, A. Y. (2018). Clinical implications of the proposed ICD-11 PTSD diagnostic criteria. Psychological Medicine. Advance online publication. https://doi.org/10.1017/ S0033291718001101 28  World Health Organization. (‎2018)‎. ICD-11: international statistical classification of diseases and related health problems: eleventh revision, 5th ed. World Health Organization. https://icd.who. int/browse11/l-m/en#/http%3a%2f%2fid.who.int%2ficd%2fentity%2f585833559 25

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Individuals diagnosed with CPTSD have experienced prolonged physical, sexual or emotional abuse, were kept in captivity for long periods of time or were exposed for long periods of time to dangerous living conditions. In addition to the symptoms described in the DSM-5, an individual suffering with complex-PTSD may experience: depression, grief, guilt, self-hatred, dissociation, depersonalization, emotional dysregulation, distorted perception or preoccupation with abuser, aggression against others, self-harm, difficulty being intimate, and more.29 Choosing the right assessments is important. There is no one set protocol for conducting the forensic evaluation and therefore the forensic psychologist must take into account the individual variables of the case when deciding on the assessments to be utilized. Variables to be aware of include the individual being assessed (i.e., culture, level of education, language, age) and purpose (i.e., psychopathology, cognitive defects, malingering). The most commonly used assessment tools when evaluating torture victims include the Harvard Trauma Questionnaire (HTQ-5) and the ClinicianAdministered PTSD Scale for DSM-5 (CAPS-5). The HTQ-5 has been updated to align with the DSM-5 diagnostic criteria for PTSD, is considered a valid measurement30 and is available for different cultures and in different languages with English translation. The CAPS-5 was developed by the U.S. Department of Veterans Affairs (DVA) and is considered “the gold standard in PTSD assessment.” The CAPS assessment begins with the administration of the Life Events Checklist for DSM-5 (LEC-5). The CAPS-5 itself is a 30-item structured interview that can be used to: –– “Make current (past month) diagnosis of PTSD –– Make lifetime diagnosis of PTSD. –– Assess PTSD symptoms over the past week.”31 According to the VA instructions, the full CAPS interview should take approximately 45–60 min to administer. In my experience, this is an underestimate of the time required for the interview. While some individuals (I use this assessment in any type of case in which PTSD is suspected, not just asylum cases) have been able to complete the interview in that time frame, a good number take longer. There can be a number of stops and starts depending on the effect the questions have on the individual or the level of detail the individual reveals. Ample time should be allocated.  Herman, J. L. (1992). Complex PTSD: A syndrome in survivors of prolonged and repeated trauma. Journal of Traumatic Stress, 5(3), 377–391. https://doi.org/10.1002/jts.2490050305 van der Kolk, B. A. (2002). The assessment and treatment of complex PTSD. In R. Yehuda (Ed.), Treating trauma survivors with PTSD. Washington, DC: American Psychiatric Press, Inc. 30  Berthold, S.M., Mollica, R.F., Silove D, Tay A.K., Lavelle J, Lindert J, (2019). The HTQ-5: revision of the Harvard Trauma Questionnaire for measuring torture, trauma and DSM-5 PTSD symptoms in refugee populations. Eur J Public Health. 29(3):468–474. https://doi.org/10.1093/eurpub/ cky256 31  https://www.ptsd.va.gov/professional/assessment/adult-int/caps.asp 29

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The LEC-5 and CAPS-5 are available for free on the VA website (see footnote 31). Other tools to use depend upon who and what is being assessed. Especially today, in light of the global refugee crisis, there is a steady stream of new assessments being developed for individuals from specific cultures.

 etting to the Truth: Poor Memory, Malingering, or Outright G Lying As we know, memory is a delicate thing. Studies by Elizabeth Loftus and others have repeatedly proven that memories, even those of traumatic events (“flashbulb memories”) can be inaccurate. We can ask questions, we can administer assessments but how can we determine if someone is telling us the truth or answering our assessments honestly? I am sure that some of you reading this now might say something to the effect, “I’ll know when I see it,” or “My clinical judgment, based on years of experience, will be accurate in detecting a fabrication.” Don’t count on it. Even the best of us have a difficult time parsing fact from fiction, at times. People are generally poor, or a best mediocre, lie detectors.32 Studies have indicated that even professional lie detectors, such as police officers, do no better at detecting lies than college students.33 The forensic psychologist can improve accuracy in detecting lies or malingering by using various sources of information, as discussed throughout this book, such as the forensic interview, psychological tests (i.e., MMPI-2), and collateral sources of information (i.e., documents and third-party interviews). Remembering or having an accurate memory for events is a different issue. As previously discussed, traumatic events have been shown to have different effects on memory from not knowing or being able to remember details to not remembering anything at all. Those who have experienced some type of trauma may have strong central memories of the traumatic event but little or no ability to recall peripheral ones.34 Research on memory, specifically in asylum cases, has been steadily increas Vrij, A., Hartwig, M., & Granhag, P. A. (2019). Reading lies: Nonverbal communication and deception. Annual Review of Psychology, 70, 295–337. https://doi.org/10.1146/ annurev-psych-010418-103135 Bond, C. F. & DePaulo, B. M. (2006). Accuracy of deception judgements. Personality and Social Psychology Review, 10 (3), 214–234. https://doi.org/10.1207/s15327957pspr1003_2 Bogaard, G., Meijer, E. H., Vrij, A., & Merckelbach, H. (2016). Strong, but Wrong: Lay People’s and Police Officers’ Beliefs about Verbal and Nonverbal Cues to Deception. PLoS One, 11(6), e0156615. https://doi.org/10.1371/journal.pone.0156615 33  Mann, S., Vrij, A., & Bull, R. (2004). Detecting True Lies: Police Officers’ Ability to Detect Suspects’ Lies. Journal of Applied Psychology, 89(1), 137–149. https://doi. org/10.1037/0021-9010.89.1.137 34  Herlihy, Jane & Turner, Stuart. (2007). Asylum Claims and Memory of Trauma: Sharing Our 32

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ing. The forensic psychologist needs to keep up to date on memory research and theories in trauma-related matters to be able to understand lapses in memory during the evaluation (and maybe detect false presentations) and to explain deficits in the narrative presented by the foreign national in an asylum case.

Late Filing of Asylum Application The refugee applies for asylum in the United States while still in a foreign country. The asylee must apply for asylum within 1 year from the date of last arrival in the United States. If the application is made more than 1 year after arrival, the foreign national must show either changed circumstances that materially affect the applicant’s eligibility or extraordinary circumstances that delayed filing an application and that the application was filed within a reasonable amount of time given those circumstances. In a late filing application, the forensic psychologist may be employed to determine whether the psychological state of the asylee was such that they were unable to comply with the deadline. For example: a transgender woman from a foreign country was repeated sexually abused, raped, and beaten. She escaped to the United States to seek safety. She suffered from severe post-traumatic stress disorder and depression which eventually led to repeated hospitalizations. A showing of how her psychological state prevented her from focusing on making the asylum application until she was emotionally stable would be proof of her reason for the delayed filing.

Knowledge. The British journal of psychiatry: the journal of mental science. 191. 3–4. https://doi. org/10.1192/bjp.bp.106.034439

Chapter 10

The Citizenship Waiver John Doe, a legal permanent resident from Honduras, has been living in the United States for fifteen years. Five years ago he was in a automobile accident in which his head was violently smashed against the passenger window. John suffered a traumatic brain injury that resulted in severe and permanent brain damage. He has undergone years of therapy but his injuries have left him largely incapacitated. Before the car crash John had planned to file for his United States citizenship but that dream was quashed due to the cognitive deficits he now experiences. His children, looking for a way to bring some joy into their father’s life, sought the advice of an immigration attorney to see if their father could fulfill his dream of becoming a U.S. citizen. They know that in order to become a citizen the applicant must take and pass two written tests. Can John ever become a U.S. citizen?

Any person born in the United States or territories of the United States can be a citizen of the United States. A person born in a foreign country whose parent or parents were U.S. citizens at the time of birth may also be considered a U.S. citizen. For all others, there are lawful paths to U.S. citizenship. A person who is at least eighteen (18) years old, has been a legal permanent resident (green card holder) for at least five (5) years and has been living in the United States for at least thirty (30) months out of the previous five (5) years may apply for naturalization. The applicant must be “a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during all relevant periods under the law.”1 A person married to a U.S. citizen who has been a legal permanent resident for three (3) years may be eligible to apply as may an individual who has served in the U.S. military or the child of a U.S. citizen born and living in a foreign country.

1  USCIS (2019). Path to Citizenship. https://www.uscis.gov/us-citizenship/citizenship-throughnaturalization/path-us-citizenship. Accessed 5 Aug 2019.

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No matter which path the applicant takes towards naturalization, the individual must be of “good moral character” (see Chapter 7) and is required to take and pass a naturalization examination administered by an officer of the U.S. Customs and Immigration Service. This examination is made up of two parts. The first examines the foreign national’s proficiency and ability to read, write, speak, and understand the English language. The second is a civics examination to test the foreign ­national’s “knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.”2 The “Immigration and Nationality Technical Corrections Act of 1994,” signed into law by President Bill Clinton, changed the naturalization requirement for a child born outside the United States from having a father who is a U.S. citizen to having either parent being a U.S. citizen. For our purposes, it also added an exemption from the examinations of government knowledge, United States history, and English language requirements for naturalization for those applicants who are unable to meet those requirements as a result of a physical or developmental disability or a mental impairment. If the applicant is claiming the inability to take the examination they bear the burden of proof to show to the immigration officer or court, by a preponderance of the evidence, that they suffer a “medically determinable” physical or developmental disability or mental impairment that has lasted, or is expected to last, at least 12 months. It must also be shown that the disability will interfere with the applicant’s ability to take the examinations even with reasonable accommodations. An application for an exception to the naturalization examinations differs from that of asking for an accommodation to taking the examinations. A successful application for an exception means the applicant never has to take the examination(s), while an accommodation “modifies the manner in which an applicant meets the educational requirements.”3 The USCIS considers reasonable accommodations to include, but not limited to sign language interpreters, extended time of testing, and off-site testing. Different people will be affected by psychological or medical conditions in different ways. A clinical condition in one case may disable the individual while in another it may only require that the individual be given an accommodation, while in a third case it may not disable the individual at all. The USCIS gives this example: “…someone who has low vision may require the accommodation of a large print version of the reading test in order to complete the requirement. However, if a person is not able to read because of the medical condition even with an accommodation, then the person needs to file [for an exception]…”.4

 8 CFR § 312.2—Knowledge of history and government of the United States.  USCIS policy manual, Volume 12: Citizenship & Naturalization, Part E: English and Civics Testing and Exceptions, Chapter 3: Medical Disability Exception, and the Instructions for Form N-648, Medical Certification for Disability Exceptions. https://www.uscis.gov/policy-manual/ volume-12-part-e-chapter-3. Accessed 9 Aug 2019. 4  Ibid. 2 3

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Illiteracy, by itself, is not considered a valid reason to allow the applicant to be exempt from taking the examination. Disability or impairments due to the use of illegal drugs make the applicant ineligible for this exemption. Except under certain circumstances proscribed by law, advanced age is not considered a medically determinable physical or developmental disability or mental impairment. In order to meet this burden of proof, it is required that a licensed medical professional or psychologist submit a form or report, sworn to under penalty of perjury, that the applicant’s disability prevents them from meeting the examination requirements. The diagnosis of the impairment must be based upon validated clinical or laboratory diagnostic techniques. While on the surface this seems like an easy application, be aware that this is anything but a pro forma exercise. The USCIS does not easily grant exceptions to taking the naturalization examinations. The psychologist must provide a detailed report of the applicant’s condition and show a causal connection between the disability and/or impairment and the applicant’s inability to complete the examinations. To meet this requirement, the psychologist must complete USCIS form N-648, Medical Certification for Disability Exceptions (please see Appendix B, as an example). The latest version of the form (the only version which will be accepted by USCIS) is available on the USCIS website in a writable PDF format.5 The answers must be legible for the application to be accepted by the USCIS. It is best to open the PDF form on your computer and submit it with the answers typewritten in the writable electronic PDF form since any illegible parts of the form may cause the USCIS to reject the entire application. After completion, print out the form and be sure to sign in the appropriate section. Improperly signing and certifying the form will result in denial of the application. The good news is that according to the USCIS Policy Manual, the officer reviewing the exception application, when determining the sufficiency of the N-648 submission, does not have the authority to “[a]ttempt to determine the validity of the medical diagnosis or second guess why this diagnosis precludes the applicant from complying with the English and civics requirements.”6 Further, the officer cannot “[r]equire that an applicant undergo specific medical, clinical, or laboratory diagnostic techniques, tests, or methods.”7 This means that the officer cannot substitute his or her own belief for that of the clinical professional that a particular assessment should have been/be used to make the diagnostic determination.

5  The N-648 form is included here for reference only. Be sure to check the USCIS website for the latest version of the form when making an application. 6  USCIS policy manual, Volume 12: Citizenship & Naturalization, Part E: English and Civics Testing and Exceptions, Chapter 3: Medical Disability Exception, and the Instructions for Form N-648, Medical Certification for Disability Exceptions. https://www.uscis.gov/policy-manual/ volume-12-part-e-chapter-3. Accessed 9 Aug 2019. 7  Ibid.

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However, while the officer is precluded from making a psychological/medical determination, the officer is tasked with ensuring that the N-648 had been properly completed and meets the statutory requirements for an exception. This means ­making a determination that the psychologist has fully answered all of the required questions, that there are “no discrepancies between the [N-648] form and other available information, including biographic data, testimony during the interview, or information contained in the applicant’s A-file,”8 and determining whether the form “contains enough information to establish that the applicant is eligible for the ­exception by a preponderance of the evidence. This determination includes ensuring that the medical professional’s explanation is both sufficiently detailed as well as specific to the applicant and to the applicant’s stated disability (rather than a generic, ‘one size fits all’ explanation).”9 Additionally, the officer ultimately decides whether the information submitted by the psychologist “fully addresses the underlying medical condition and its causal connection or nexus with the applicant’s inability to comply with the English or civics requirements or both.”10 The clinical questions, found in the current Part 3 on the current N-648 form, ask the psychologist to: “1. Provide the clinical diagnosis of the applicant’s disability and/or impairment, that form the basis for seeking and exception to the English and/or civics requirements. If applicable, please provide the relevant medical code as accepted by the Department of Health and Human Services (HHS). This includes the Diagnostic and Statistical Manual of Disorders (DSM) and the International Classification of Diseases (ICD). For example, DSM-V 318.1 Intellectual Disability (Severe) or 2015/16 ICD-10-CM F72 Severe intellectual disability.”

The USCIS prefers that the psychologist make a diagnosis using a recognized diagnostic code (DSM or ICD). Failure to provide a diagnostic code will immediately flag the application and most likely lead to its denial (not to mention placing the psychologist’s credibility in jeopardy). A diagnosis of a severe intellectual ability such as those associated with Down’s Syndrome, dementia, Alzheimer’s disease, or other type of similar disorder, is an obvious one. Though more difficult to establish causality for purposes of this application, other diagnoses may also include a severe cognitive disability or impairment associated with disorders such as post-traumatic stress disorder (PTSD)11

 Ibid.  Ibid. 10  Ibid. 11   Jak, A. J., Crocker L. D., Aupperle R. L., Clausen A., Bomyea J. (2016). Neurocognition in PTSD: Treatment Insights and Implications. Curr Top Behav Neurosci. 2018;38:93–116. https:// doi.org/10.1007/7854_2016_62. 8 9

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s­ chizophrenia12 depression, depression after experiencing a stroke13 bipolar disorder14 and manic bipolar disorder15 and others. The USCIS then requires the psychologist to: “2. Provide a basic description of the disability and/or impairments, for example, Intellectual Disability (Severe) is a genetic disorder that causes lifelong intellectual disability, developmental delays, and other problems.”

The description of the disorder should be in plain, easily understood language. Do not use professional jargon (i.e., retrograde amnesia—instead say “loss of memories from prior to the trauma/injury”), abbreviations (i.e., PTSD—instead spell out “post-traumatic stress disorder”), or acronyms (i.e., ACT—instead spell out Assertive Community Treatment). The next set of questions regard the professional relationship between the psychologist and the applicant. Questions 3 and 4 ask for the dates of first and last examination of the applicant for the claimed disorder. Question 5 asks whether the psychologist is the regular treating clinical professional or conducting this assessment solely for this application. If the psychologist is the applicants treating clinical therapist, then there is usually no issue. However, if the psychologist is evaluating the applicant exclusively for the exception application, then the psychologist must include the name, address, and telephone number of the applicant’s regularly treating clinical professional and “a credible and sufficiently detailed explanation for the reason that the regularly treating medical professional did not complete the Form N-648.”16 An example of this situation might be the following: Jose, a Guatemalan national living in the United States for 10 years has a valid green card. He is applying for naturalization and has met all of the requirements except he suffers from severe post-traumatic stress disorder which has caused him to have extensive memory issues, headaches, and other symptoms that have prevented him from learning to read, write, and speak English. For the past 3 years, he has been treated in a clinic by a psychiatric nurse practitioner. Psychiatric nurse practitioner is not an accept-

 Harvey, P. D. (2005). Cognitive Impairment in Schizophrenia. Primary Psychiatry, 12(2), 7–9.  Starkstein, S. E., Brockman, S., & Hayhow, B. (2013). Depression after stroke. In J. M. Ferro (Ed.), Neuropsychiatric symptoms of neurological disease. Neuropsychiatric symptoms of cerebrovascular diseases (pp. 51–64). New York, NY, U.S.: Springer-Verlag Publishing. https://doi. org/10.1007/978-1-4471-2428-3_3. 14  Lima I.M.M., Peckham A.D., Johnson S.L., (2017). Cognitive deficits in bipolar disorders: Implications for emotion. Clin Psychol Rev. 2018 Feb;59:126–136. https://doi.org/10.1016/j. cpr.2017.11.006. Epub 2017 Nov 21. 15  Vrabie M., Marinescu V., Talaşman A., Tăutu O., Drima E., Micluţia I. (2015). Cognitive impairment in manic bipolar patients: important, understated, significant aspects. Ann Gen Psychiatry. 2015 Nov 25;14:41. https://doi.org/10.1186/s12991-015-0080-0. eCollection 2015. 16  USCIS policy manual, Volume 12: Citizenship & Naturalization, Part E: English and Civics Testing and Exceptions, Chapter 3: Medical Disability Exception, and the Instructions for Form N-648, Medical Certification for Disability Exceptions. https://www.uscis.gov/policy-manual/ volume-12-part-e-chapter-3. Accessed 9 Aug 2019. 12 13

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able profession for submission to the USCIS. A psychologist is retained to evaluate Jose for purposes of this application. After obtaining all of the information from the psychiatric nurse practitioner pertaining to Juan’s care and treatment, the psychologist conducts the assessment and completes the N-648 form. Question 6 inquires about the length of time the applicant’s disability existed or is expected to exist. To qualify for this exception, the disorder must be present or expected to be present for at least 12 consecutive months. Question 7 asks whether the disorder is the result of illegal drug use by the applicant. Applicants suffering from substance-induced disorders are not eligible for an exception to the naturalization examinations. The next question, 8, asks what caused the disability. Obviously, this question can only be answered if the information is within the knowledge of the psychologist either through documentation or by the information provided by the applicant. In Question 9, the psychologist explains the methodology used in determining the disability. It is important to be aware that simply conducting a clinical interview is usually insufficient in making a determination that will be acceptable to the USCIS. Self-report assessments raise red flags. While self-report assessments can be part of the overall evaluation, the psychologist should include other types of measures as well, such the Wechsler Adult Intelligence Scale, Wechsler Memory Scale, fourth edition (WMS-IV), or The Montreal Cognitive Assessment. In the event diagnostic assessments were not utilized during the assessment, the psychologist must explain why that occurred and how a diagnosis was determined without the use of diagnostic assessments.

10.1  Causation (Question 10) In order for the application to be granted, the psychologist must make the causal connection between the diagnosed impairment or disorder and the inability to take the examinations. The psychologist is advised that even if the connection is obvious it must be clearly stated, with as much detail as possible, why the applicant is unable to do what is necessary to pass the examination. The USCIS wants a comprehensive explanation as to why the applicant is unable to learn or communicate enough for the exams, or otherwise to take the exams under specific conditions (i.e., in English; sitting down in an office, with time limitations). Not stating this in detail, even if obvious, is a ground for a denial. The USCIS provides the following example: Posttraumatic stress disorder affects attention, concentration, and proper memory functions. PATIENT becomes dizzy when she concentrates on difficult tasks, experiences frequent headaches … further, she is often in a state of heightened anxiety as a result of the posttraumatic stress which limits her ability to make new long-term and short-term memories and recall this information, if needed. Further, her performance on ___ exam demonstrated an inability to … along with generalized confusion about orientation to space, time, and place. It is my professional opinion that due to … PATIENT is unable to recall recently-­ learned information, including her ability to understand, read, and speak English.

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If, during the assessment, the psychologist used an interpreter, that interpreter must complete the “Interpreter Certification” section of the form. The USCIS Policy Manual lists a number of factors for its officers to be aware of in determining whether an application contains “credible doubts” and should be denied. These factors include: –– The responses by the psychologist did not contain a reasonable degree of detail or failed to provide any basis for the stated diagnosis. –– The psychologist failed to state why the applicant cannot meet the educational requirements. –– The psychologist failed to explain the specific medical, clinical, or laboratory diagnostic techniques used in diagnosing the applicant’s medical condition. –– The psychologist did not include an explanation of the doctor–patient relationship indicating that the psychologist regularly treats the applicant for the cited conditions, or provide a reasonable justification for not having the regularly treating psychologist complete the form. –– The psychologist completed the form more than 6 months before the applicant filed their naturalization application. –– The information provided on the form is inconsistent with information provided on the naturalization application or at the interview. For example, the effects of the medical condition on the applicant’s daily life, such as employment capabilities or ability to attend educational programs. –– Previous medical reports did not identify a long-term medical condition which may be inconsistent with the reporting on the form of when the condition began, if indicated. –– The applicant or psychologist failed to provide a reasonable justification for filing the form late. –– The applicant during the interview indicated that they were not examined or diagnosed by the psychologist, the psychologist did not certify the form, or the applicant merely paid for the form without a doctor’s examination and diagnosis. –– The psychologist completing the form is under investigation for immigration fraud, Medicaid fraud, or other fraud schemes. –– The psychologist has engaged in a pattern of submitting these forms with similar or “boiler plate” language that does not reflect a case-specific analysis. –– The interpreter used during the psychological assessment, the interview, or both, is known or suspected, by FDNS or another state or federal agency, to be involved in any immigration fraud. –– The evidence in the record or other credible information available to the officer indicates fraud or misrepresentation. –– The applicant provided multiple forms with different diagnoses and information from different doctors. –– Any other grounds that are supported by the record.17

 USCIS Teleconference on N-648, Medical Certification for Disability Exceptions. AILA Doc. No. 19012835. (Posted 2/28/19).

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For some, a disability can be a barrier to obtaining United States citizenship. A proper conducted assessment and completion of the N-648 form by the forensic psychologist can mean all the difference for the worthy candidate.

Chapter 11

Mitigation

Immigration and Nationality Act §1228. Expedited removal of aliens convicted of committing aggravated felonies (a) Removal of criminal aliens (1) In general The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense covered in section 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. Such proceedings shall be conducted in conformity with section 1229a of this title (except as otherwise provided in this section), and in a manner which eliminates the need for additional detention at any processing center of the Service and in a manner which assures expeditious removal following the end of the alien’s incarceration for the underlying sentence. Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. Guillermo, a native of Mexico, entered the United States legally with his family and obtained legal permanent resident status. During his teen years, Guillermo’s mental health began to severely decline. He was diagnosed with schizophrenia and placed on a regular regimen of medications for his mental illness. More than a decade later Guillermo entered a bodega carrying a weight bell (a weight with a handle attached to it that is used in various exercise routines). While in the store he swung the weight bell, grazing the top of the storeowner’s head causing an injury that required stitches. Guillermo was arrested, pled guilty to assault with a deadly non-firearm weapon and was sentenced to two years in prison. As a result of his criminal conviction he was charged with removability under the Immigration and Nationality Act (“INA”) as an alien convicted of an aggravated felony. The Immigration Court and BIA found him removable. Guillermo appealed the case to the federal court.1

 Gomez-Sanchez v Session. U.S. Court of Appeals for the Ninth Circuit. No. 14-72506 (2018).

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In a case such as this, is removal of someone like Guillermo from the country automatic because of his criminal conviction? It is presumed that if a serious crime has been committed then the person who committed the crime presents a danger to the community and, that being the case, is not entitled to protection in this country from the dangers or persecution in another country. So, if the law states that conviction of a serious crime is grounds for removal from the United States, how is it possible that Guillermo’s removal isn’t automatic? The answer is: Mitigation. In the matter of Wiggins v. Smith2 the U.S. Supreme Court held that the failure by counsel to present mitigation evidence in a case constitutes ineffective assistance of counsel in violation of the Sixth Amendment. What is “mitigation” and how does it affect an immigration case? As we have seen in previous chapters, an individual who has been convicted of certain crimes, especially those deemed to be “crimes of moral turpitude,” may be removed from the country. However, the Immigration Court has discretion in determining the severity of a crime and how it is applied to the removal case. Mitigation evidence is that which offers insight into why a crime may have been committed in an attempt to show a lesser degree of culpability. It is not presented to justify the crime but to put it in context for the purpose of eliciting fairness and mercy by showing extenuating circumstances that may result in a reduction of the charges or sentence.3 In effect, it is a presentation of evidence designed to evoke empathy in a way that humanizes the individual in the eyes of the decision-maker(s). On the other hand, aggravating evidence is any fact about the crime that can increase the individual’s culpability in or the severity of the crime which may include: repeating the criminal act (i.e., multiple robberies or multiple physical encounters), failure to show remorse for the crime, the amount of harm caused to the victim, committing a crime in the presence of a minor, and more.4 In Guillermo’s case, the fact of his mental illness would be a mitigating circumstance. Even though his action was a crime for which he was sentenced to a prison term in criminal court, his pre-existing mental illness must be taken into consideration in the determination of whether his crime is one of “moral turpitude” for purposes of the immigration matter. Any immigration matter in which the petitioner or foreign national applying for legal status has a criminal conviction is ripe for a forensic mitigation assessment. This applies to the petitions of United States citizens or legal permanent residents filing on behalf of a foreign national, as well. In many cases, the conviction is 2  Wiggins v. Smith, 539 U.S. 510 (2003). In Roberts v. Louisiana, 428 U.S. 325 (1976) and Woodson v. North Carolina, 428 U.S. 280 (1976), the U.S. Supreme Court found that in death penalty cases mandatory sentencing guidelines were in violation of the Eighth Amendment and required individualized sentencing which included the use of mitigation. 3  Black’s Law Dictionary. https://thelawdictionary.org/mitigation/ and https://thelawdictionary.org/ mitigating-circumstance/. Accessed 16 Sept 2019. 4  https://www.law.cornell.edu/wex/aggravating_factor. Accessed 29 Sept 2019.

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grounds for a denial of the petition without even looking at the underlying proceeding (i.e., extreme hardship), so it is important to present all of the available evidence in order to have a better chance at a positive result. The goal of a forensic mitigation report is to present the judge or adjudicator with a complete history of the petitioner’s life and experiences, as pertain to the issue at hand, so as to humanize the petitioner and show why, despite the criminal conviction, the petition should be accepted and the case permitted to go forward to the underlying issue. The case law in this area is clear that the mitigation report is not presented for the purpose of relieving the individual of responsibility for the crime committed but to look at factors that may require a lessening of the punishment (i.e., sentencing in criminal case/removal in immigration cases). As such, it is important to remember that the report must focus on those aspects of the person’s life that are relevant to the crime for which they were convicted. Unrelated aspects may serve to weaken the report and lessen the chance for a positive outcome. There are many pieces of the individual’s life that fit into a mitigation report. Each State has its own statutory requirements for what constitutes mitigation evidence. The basic thrust of the mitigation evaluation and report is to plainly show the judge in the case any trauma and deprivation suffered by the defendant and how it affected the individual. Included in the report should also be evidence of remorse (if any), the positive aspects of the individual’s life before and after the committing of the crime and any good that a defendant has accomplished or can accomplish in the future. The federal law places no limitation on the evidence that can be produced in mitigation.5

11.1  Gathering Records Obtaining and reviewing all of the relevant and available records pertaining to the subject of the mitigation report is an important first step in preparing an evaluation and report. While there may be additional records gathered along the way, understanding some of the recorded background of the individual will provide the forensic psychologist with a rich source of information to aid in the forensic interviews (discussed below). Most, if not all of these records, can be obtained from the attorney handling the case. If not, the forensic psychologist should obtain executed authorizations from the individual permitting the release of the records to the forensic psychologist. The forensic psychologist should not rely upon an attorney’s case summary or document review as a substitute for personally reviewing the records

5  18 U.S. Code § 3661. Use of information for sentencing. No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. (Added Pub. L. 91–452, title X, § 1001(a), Oct. 15, 1970, 84 Stat. 951, § 3577; renumbered § 3661, Pub. L. 98–473, title II, § 212(a)(1), Oct. 12, 1984, 98 Stat. 1987.)

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since that summary/review may not contain all of the information or detail necessary for a complete forensic evaluation. While reviewing the records, the forensic psychologist should be mindful of potential biases of the reporters of those records. Questions to think about include: who was the reporter working for and reporting to? What was the purpose of the report? Does the report appear complete? Forensic psychologists use varying techniques in how they present themselves with records. Some review all available records prior to conducting a psychosocial interview while others review the records after the initial interview with the subject. Personally, I like to meet and begin the interview with the subject before reviewing records and then follow up with the subject. I do this to try and avoid creating any thoughts about the subject before meeting him or her. What type of records should the forensic psychologist be looking for? The most obvious would be mental health records but it is vital to be aware that while the mental health of the individual is an important piece to the mitigation report, it is not the only one. The mitigation report is a psychosocial evaluation of the individual and must include other aspects of the person’s psychological makeup in order to explain the individual’s behavior. That said, not only should all psychiatric hospitalization and psychological treatment records be obtained and reviewed but all medical, hospital, and treatment program records (i.e., drug or alcohol), as well. A review of these records could uncover serious trauma suffered by the individual which may be physical (i.e., head injuries, exposure to toxic substances, shocks to the body) or psychological (i.e., emotional abuse) in nature. Sometimes the individual or members of the individual’s family are reluctant to discuss some of these issues because they are embarrassed by them. In many others, cultural reasons or norms make speaking about personal matters or speaking with “authorities” a taboo. For some, past negative experiences with those in “authority” makes it difficult for the traumatized individual to trust anyone outside of their family or immediate circle. Having the existing documentation information available will allow the forensic psychologist to have a better understanding of the questions that should be asked during the interview(s). It may also make the forensic psychologist aware of witnesses who should be included in the fact gathering process. Records to acquire include, but are not limited to: • Education records: School records will provide information not only about the individual’s highest level of education and degrees earned but may include attendance history, grades, teacher comments, evidence of learning disabilities (or achievements); problems in the home (i.e., showing up improperly dressed or dirty, unfed), psychological assessments, the individual’s participation in the school community, special talents, mental health challenges, social behaviors, other specific challenges, developmental issues, and potentially more. Included in this category may be an Individualized Education Plan (IEP) which is an official document developed to provide a child who suffers from a disability to receive specialized instruction and other related services. If the individual has or had an IEP, then there are most likely psychological, psychosocial, and medical

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records that supported the plan. There may be a 504 Education Plan which provides for specific accommodations for the individual (i.e., extra time on tests; different testing environment). College educated individuals may have also received special accommodations. Juvenile records: These records may include not only information about crimes committed by the individual while still a minor but also family background, records of placements, institutions where the individual attended, teachers or counselors who may have important information about the individual, psychological/psychosocial reports, treatment records, social interaction records, and the like. They might also provide information about behavioral problems (i.e., truancy, running away from home). Child protection records: If the individual was the victim of child neglect, physical, psychological, or sexual abuse that was brought to a child welfare agency or court for adjudication, those records could be vital to a forensic mitigation evaluation and provide valuable information about the background of the individual and the trauma he or she may have experienced. Was the individual removed from the home? Placed in foster care? Sent to live with other relatives? Precluded from contact with parents or other family members? Homeless? Employment records: Occupation and work history, employment current status (e.g., employed, unemployed, full-time, part-time) and special skills or training the individual possesses. These records may also provide insight as to the individual’s social skills. Military service records: Information that may be obtained through records include: type of discharge; medical (i.e., exposure to toxic chemicals, concussion) or psychological issues (i.e., PTSD, drug addiction); deployments; commendations; sanctions. Disability/SSI records: These records may provide evidence of physical and mental conditions, the treatment obtained for them, and the effect they had on the individual. There may be indications of malingering or other negative aspects of which the forensic psychologist should be aware. Criminal Case records: These records will provide the details of the crime or crimes for which the subject has been convicted, the people involved in that crime(s) and more. After a conviction, the matter is then forwarded to the probation office which prepares a “presentencing report” for presentation to the judge to use when deciding the sentence to be imposed upon the defendant. The official preparing the report (a probation officer or someone designated to perform this function) investigates the defendant’s background, the victims of the crime and other relevant individuals and information and, based upon the findings of that investigation, writes up a recommendation for sentencing. Grand jury records and transcripts may also prove helpful. Prison records: These records will provide information about the officially recorded experience of the individual while in prison (the individual may reveal experiences that are not in the official reports that have affected the individual). What type of prisoner was the individual? Cooperative? Disruptive? Did the individual adjust well to prison routine/life? Did the individual work on improving

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him- or herself by taking courses or earning a GED? Are there prison medical or mental health records? These records can be helpful in predicting future dangerousness. Mental Health Reports: Have there been hospitalizations in the individual’s history? Are there psychiatric hospitalization records? Mental health care records? Treatment records? Were any psychological/neuropsychological assessments conducted? Drug or alcohol evaluations? Treatment? Rehabilitation experiences? These records will give more information not only about diagnoses but how the individual responded to treatment. Probation records: When an individual needs to report to a probation officer, that officer maintains a record of the individual’s conduct and condition and the improvement or decline, if any, in his or her conduct and condition. Correspondence and other documents which exhibit individual’s connection to family and community. Religious involvement: regular attendance at the individual’s religious services; participation in activities of their house of worship (i.e., giving instruction, food drives, aiding the needy); active in the administration of their house of worship.

11.2  Forensic Psychosocial Interview of the Subject A complete forensic interview is a vital start to the process of preparing a mitigation report. Not only do you want to get information regarding the crime but you need to examine all aspects of the individual’s life including developmental history, environmental influences, psychological issues, disabilities, and current levels of functioning. There may be a history of abuse such as physical, emotional, or sexual in the individual’s life. This must be explored to determine its influence, if any, on the commission of the crime. It should also help identify the individual’s strengths, skills, and achievements.

11.3  Attorney Work Product Rule It is important to keep in mind that the forensic psychosocial interview is different from a clinical interview. The main goal of the forensic interview is to obtain facts that will be submitted to a court or administrative proceeding for the purpose of determining a legal issue. The judicial body is the focal recipient, not the individual, even though the individual or his or her attorney may be contracting your services. Establishing the working relationship prior to commencing the evaluation is vital. For example, suppose the individual retains the forensic psychologist and after the evaluation the result is not one the individual was looking for—that report is discoverable (able to be legally obtained) by the other party. However, if the individual’s attorney retains the forensic psychologist and the report is not the one expected then

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the report is not discoverable by the other side since the report is considered attorney work product. The attorney work product doctrine states that materials prepared by or for an attorney in the course of representation or in preparation for trial are not required to be disclosed to the adverse party. Each State has its own set of procedural and evidentiary rules pertaining to attorney work product. Under the Federal Rules, if an adverse party can show a “substantial need” for the material(s) and that it would suffer “undue hardship” then a court would compel disclosure.6 It is recommended that the forensic psychologist enter into a work relationship with the attorney so as to be able to invoke the attorney work product doctrine in the event an adverse party seeks the file and report of the psychologist which is not favorable to the individual. As has been stated numerous times throughout this book, the forensic psychologist’s reputation for neutrality and honest assessment is paramount. A retainer with the attorney relieves the forensic psychologist of having to worry about the result of the assessment affecting the case—if the attorney doesn’t like the report he or she does not have to use or disclose it and thus it will not affect the case—the fees for the assessment will still have to be paid but it won’t put the attorney in a difficult position from a litigation perspective.

11.4  Open-Ended and Close-Ended Questioning As mentioned previously, the forensic psychologist must not show bias towards or against the individual but maintain a position of neutrality in the administration and evaluating of the individual. Any perceived non-neutral actions or conflicts of interest by the forensic psychologist will not only make the report suspect but will damage the psychologist’s reputation. The best way to conduct an interview is to use open-ended, as opposed to close-ended questions. Open-ended questions are those that allow the responding individual to freely answer a question using whatever and as much language the individual deems fit. An example of an open-ended question would be: “Why were you in the bodega on that day?” Close-ended questions are those that can only be answered with a “yes” or “no” answer or with a predefined set of answers. An example of a close-ended question would be: “Isn’t it true that you tried to rob the bodega on that day?” Using open-ended questions during the interview reduces the appearance of bias on the part of the forensic psychologist. It also allows the responding individual to feel more comfortable with the process and the interviewer and not as if they are being given the “third-degree.” More so, open-ended questions tend to provide richer information and lead to other areas of inquiry or investigation that might not otherwise have become apparent to the forensic psychologist.

 FRE Rule 26(b)(3).

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11.5  Competency Issues of competency may need to be explored and assessed when interviewing the subject. If the subject of the interview is the foreign national, issues of competency will affect the ability of that foreign national to participate in the litigation until there is a return to competency. If the subject of the interview is a petitioner on behalf of the foreign national, the issue of competency may go to that individual’s ability to participate as a witness. If competency is an issue, the forensic psychologist should notify the attorney. Conducting a competency assessment is an important part of the forensic assessment. Some assessments and interviews used in competency evaluations include: –– –– –– –– –– –– –– –– ––

Competency Screening Test Georgia Court Competency Test (GCCT) Computer Assisted Competence Tool Competency Assessment Instrument (CAI) Interdisciplinary Fitness Interview (IFI) Fitness Interview Test MacArthur Competence Assessment Tool-Criminal Adjudication Miller Forensic Assessment of Symptoms Test (MFAST) (malingering) Competency Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) –– Evaluation of Competency to Stand Trial-Revised (ECST-R)

11.6  W  hat Should the Forensic Psychologist Include in an Interview with the Subject? Remember, this is a psychosocial evaluation so asking about the details of the individual’s life is of the utmost importance: family history; mental illness in the family line; family life growing up and currently; developmental history; education; medical history; surgical history; psychiatric/psychological history; criminal history; substance abuse; relationships and social functioning; work history; abuse history (if any); trauma; current mental health status; and any other items which may be raised as the interviews and records review proceed. Conducting a thorough mental health examination is also an important aspect of the forensic assessment.

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11.7  Record or Not Record? That Is the Question Should interviews be recorded, either with a video or audio recorder? The answer is, it depends. Without question detailed written notes of the interview should be made. This is not only an ethical requirement but also a necessary one for guaranteeing an accurate assessment and evaluation. Recording of the interview(s) may help the forensic psychologist clarify or verify something said by the interviewee later on. In some types of case, recording of the interview is required by law.7 The forensic psychologist should check with the attorney for any State or federal law which may require the recording of an interview. The recording of interviews has not been determined to be unethical so long as the individual being recorded consents. It is strongly advised that consent be obtained both in writing and at the beginning of the recording (i.e., “Do you understand that this interview is being recorded …?” [check local State laws for any specific wording that should be used in both the written and verbal consent]). The recordings and written notes would be protected under the attorney work product doctrine if the psychologist is retained by the attorney for litigation purposes.

11.8  Interview Location and License Violations Another consideration to be aware of is the location of the person being interviewed. In some instances, the individual is not in the State where the forensic psychologist is licensed to practice. Conducting an interview or assessment with someone outside of the State license jurisdiction can be a crime. It should be noted that the location of the individual being interviewed is deemed to be the location where services are being rendered, therefore, even if the interview is conducted by telephone or videoconference, the forensic psychologist will still be operating outside of the law.

11.9  I nterviews with Family, Friends, and Other Relevant Witnesses Interviewing family members and other people who can contribute relevant information to the mitigation analysis is also an important part of preparing the report. The people who know the individual being reported on may be able to provide corroborating, additional or new information about the subject. Those being interviewed may have played a part, knowingly or unknowingly, in the crime committed by the individual (i.e., the subject stole a loaf of bread to feed hungry family

 State v. Hurd, 86 N.J. 525 (1981).

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­ embers). Or maybe the witness has health needs that require the help of the indim vidual for survival. Other helpful sources of information about the individual may come from friends, caretakers, teachers, mentors, business associates/fellow employees, neighbors, clergy, employers, coaches, and more. In a mitigation report, the object is to present to the deciding individual or body a vivid picture of the individual that presents the individual in a sympathetic light and provide context for the crime committed or show it to be out of character. Interviewing people outside of the family can provide information about the individual’s ties to the community, faith, and work ethic. The same guidelines presented above for interviewing the subject are employed when interviewing witnesses. Just as with the subject, witnesses to be interviewed should be informed of the purpose of the interview and the limits of confidentiality. Witnesses should be advised that all of their statements may be used in a report and become part of a public judicial proceeding.

11.10  Regret, Remorse, and Rehabilitation It is important that the individual exhibit regret and remorse for the crime committed and show the rehabilitation efforts undertaken to prevent such an occurrence from happening again. Alternatively, the individual can demonstrate how the actions taken were out of character and that the crime committed was not due to evil or malicious intentions. Factors to take into account include: the age of the individual at the time of the commission of the crime (i.e., was it an act of adolescence impulsiveness or poor judgment?); the role played in the commission of the crime (i.e., minor role); were the circumstances of the crime rare and unlikely to occur again; was there a mistake in the belief of the legality of the action; was the individual coerced into taking part in the crime; was the crime committed in the aid of another (i.e., stealing medicine for a sick relative); does the individual suffer from a mental disorder (i.e., psychosis); was the crime committed in the heat of passion (i.e., abused spouse kills abusive spouse to escape further abuse).

Adam Walsh Cases On July 27, 2006, President George Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006, (the Adam Walsh Act).8 Adam Walsh was a 6-year-old boy who was kidnapped on July 27, 1981 while shopping with his mother

 Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109–248. 120 Stat.

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at a Sears department store mall in Hollywood, Florida. After a four-day widespread search, the police failed to find the boy. About 2 weeks later, some fishermen found Adam’s severed head floating in a drainage canal 120  miles from the site of the kidnapping. His body was never found.9 In response to this and other high-profile crimes, Congress passed the Adam Walsh Act “to protect the public from sex offenders and offenders against children… [t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.”10 Title IV of the Adam Walsh Act, “Immigration Law Reforms to Prevent Sex Offenders from Abusing Children,” contains two provisions that amend the immigration law to (1) prohibit U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition on behalf of any immigrant (referred to in the statute as the “beneficiary”), and (2) bar U.S. citizens convicted of these offenses from filing nonimmigrant visa petitions to classify their fiancé(e)s, spouses, or minor children as eligible for “K” nonimmigrant status.11 A petitioner will be deemed ineligible unless the Secretary of Homeland Security determines, in his or her sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary or any derivative beneficiary. A derivative beneficiary is a foreign national who cannot be directly petitioned for, but who can follow-to-join or accompany the principal beneficiary based on a spousal or parent–child relationship12 (i.e., the foreign national is the mother of a child not related to the petitioner. If the foreign national is granted status in the United States, she could eventually petition to bring her child into the United States). An application that involves an Adam Walsh Act scenario is a matter in which the person who would be the subject of the forensic psychological mitigation is not the beneficiary but the petitioner on behalf of the immigrant. This type of case requires a two-step process: first, before an application for the foreign national will even be considered by the adjudicator, the qualified relative must overcome the hurdle of the conviction. The petitioner bears the burden of proving that he or she poses no risk to the beneficiary or to any derivative individual.13 In addition, the petitioner bears the burden of proving “beyond any reasonable doubt” that he or she poses no risk to

9  Almanzardec, Y (2008). 27 Years Later, Case Is Closed in Slaying of Abducted Child. New York Times. https://www.nytimes.com/2008/12/17/us/17adam.html?auth=login-smartlock. Accessed 7 Oct 2019. 10  Adam Walsh Act, 120 Stat. at 587. 11  “U.S. immigration law allows a U.S. citizen to petition for a foreign national fiancé(e) to obtain a K-1 nonimmigrant visa to travel to the United States and seek admission. Within 90 days after being admitted as a K-1 nonimmigrant, the foreign national must enter into a bona fide marriage with the U.S. citizen…” https://www.uscis.gov/greencard/fiancees. Accessed 7 Oct 2019. 12  USCIS. https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Electronic%20 Reading%20Room/Applicant%20Service%20Reference%20Guide/Permanent_Residents_Fam. pdf 13  Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014).

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the safety and well-being of the beneficiary in order to overcome this statutory ineligibility.14 The decision is at the sole discretion of the Secretary of Homeland Security.15 Second, only after a positive finding by the adjudicator of the eligibility of the petitioner can the application move on to the issue of the foreign national’s status. In many cases, there are not any other available qualified relatives to file a petition on behalf of the immigrant and in order for the immigrant or foreign national to submit a valid application they must rely on the petition of a family member convicted of a crime. These are difficult cases, maybe the most difficult of all immigration matters, but they are not 100% hopeless. A well-prepared mitigation assessment and report is not only an opportunity for the petition to even be considered, it is an absolutely necessary and vital part of the application. The qualified family member petitioner who has been convicted of a specified offense against a minor is not just prohibited from filing on behalf of a minor child but is prohibited from filing on behalf of “any” beneficiary including: a spouse; fiancé; parent; unmarried child; unmarried son or daughter over 21 years of age; an orphan; a married son or daughter; a brother or sister; and any other individual with whom the petitioner would be deemed a qualified relative. The term “specified offense against a minor” means an offense against a minor (defined as an individual who has not attained the age of 18 years) that involves any of the following: (A) An offense (unless committed by a parent or guardian) involving kidnapping; (B) An offense (unless committed by a parent or guardian) involving false imprisonment; (C) Solicitation to engage in sexual conduct; (D) Use in a sexual performance; (E) Solicitation to practice prostitution; (F) Video voyeurism as described in section 1801 of Title 18, United States Code; (G) Possession, production, or distribution of child pornography; (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or (I) Any conduct that by its nature is a sex offense against a minor. An adjudicator, once it is concluded that the petitioner was convicted of a crime as enumerated in the statute, must make a determination as to whether the petitioner poses any risk to his or her intended beneficiary. The adjudicator will undertake this by considering all known factors that are relevant to determining whether the petitioner poses any risk to the safety and well-being of the beneficiary. In deciding whether a petitioner has been “convicted,” for the purposes of these proceedings, the adjudicator is guided by the decision in the Matter of Calcano de Millan whereby the BIA ruled, “a United States citizen petitioner will be considered

 Gebhardt v Nielson, 879 F.3d 980 (9th Cir. 2018); Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014). 15  Ibid. 14

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to have been ‘convicted’ of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”16 The factors included in an adjudicator’s determination of risk are, but are not limited to: –– The nature and severity of the petitioner’s specified offense(s) against a minor, including all facts and circumstances underlying the offense(s) –– The petitioner’s criminal history –– The nature, severity, and mitigating circumstances of any arrest(s), conviction(s), or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary –– The relationship of the petitioner to the principal beneficiary and any derivative beneficiary –– The age and, if relevant, the gender of the beneficiary –– Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another –– The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition As if this wasn’t making these matters difficult enough, adjudicators are instructed to “…automatically presume that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.”17 The petitioner carries the burden throughout the proceeding to rebut and overcome the presumption of risk by providing credible and persuasive evidence of rehabilitation and any other relevant evidence that proves, beyond any reasonable doubt, that he or she poses no risk to the intended child beneficiary. In those cases in which none of the intended beneficiaries or derivative beneficiaries are minors, the adjudicator must closely examine the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary.

 Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017).  USCIS Adjudicator’s Field Manual Policy Manual. 21.2 Factors Common to the Adjudication of All Relative Visa Petitions. Adjudicator’s Field Manual—Redacted Public Version\Chapter 21 Family-based Petitions and Applications. \ 21.2 Factors Common to the Adjudication of All Relative Visa Petitions. Accessed 7 Oct 2019.

16 17

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The petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary(ies). The petitioner’s application must include whatever evidence and legal argument the petitioner wants USCIS to consider in making its risk determination. The USCIS Policy Manual directs the adjudicator to look for the following evidence (this is not an exhaustive list): –– Certified records indicating successful completion of counseling or rehabilitation programs –– Certified evaluations conducted by licensed professionals, such as psychiatrists, clinical psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification –– Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services –– Certified copies of police reports and court records relating to the offense (the court records must include the original indictment or other charging document, any superseding charging document, any pre-sentencing report, and the conviction judgment) –– News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions18 Unless the adjudicator can conclude, based on the evidence, that the petitioner poses no risk to the beneficiary, the adjudicator must deny the petition and clearly articulate the factual basis for the determination. If the adjudicator is uncertain as to whether the petitioner poses no risk to the beneficiary, or if the adjudicator is finding it difficult to articulate the factual basis for the denial, the adjudicator is advised to consult with his or her supervisor and/or USCIS counsel. Oh, there is one more hurdle. If the adjudicator finds that the petitioner does not pose a risk of harm to the beneficiary, that adjudicator must seek the “guidance and direction” of the USCIS Headquarters, Regulations and Product Management Division. “Adjudicators are prohibited from exercising favorable discretion in such instances without the consent of USCIS Headquarters.”19

 Ibid.  USCIS Adjudicator’s Field Manual Policy Manual. 21.2 Factors Common to the Adjudication of All Relative Visa Petitions. Adjudicator’s Field Manual—Redacted Public Version\Chapter 21 Family-based Petitions and Applications. \ 21.2 Factors Common to the Adjudication of All Relative Visa Petitions. Accessed 7 Oct 2019.

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11.11  Psychological Assessment In addition to what has been previously discussed, when conducting the psychosocial assessment in an Adam Walsh Act case, the forensic psychologist should look for and report about issues concerning the petitioners behavioral and emotional adjustment, personality characteristics, issues in dealing with anger (if any), level of constraint and impulse control, externalizing behaviors, and their relationships with others.

11.12  Possible Assessment Tools These are some of the more popular assessment tools used in an Adam Walsh Act assessment: –– –– –– –– –– –– –– –– –– ––

MMPI-2 RF Personality Assessment Inventory (PAI) State-Trait Anger Expression Inventory 2 (STAXI-2) Static-99R (for adult male sexual offenders) Static-2002R (for adult male sexual offenders) Risk Matrix-2000 Rapid Risk Assessment for Sexual Offense Recidivism Stable-2007 Acute-2007

11.13  O  ther Immigration Matters (i.e., Cancellation of Removal, Waivers) As discussed in previous chapters covering the “extreme hardship” and “exceptional and extremely unusual hardship” cases, a forensic psychological assessment could be key to receiving a favorable decision from the Court. Sometimes the cases involve one or more criminal convictions which could bring about a negative outcome to the case. A criminal mitigation report in this instance would be required if the matter were to be successfully defended. Under the federal law, a cancellation of removal proceeding may be brought on behalf of a legal permanent resident or non-legal permanent resident under USC §1229b. Cancellation of removal; adjustment of status must meet the following conditions: “(a) Cancellation of removal for certain permanent residents The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien:

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(1) has been an alien lawfully admitted for permanent residence for not less than 5 years (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony (b) Cancellation of removal and adjustment of status for certain nonpermanent residents (1) In general The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien: (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”

The relief sought is discretionary with the Court which means that there is a window of opportunity to present evidence to counter a negative decision. It has been held that a Court can take the following favorable factors into consideration when deciding cancellation of removal matters: –– family ties within the United States –– residence of long duration in this country (particularly when the inception of residence occurred at a young age) –– evidence of hardship to the respondent and his family if deportation occurs –– service in this country’s armed forces –– a history of employment –– the existence of property or business ties –– evidence of value and service to the community –– proof of genuine rehabilitation if a criminal record exists –– and other evidence attesting to a respondent’s good character20 It should be noted that the Court may also take adverse factors into consideration including: –– the nature and underlying circumstances of the grounds of exclusion or deportation (now removal) that are at issue –– the presence of additional significant violations of U.S. immigration laws –– the existence of a criminal record and, if so, its nature, recency, and seriousness –– the presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.21

 Matter of C-V-T, 22 I. & N. Dec. 7 (BIA 1998). Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). 21  Ibid. 20

Chapter 12

Report Writing and Testifying in Court

Writing a forensic report for submission to a court or decision-maker is quite different than writing a clinical report. While there may be some similarities, it is important to remember that the purpose, focus, and audience of the assessment and report are not the same. Clinically, psychologists conduct assessments to examine and diagnose specific problem areas and guide the administration of treatment. The report is geared towards a professional mental health provider (i.e., psychologist, psychiatrist, neurologist) for the purpose of targeting therapy to the individual needs of the patient. A forensic report, written for use in an immigration proceeding (or any litigation, for that matter), is conducted to answer a legal question that is not necessarily always about the subject of the litigation and is focused on an audience not generally familiar with psychological concepts and constructs and may have preconceived/misconceived ideas about what is “normal” under certain conditions (i.e., some trauma victims experience memory gaps). The audience for the report consists of individuals in the legal system who are charged with making important decisions that will affect the foreign national’s life and of those around him or her. The report is generally about the foreign national or their qualified relative and who they are, as opposed to what they need in terms of clinical help. That being the case, the forensic report must be written in a language that is easily understandable (i.e., no jargon), well-formatted, logical, and well-written. Put simply, the forensic evaluation goes beyond simply reporting clinical findings and presents a telling story about the subject of the assessment. It must be a narrative about an individual or individuals’ life and circumstance as pertain to the legal referral question. In my experience, there are many judges or decision-makers who do not read the entire report no matter how well constructed. By their nature, forensic reports can run many tens of pages and if written in jargon the lay person may just skip over the “boring parts” (remember when you were in grad school and you would skip over the “Methods,” and maybe some other, sections of long articles assigned for reading?) and not appreciate the analysis and conclusions drawn. Part of the job is to make it as easy as possible for everyone to read and absorb while not © Springer Nature Switzerland AG 2020 R. S. Meyers, Conducting Psychological Assessments for U.S. Immigration Cases, https://doi.org/10.1007/978-3-030-49868-9_12

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giving up any of the professional and expert necessities. Telling a compelling story of the subject individual supported by the evidence (i.e., assessments, documents, interviews) will allow for greater understanding, sympathy by the reader and lead to more positive outcomes. Unlike the clinical report (in most cases), the audience for the forensic report is more likely to be hostile to the conclusions drawn by the psychologist. As stated earlier, the legal world is hostile towards psychologists (and experts, in general) and has, as its goal, the mission of making the expert look stupid. Once the forensic report is exchanged as part of the evidence in the case it is fair game for the opposition and its experts to look for and accuse the forensic psychologist of presenting a report with errors, biases, or lack of substance. If the decision-maker is convinced that the forensic report is of no value, it can have serious consequences on the people involved—in the immigration case it can mean the difference between a family staying together or being split apart. In this chapter, we will look at a sample outline for a report and what the forensic psychologist needs to be aware of in order to present an admissible and effective evaluation. There are many opinions from many different forensic practitioners as to what a report should look like. Be aware that this chapter is limited to the use of reports in an immigration matter and is also presented in the style which I have developed over time from experience and reviewing published materials. Depending on the issue involved, different subheadings may be needed in order to present the report in a logical manner. We begin with the very basics—a report must look professional. That sounds odd, right? How else would one expect a report from a psychologist to appear? Reports should be printed in Times New Roman, 12 point font. Reports should be carefully proofread before submission. Many reports I have reviewed contained multiple misspellings, typographical errors, “he” instead of “she” or “she” instead of “he” (I even found a few with the wrong name included in the report—these of course indicate that the writer was simply cutting and pasting from other reports), poor grammar, unreadable sentences filled with jargon, illogically flowing sentences, and the like. I know that when I am hiring an employee, if I receive a cover letter or curriculum vitae with any of the errors I just listed that entire application goes in the circular file. It is an indication of unprofessionalism, sloppiness, and a disregard for detail. In other words, it gives an immediate negative impression and if not discarded, is severely discounted. Not a good start and that is even before getting to the substance of the report! Strict attention to detail is important. Grisso (2010) conducted a study in which 62 forensic reports written by forensic psychologists nationwide were reviewed and critiqued by a panel of advanced forensic mental-health practitioners. It was found that there were ten common errors that existed across these reports. The results of that study are listed below: “Ten Most Frequent Faults in Forensic Report Writing

1. Opinions without sufficient explanations 2. Forensic purpose unclear 3. Organization problems

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4. Irrelevant data or opinions 5. Failure to consider alternative hypotheses 6. Inadequate data 7. Data and interpretation mixed 8. Over-reliance on single source of data 9. Language problems 10. Improper test uses”1

12.1  Cover Page

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES DEPARTMENT OF HOMELAND SECURITY LOCATION In the Matter of NAME OF FOREIGN NATIONAL, Respondent Case number         Before Judge JUDGE’S NAME        Forensic Psychological Evaluation of             SUBJECT

The cover page needs to contain some readily identifiable information so that the reader knows immediately what the document is and which case it belongs to. Judges receive a multitude of documents each day. While all documents should be placed in and travel with the case folder, we all know that papers are misfiled, documents are separated from their folders for one reason or another or wind up buried on someone’s desk. Placing the identifying information up top where it is easily seen makes everybody’s life easier and makes it more likely that the forensic report will wind up where it is supposed to be. The forensic report cover page (and first page) should appear on professional letterhead which includes the name of the reporter (individual or practice name), address, telephone number, facsimile number, and email address. Underneath should appear the court and its location that the case is appearing in, the name of the case (which may be different than the subject’s name), and the Judge’s name. Then the phrase: Forensic Psychological Evaluation of SUBJECT. I like to personalize the report from the get-go by using photographs of the subject on the cover page together with a Table of Contents. Depending on the matter, I try to put at least one portrait photograph of the individual and one family photograph on the page. Other appropriate photographs may be added but one must be

1  Grisso, T. (2010). Guidance for improving forensic reports: A review of common errors. Open Access Journal of Forensic Psychology, 2, 102–115.

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careful of appearing phony (i.e., a staged picture of the individual working at a soup kitchen) or causing overkill in the mind of the reader. The photographs must be clear (in focus, contrast, well-lit, etc.), be recent (the subject looks like this now) and not contain any objectionable images (i.e., holding a drink, holding a child in a head lock, standing in front of a porn shop) (Yes, when asked for a photograph subjects have turned over these and other pictures which left me scratching my head!). Each photograph should have a brief description written beneath it which includes, at a minimum, the name of the individual and any others appearing in the photograph and their relationship to the subject. If relevant, a description of what the photograph is about (i.e., Yes—Subject participating in U.S.  Army training; No—Subject at Aunt Tillie’s birthday party). The Table of Contents should include all headings, subheadings, and important information.

12.2  Preliminary Information Page This page is printed on letterhead. Name: Jane Doe Age: Gender: Date of this Report: Interpreter? Yes  No

Date of Birth: Date(s) of Assessment: Examiner: Interpreter Name:

This section begins with important identifying information. It is important that all of the information as shown above be included. All dates the subject appeared for assessment should be listed in this section. Dates of interviews with witnesses can be recorded below.

Reason for Referral This is a brief statement, two or three sentences, explaining why the Subject came to see you. The first sentence establishes the source of the referral (i.e., SUBJECT was referred to this office by his/her attorney, ATTORNEY’S NAME; or SUBJECT is self-referred having found this office while searching the internet). The second sentence establishes why the subject came to your office (i.e., SUBJECT is a foreign national in the United States who requested this evaluation in support of her application to extend her visa without the joint application of her husband based upon spousal abuse/domestic violence.).

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Referral Question Generally, the referral question is one sentence (maybe two) that establishes the focus of the assessment. Many times the subject will arrive at the office after simply being told to “show up” by the attorney. Other times the subject will appear with a referral question which is too vague. It is advised that the forensic psychologist not determine the referral question on her or his own. It is important to coordinate the referral question with the subject’s attorney before beginning the assessment to insure that the evaluation will focus on the theory of the case as established by the attorney. Example: Was SUBJECT the victim of battery or extreme cruelty by her spouse and, if so, what impact, if any, did the abuse have on her? Example: Would the deportation of FOREIGN NATIONAL cause “extreme hardship” for his spouse, SUBJECT?

Informed Consent Forensic evaluations do not provide the same privacy protections as clinical evaluations or psychotherapy. One would think that the confidentiality and privacy parameters of the legal case would be the responsibility of the foreign national’s attorney but increasingly issues have arisen where the subject of the assessment has been told nothing including their right to remain silent (not answer questions) when asked about matters that may be incriminating.2 This section must describe the informed consent provided to the subject of the evaluation. This section would then state something like the following: SUBJECT was presented with an Informed Consent for Forensic Evaluation document. The contents of this document, including the limitations to confidentiality and privacy, were reviewed and explained with SUBJECT by this author. SUBJECT stated he/she understood the contents of the Informed Consent and executed the document before beginning this evaluation. The executed document is on file with this office.

Abstract of Findings This section should contain two paragraphs. The first paragraph is a brief statement of the facts of the case. The second is a brief statement of the findings based upon the evaluation: 2  Foote, W. E., & Shuman, D. W. (2006). Consent, disclosure, and waiver for the forensic psychological evaluation: Rethinking the roles of psychologist and lawyer. Professional Psychology: Research and Practice, 37(5), 437–445. https://doi.org/10.1037/0735-7028.37.5.437.

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SUBJECT is a 24-year-old, Country of Origin female who came to this country to wed a U.S. citizen/legal permanent resident male who made various promises to lure her from her home to marry him. Almost immediately upon her arrival, she discovered that the promises made would not be kept. Soon afterwards she was subjected to physical, emotional, and psychological abuse by her spouse and his family. Destitute and alone, she felt hopeless in the situation until she finally escaped from the situation. My examination of Subject suggests that as a result of her experience of physical, emotional, and psychological abuse at the hands of this spouse and his family, she was a victim of Intimate Partner Violence and suffers post-traumatic stress disorder and depression.

Preliminary Statements The report should begin with a statement from the forensic psychologist setting forth the general purpose for the report, the forensic psychologist’s dependence upon third-party information and that the limits of confidentiality have been discussed with the subject. Below is an example of the language to be included in this section: The following report is a forensic psychosocial evaluation of SUBJECT.  The purpose of this report is to provide the Court with a better understanding of the relevant background issues, personal and family history, events and mental health issues affecting SUBJECT.  This report is prepared specifically for use in a legal proceeding. This report is based upon the documents and other records reviewed and the individuals with whom this reporter communicated and as such is dependent upon the integrity of those documents and individuals. I reserve the right to modify or add to this report in the event of omissions, inconsistencies, or new information which should become available. Prior to commencing any assessment, SUBJECT was informed of the limits of confidentiality, recipients of this report (by this reporter), that this may become a Court document, that this evaluation is not for treatment, mandatory reporting requirements, and the right to not answer questions posed.

12.3  Expert Qualifications In this section the forensic psychologist, in one or two paragraphs, describes his or her qualifications to be making this report and providing expert opinions. As discussed earlier in this book, an expert must show that they have the necessary knowledge, skills, and experience in order to be deemed an expert by the Court. Simply having a doctorate is not sufficient. Below is a list of items that should appear, minimally, in this section. The section ends with the statement, “Please find my full curriculum vitae attached at the end of this report as Appendix ‘’.”

12.4  Beginning of the Report

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Doctoral Degree, Conferring Institution Clinical Training Professional experience Experience in: (include only those areas you can attest to) –– immigration matters –– diagnosing and treating trauma –– documenting evidence of torture Training courses relevant to immigration matter Publications Presentations

12.4  Beginning of the Report Sources of Information This section is a listing of all pieces of information used to make the evaluation. Everything on this list should appear within the body of the report and vice versa. Each listed document should include its source and date (i.e., Police department report, 61st Precinct, Anywhere, USA dated January 1, 2010). This section can be broken down into individual subheadings for ease of review. Below is a list of potential sources of information. Interviews All narratives of the interviews should include the date(s), time(s), and length of time for each. Forensic Interview with SUBJECT Witness Interview with JOHN DOE Witness statement from JANE SMITH Documents Examples of documents which may be important to gather and review include: Police Department reports Medical record from XYZ Hospital Psychiatric record from ABC Substance abuse treatment record from CDE Psychological testing results from Dr. DOCTOR

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Education records from UNIVERSITY/HIGH SCHOOL/Other Occupational records Military records Criminal records Histories of detention and incarceration Personal notes Diaries Computer files Cellphone records and text messages Investigation reports Litigation record History of lawsuits Depositions Financial institution records

SCHOOL/ELEMENTARY

Assessments The forensic psychologist must use care in choosing the assessments to be administered to the Subject. Questions for the forensic psychologist to ask her- or himself include: Is this a self-report or projective test? Only using self-report assessments would most likely lead to a weak overall evaluation and report. Most decision-makers (and the experts from the opposition) will question the overall validity of an evaluation that consists solely of self-report assessments. Has this assessment been validated and normed? Has the assessment been normed on a population in which the Subject is a member? The reliability and validity of the assessments used can and will be a subject for scrutiny and cross-­ examination by the opposition. While it isn’t necessary to include validity research in the report, the forensic psychologist should be prepared to present such evidence if called to question. If the forensic psychologist uses an assessment that has not been validated or normed, then there must be a showing as to why this assessment was used and the reasoning for its application in this evaluation. What do the results of such an assessment provide? Is the assessment designed to provide information which is consistent with what is being asked in the referral question?

12.6 Allegations of … (Extreme Hardship, Battery or Extreme Cruelty, Etc.)

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12.5  Background Information Here we begin by providing some general information about the subject. This should include the age, gender, country of origin (if relevant), citizenship (if relevant), occupation, education, family composition, and any other pertinent information.

Subjects Personal/Psychosocial History Here is where you tell the story of the Subject which brought him or her to this point. Only parts of the story relevant for this evaluation should be included. For example, in a VAWA case this is where the story of how the Subject met the abuser, was brought to the United States, and what happened following arrival.

Family History This section would include any relevant family history that would contribute the issue being asked to determine in the referral question.

Psychological/Medical History This is a discussion of the psychological, emotional, behavioral, medical (if an issue) history of the Subject prior to the allegations which gave rise to this application. The information presented in this section will be contrasted in the Discussion section with the allegations and findings from the current assessment administration (which should provide information about the current state of the Subject).

12.6  A  llegations of … (Extreme Hardship, Battery or Extreme Cruelty, Etc.) This section presents the Subject’s claims in the application. A detailed, narrative account of the subject’s experience(s) including physical, psychological, emotional injuries, symptoms, and disabilities. Are the symptoms acute or chronic? How has this affected the Subject’s life?

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12.7  Appearance and Behavioral Observations This is a few paragraphs that describe the current presentation of the subject as observed by the forensic psychologist under the assessment conditions. It is understood that the Subject may present him- or herself on “best behavior” based upon the nature of the assessment. Similar to concerns regarding self-report assessments in which the subject may respond in a way more geared for the desired result rather than giving accurate answers, the appearance and presentation poses the same questions. The forensic psychologist must be careful to present pure observational information and not “fill in the blanks.” By this I mean, as an example, it is one thing to say that the Subject presented “poorly dressed and unkempt” as opposed to, the Subject arrived to the office “in a manner which exaggerated his claims by presenting himself unwashed and in tattered, unclean expensive clothing despite alleging that he was destitute.” If, after a number of meetings and the interpretation of the assessments, it appears that the Subject may be trying to present an exaggerated or false image then that opinion can be discussed in the discussion section supported by the evidence. There should be no opinions offered in any section whose purpose is to present evidence. All opinions of the forensic psychologist should appear in the discussion section and rely on the evidence previously presented and then again in the conclusion section. Also included in this section should be information regarding whether the Subject appeared at assessment sessions alone or accompanied by others (provide the name and relationship of the individual(s) to the Subject), whether there was anyone else present during the sessions, etc. If there was interaction between the Subject and any third party during the assessment sessions that should be included, as well (i.e., multiple times during the interview the Subject spoke with Mr. X in their language, a language which this reporter does not comprehend. The following are examples of the questions in which the Subject engaged in discussion in a foreign language…).

12.8  Assessment Administration Describe the assessment sessions including the dates, times, and lengths of time.

12.9  Results of the Assessments In the Results section, the forensic psychologist must bear in mind that numerical results are mostly meaningless or misleading to the untrained reader.

12.10  Supporting Research

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12.10  Supporting Research This section is basically a brief literature review of the supportive research based upon the referral question. For instance, in VAWA cases a discussion of psychological effects from intimate partner violence would support and help strengthen the forensic psychologist’s interpretation and opinion. It is important to be up to date on the research and the acceptance of the research findings in the field. There is some dispute in the forensic community about adding this section to a report. I like this section because one of the questions that will undoubtedly be asked if examined or cross-examined in a litigation matter is whether your opinion is based on “reasonable degree of psychological certainty” or a “reasonable degree of scientific certainty.” What the heck does that mean? First, it’s a legal term, not a scientific one. Second, different States may have an accepted definition for this term so it would be prudent to ask the attorney for the local standard. If a standard does exist, then the forensic psychologist should take that into account when deciding on the assessments to use, the interpretation, and ultimate opinion. It is recognized that the inability of the forensic psychologist to commit to a minimal degree of certainty can result in the report (and testimony) being excluded as evidence in the case.3 The concept behind the use of this phrase is to eliminate expert reports and testimony that are speculative in nature. However, while that is an understandable concern, there is no scientific basis, in psychology or medicine, to support such a standard nor is it used in everyday practice. Modern legal commentators have stated that the standard for admitting expert psychological evidence and testimony only requires that the expert’s opinion be a reasonable one that is based upon the available evidence.4 To cite the position statement from the National Commission on Forensic Science: “An expert’s certainty in a conclusion may be an appropriate concern in a particular case, and that certainty is actually a statement of confidence distinct from the likelihood of the conclusion itself. For example, an expert may be very certain that “X” is the most likely cause of condition “Y.” As well, depending on the nature of the case, a court may determine that for the testimony about the existence of a fact to be sufficiently helpful, the witness must indicate that, in the expert’s judgment, the fact is at least more probable than not (or meets some other threshold level of certainty). Nonetheless, the terminology at issue – reasonable degree of scientific certainty – in no way serves such a function.”5

Based upon that recommendation, in 2016, the U.S. Department of Justice, by memorandum issued by the U.S. Attorney General, ordered its scientists to refrain

3  Appelbaum, P. S., and Gutheil, T. G. (2007). Clinical handbook of psychiatry and the law (4th ed.). Williams & Wilkins Co. 4  Kaye, Bernstein and Mnookin, (2011) The new Wigmore: A treatise on evidence, §1.5.2(c), 2d Edition, 2011 New York: Aspen Pub. Co., 2015 Cumulative Supplement. 5   National Commission on Forensic Science. https://www.justice.gov/archives/ncfs/page/ file/641331/download. Accessed 17 Nov 2019.

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from using the term “reasonable scientific certainty” when reporting or testifying.6 It should be noted that the DOJ and the U.S. Attorney General run the immigration courts. State and Federal courts still use the “reasonable scientific certainty” language; however, its use is presently under review by the U.S.  Courts Advisory Committee on Rules of Evidence.7 In 2017, U.S. Attorney General Jeffrey Sessions failed to renew the charter for the Commission on Forensic Science. The fate of “reasonable scientific/psychological certainty” in litigation is still up in the air. It is advised to check with the attorney handling the case for the latest evidentiary rules. That said, it is important to be able to support any opinion on existing research and have some degree of certainty in that opinion. Bear in mind that any opposition reports or testimony will find an alternative opinion that is based on some degree of certainty. There will almost always be material out there that will say something different from the opinion proffered. Explaining the quality of the research presented is as important as presenting opposing research and explaining why it should be disregarded (i.e., the vaccination vs anti-vaccination argument).

12.11  Interpretation and Discussion of Findings Diagnosis A statement of the diagnosis. Decision-makers like to see things in recognizable form so use of DSM-V/ICD-11 diagnoses, where available, would be important.

Discussion Here is where the forensic psychologist analyzes all of the information to formulate the opinion. There should be no new evidence introduced in this section as all of the available evidence would have been presented in the previous sections. Are the results of the assessments consistent? Was there an indication of the existence of a psychological issue? Are the results indicative of a psychological issue that could be expected within the cultural and social context of this subject? Does the psychological issue pre-date the allegations? Post-date the allegations? An exacerbation of a preexisting condition? Are there stressors interfering with the Subjects mental health? Did the Subject suffer from any physical injuries that may be affecting their 6  Lynn, L. (2016) Memorandum dated September 6, 2016. Recommendations of the National Commission on Forensic Science. https://www.justice.gov/opa/file/891366/download. Accessed 17 Nov 2019. 7  Advisory Committee on Rules of Evidence (2019). https://www.uscourts.gov/sites/default/files/ advisory_committee_on_rules_of_evidence_-_final_draft_agenda_book.pdf

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mental or emotional health (i.e., head injury that may have caused a traumatic brain injury). Remember that the most often cited problem with forensic psychological reports is a lack of sufficient explanation to support the decision. Blanket statements or statements without any evidentiary or scientific support leave the report an empty shell that will have no legal import on the case.

12.12  Conclusions and Recommendations This section can begin with a listing of the diagnoses followed by a statement such as: “Based upon the findings, the following conclusions and recommendations are made for…”

This is a summary statement of the opinion(s) provided in the Discussion section citing the consistency between all sources of evidence presented in the prior sections.

Recommendations In this section, the forensic psychologist can list any recommendations for care for the subject.

12.13  Appendix Include copies of any documentary evidence used in support of this report including relevant photographs (i.e., showing injuries, imprisonment). Any materials included in the Appendix must have been cited in the sections above and reference to the appropriate Appendix identifier. The final Appendix exhibit should be the forensic psychologists curriculum vitae.

12.14  Preparing to Testify in Court In Chapter 5, we discussed the legal requirements for an expert witness to be qualified to testify in Court. In this section, we will discuss what you should be aware of in preparing to testify as an expert. Because of the variation of evidence laws and rules throughout the country, we will focus on the Federal Rules here. Forensic psychologists are advised to confer with the attorney handling the matter regarding the applicable rules in the jurisdiction in which the case is being heard.

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It is the purpose of the forensic psychologist as an expert witness to offer a professional opinion on a subject that is beyond the knowledge or understanding of the lay person. Specifically, the opinion of the forensic psychology will be admitted as evidence if the “scientific, technical, or other specialized knowledge will help the trier of fact [jury or judge] to understand the evidence or to determine a fact in issue.”8 As the federal rule states, that opinion must not only be presented but also defended based upon a sufficient amount of information and valid ­scientific/professional evidence. Appearing in court, sitting on the witness stand, and being subjected to questioning is not easy. The expert witness must be prepared to face sometimes difficult and aggressive questioning from attorneys and the judge whose goal is either to support the findings or expose the expert as an idiot. They will do this by attacking the expert’s personal reputation and credentials, the conduct of the expert’s investigation, the manner in which the expert performed the assessments, the choice of assessments employed, the science upon which the expert supported the use of those assessments, and more. A witness is exposed to three types of questioning while testifying in a case. Direct examination is when the attorney for the party introducing the expert asks questions to put forth the opinion of the expert. This part of the testimony should be accomplished by open-ended questions that elicit a narrative response. Cross-examination is conducted by the attorney for the opposing party after the expert has already completed the direct examination. On cross-examination the attorney is permitted to ask leading questions of the expert—the attorney on direct examination is not permitted to ask these types of questions. Leading questions are those in which the answer is suggested, call for a yes or no answer, or contain the answer within the question. The third type of questions are those asked by the Judge. The Judge can ask questions at any point during either direct- or cross-examination and can basically ask any question he or she wishes. Of course, all questioning whether on direct, cross or by the Judge, is subject to objection by any party. Each of these types of questioning is conducted with the purpose of trying to obtain some type of information or to discredit it.

Preparing for Testimony The first rule of testifying as an expert witness is—Be Prepared. This may seem like nothing but common sense but many times I have seen experts appear for trial and what they thought was “being prepared” fell far short. What should the forensic psychologist do in order to “Be Prepared?” One huge mistake made by some experts is their belief that they are smarter than everyone in the room. While that may at times be true, as an outsider the forensic

 Federal Rules of Evidence Sect. 702. Emphasis added.

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psychologist is performing in a foreign arena—the visiting team, sort of speak—a situation which already places the expert at a slight disadvantage. A well-prepared attorney with a solid line of questioning can easily “box-in” even the most intelligent individual. And even if not, appearing haughty will most likely create a negative impression on any decision-maker and thus reduce the credibility of the witness. It is vital to successful expert testimony to coordinate the direct examination with the attorney offering the expert as a witness and to consider questions that may arise on cross-examination. This is to prepare both the attorney and the expert for the clear presentation of the opinion without any surprises. This is not an unethical practice so long as the presentation and opinion of the expert is not influenced by the attorney—the opinion must remain unbiased and is a topic which will certainly be addressed during cross-examination by the opposing attorney. The forensic psychologist should meet with the attorney, a prepared presentation in hand which logically explains the opinion of the expert and how it unfolded. Example on direct examination: Attorney: Doctor, did you prepare before coming to testify today? Forensic Psychologist: I did. Attorney: And what did you do to prepare for your testimony? Forensic Psychologist: I reviewed all my records in the matter including my report. I checked my sources and I met with you. Attorney: Can you describe the meeting you had with me? Forensic Psychologist: Yes. We reviewed the questions you were planning on asking me today and we discussed the best order to ask them so that I can clearly present my findings. I also informed you of some new information I obtained after I had submitted my report. You also gave me some examples of questions I might be asked on cross-examination.

Example on cross-examination 1: Cross-examiner: Isn’t it true, Doctor that you met with Attorney X prior to appearing here today in order to discuss your testimony? Forensic Psychologist: I met to discuss the questions that I would be asked while on the stand and how I would present my assessment, investigation and findings so that the findings in my report will be easily understood. Cross-examiner: So, Attorney X told you what to say here today? Forensic Psychologist: No, sir. We only discussed the best way to present my investigation and findings. Cross-examiner: Which means he decided how you should present your testimony today? Forensic Psychologist: No, sir. We simply reviewed my findings and the clearest way to present them.

Example on cross-examination 2: Cross-examiner: Yes or no, Doctor. Isn’t it true that you met with Attorney X prior to appearing here today in order to discuss your testimony? Forensic Psychologist: I met to discuss... Cross-examiner: Your answer requires a simple yes or no. Forensic Psychologist: Yes.

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Cross-examiner: And at that meeting Attorney X “suggested” that you present your findings in a manner that was different than the way you were going to present your findings, correct? Yes or no? Forensic Psychologist: Well,... Cross-examiner: Yes or no? Forensic Psychologist: Yes. Cross-examiner: So, Attorney X told you what to say here today? Forensic Psychologist: No, sir. We only discussed the best way to present my investigation and findings. Nothing more. Cross-examiner: Objection. Move to strike. Attorney X: Your Honor, Cross-Examiner is badgering the witness. Further...

Qualifications as an Expert Before anything else, the forensic psychologist must show that they have the legal qualifications required to be admitted as an expert in the case. As discussed earlier, this is more than simply having a degree or a license to practice psychology. The forensic psychologist must be “qualified as an expert by knowledge, skill, experience, training, or education” in order to testify as an expert and present opinion testimony. While it is more common today for both sides to “stipulate” (agree) to the qualification of the expert, the opposing attorney always has the right to question the expert in an attempt to show that they do not possess the specialized knowledge required (and therefore prevent the expert opinion from being introduced into evidence). It is important to keep the curriculum vitae true without exaggeration—that is easy fodder for the opposing attorney to use to destroy credibility. The Internet contains lots of information that is easily accessible to anyone and is mostly fair game for use to attack credibility. Ultimately, the Judge or decision-maker will rule on whether the expert is qualified to give testimony in the case.

Reliability and Validity The opinion of the forensic psychologist depends upon whether the tests used in formulating the opinion were reliable and valid. The same must be true for the theories and procedures relied upon when forming the expert opinion. Federal Rule of Evidence Section 702 specifically requires that the testimony be based on sufficient facts or data, is the product of reliable principles and methods, and that the expert has reliably applied the principles and methods to the facts of the case.9 As we saw in Chapter 5, the Court in Daubert held that there are five criteria, not all of which must necessarily be met, in order to substantiate the expert’s opinion:  FRE 702.

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1. whether the theory or technique in question can be and has been tested using some accepted scientific methodology 2. whether it has been subjected to peer review and publication 3. whether its known or potential error rate justifies its use 4. whether the existence and maintenance of standards controlling its operation can be shown 5. whether it has attracted widespread acceptance within a relevant scientific community10 The prepared forensic psychologist is armed with the scientific resources to back up each stage of the assessment and opinion. Each test used must be backed up with the research to show that the test is reliable and valid, its use with the Subject was valid and that the results answered all or part of the question in issue. It is also important to show that the assessment was conducted according to the published protocol. There is a high likelihood that the opposing attorney will question the expert on the scientific support for each and every aspect of the forensic psychologist’s investigation and opinion formulation. The forensic psychologist must be prepared to answer questions regarding the use of assessment tools and whether their intended purpose matches the manner in which they were used. Most assessments measure the subject’s current (at the time of the assessment) levels of functioning or current emotional/psychological state. What time period does the case cover? Many times the report for an immigration case is submitted years before the case appears in a court or hearing room. It would be wise for the forensic psychologist to meet with the Subject(s) as the hearing date approaches to be sure that the information is up to date and accurate and to allow for any adjustment or changes to the opinion as presented in the submitted report. Since, on direct examination, the forensic psychologist will be asked to give a narrative, it is important to present the “story” of the examination, assessments, and opinion in a logical order. This is a good time for the forensic psychologist to present the “sufficient facts or data” to which were applied to reliable theories/principles. The forensic psychologist by this time has already submitted the written report containing all of the information, presumably in logical sequence, from which to draw from. If there is testimonial information not contained in the report or differs from the submitted, for whatever reason, it will certainly be brought up during the cross-examination and is important to be prepared to explain it. In fact, it would be wise to raise this, and other possible elements which run counter to the opinion of the expert, during direct-examination—which is why it is important to meet with the presenting attorney before testifying. It allows for the forensic psychologist to explain these differences in the manner desired by the expert rather than guided by the cross-examining attorney. The forensic psychologist must use procedures and assessments based on reliable principles from which the opinion is based. This means that the expert must be prepared to answer questions about the reliability and validity of any test employed 10

 Daubert v. Merrell Dow Pharmaceuticals, ibid.

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including its use on a Subject within the specific population from which they come (i.e., was the test, originally created on Caucasian subjects, standardized for Hondurans?). There is a high likelihood that questions regarding nomothetic versus ideographic application of test results may be asked. The same is true for any psychological theories upon which the forensic psychologist relied upon in drawing the opinion. This includes testifying about the credibility of the publication in which an article appears. There is an obvious difference between a research article appearing in the Psychological Review as opposed to Dr. X’s Blog. This is an extreme example but knowing that a publication is peer-­ reviewed and well-established is information that anyone can obtain. To use an extreme example, if the forensic psychologist bases an opinion on Madam Lasora’s tarot card reading that will be excruciatingly excoriated on cross-examination.

Jargon Do not ever use jargon, if possible. It is understood that professional and lay meanings of many words differ—sometimes greatly—and that the professional use of the term, amongst professionals, better explains the meaning. If the expert feels that some jargon is necessary to maintain professional integrity, then the jargon must be explained in understandable detail. For instance, “depression” is a term used commonly in lay terms which has the meaning of someone feeling down (as in “I’m feeling depressed today.”). Clinically, depression has an entirely different and more severe meaning. If a forensic psychologist is testifying and says that in their opinion the subject is clinically “depressed,” they must be prepared to thresh out the use of that term of art by explaining the details of “depression” in an understandable manner (i.e., this individual has: lost all interest in pleasurable activities, isolates for long periods of time, etc.). The expert must also be aware of the use of acronyms. In the profession we tend to use shorthand for describing many terms, such as “SAD” for seasonal affective disorder. Another psychologist might know what you mean if you say, “That patient suffers from SADs.” A lay person might just think that the individual being referred to is “sad” and that the psychologist doesn’t speak English very well.

Manner of Presentation Typically, testimony occurs in a court or hearing room. There is a judge, sometimes a clerk and officer, the attorneys and the parties. Everyone sees one another and interacts either directly or indirectly. Many times, in immigration matters, the expert will have the option of appearing by telephone. Some experts charge a lower fee if they testify by telephone. The theory behind the lower fee is that the forensic psychologist doesn’t have to travel to the hearing

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location and then sit around, mostly waiting, to be called to testify and only needs to be available for the exact time of the appearance. Personally, I do not like telephonic (or video) testimony and I charge the same amount (a flat morning, afternoon or all day fee) whether I am testifying in person or through a telephonic or video medium. I am charging for my time and expertise—a valuable commodity that I worked hard to achieve and work hard to maintain. [Something that has always bothered me about the psychology profession is how easily it discounts the value of our service—but that is a rant for a different publication.] I also want to discourage telephonic testimony—it is usually bad for the case and it has potential to be bad for professional reputation. Testifying in person allows the expert to present the evidence in a much more convincing manner—an important thing to do especially when in a jurisdiction where the foreign national starts off at a disadvantage or if appearing before a decision-­maker with a reputation for denying a foreign national’s petition. A presentation is more than just the words. There is a totality of elements which make a presentation either a success or a disaster. Body language, tone, reading the body language of others, reading the facial expressions around the room, picking up on the mood of the room, catching side comments and the like are powerful tools for the forensic psychologist to use in presenting their findings and opinions. If this were not true, then why testify at all? Simply present the report as submitted and be done with it, right? It contains all we need to know. Wrong. It is true that there are cases in which the report as written is submitted and the expert witness doesn’t appear at all. But in those matters where the expert does testify it is important that the strongest presentation be made—and that can only be done in person! There will be times when appearing telephonically or through video may be necessary or unavoidable. Economically, if the distance between the forensic psychologist and the hearing room is great and requires extensive travel (i.e., air travel) and overnight accommodations, this might be a financial burden which is beyond the ability of the client. Sometimes the opposition or the judge/decision-maker will insist on the presence of the expert to testify in the hearing/courtroom even though the expert is physically unavailable or far away. There are things to be wary of when testifying telephonically. When appearing in person everyone is looking at a living, breathing person who is moving around, making hand and/or body gestures, emphasizing a point with a facial expression or position of the eyes, adjusting the voice (volume, tone, emphasis) based upon the flow of the questioning and more. When appearing by telephone the forensic psychologist is a box (audio speaker) or at worst, a telephone being heard through the speakerphone. That is a pretty boring thing for the people in the hearing/courtroom to be looking at or listening to. Attention is more likely to wane, important parts of the testimony may be missed or not understood (the forensic psychologist will not see the confusion to be able to address it), and more. The quality of telephone connections, especially when on speakerphone and through cell phone, is notoriously imperfect and can make it difficult to understand

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every word said by the forensic psychologist (and heard by the forensic psychologist) further making the presentation less effective, even annoying. All in all, the most effective way to present the finding and opinion of the forensic psychologist is by testifying in person.

Appendix A

© Springer Nature Switzerland AG 2020 R. S. Meyers, Conducting Psychological Assessments for U.S. Immigration Cases, https://doi.org/10.1007/978-3-030-49868-9

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Appendix B Medical Certification for Disability Exceptions

USCIS Form N-648

Department of Homeland Security U.S. Citizenship and Immigration Services

OMB No. 1615-0069 Expires 12/31/2021

► START HERE - Type or print in black ink. Please read the instructions before examining the applicant and filling out this form. Only medical doctors, doctors of osteopathy, or clinical psychologists licensed to practice in the United States (including the U.S. territories of the Commonwealth of the Northern Mariana Islands (CNMI), Guam, Puerto Rico, and the Virgin Islands) are authorized to certify the form. While staff of the medical practice associated with the medical professional certifying the form may assist in its completion, the medical professional is responsible for the accuracy of the form's content. Failure to fully and accurately complete this form, including all applicable signatures, may result in the form being found insufficient. If you are using an interpreter during the examination (either in person or by phone), you must ask the interpreter the following questions and affirm their response: Do you certify that you are fluent in English and the following language,

,

Do you further certify that you will accurately and completely interpret all communications between the applicant and me (the medical professional)?

Part 1. Applicant Information

USPS ZIP Code Lookup

1.

Sufficient Insufficient

Applicant's Legal Name Family Name (Last Name)

USCIS USE ONLY This N-648 is:

I certify that I have examined the following applicant.

Given Name (First Name)

Continued/RFE Reviewer

Middle Name (if any) 2.

Applicant's Current Physical Address

Location & Date

Street Number and Name

Apt. Ste. Flr. Number

City or Town

State

Province

Postal Code

ZIP Code

Country

Applicant's Other Information 3.

Alien Registration Number (A-Number) (if any)

4.

► A-

U.S. Social Security Number (if any) ►

5.

Date of Birth (mm/dd/yyyy)

6.

Gender Male

7.

Applicant's Telephone Number

8.

Applicant's Email Address (if any)

Female

Form N-648 Edition 07/23/20

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Appendix B

164

Part 2. Medical Professional Information 1.

Medical Professional's Name Family Name (Last Name)

2.

Given Name (First Name)

Middle Name (if any)

Medical Professional's Business Address Street Number and Name

Apt. Ste. Flr.

Number

City or Town

State

ZIP Code

Province

Postal Code

Country

3.

License Number

4.

Licensing State

5.

Business Telephone Number

6.

Email Address (if any)

7.

I am currently licensed as a (select all that apply): Medical Doctor

8.

Doctor of Osteopathy

Clinical Psychologist

Medical Practice Type:

Part 3. Information About Disabilities and/or Impairments 1.

Provide the clinical diagnosis of all physical or developmental disabilities and/or mental impairments that may affect the applicant's ability to demonstrate an understanding of the English language and/or a knowledge and understanding of the fundamentals of the history and the principles and form of government of the United States. If applicable, please provide the relevant medical code as accepted by the Department of Health and Human Services (HHS). This includes the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the International Classification of Diseases (ICD). For example, “DSM-V 318.1 Intellectual Disability (Severe)” or “2015/16 ICD-10-CM F72 Severe intellectual disabilities.”

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Appendix B

Part 3. Information About Disabilities and/or Impairments (continued) 2.

3.

Provide a basic description of all the disabilities and/or impairments listed in Part 3, Item 1. For example, “Intellectual Disability (Severe) is a genetic disorder that causes lifelong intellectual disability, developmental delays, and other problems.”

When did each disability or impairment listed in Part 3., Item Number 1., begin? Date (mm/dd/yyyy)

If you need extra space to complete this section, use the space provided

below.

4.

Date(s) of Diagnosis (mm/dd/yyyy) If you need extra space to complete this section, use the space provided below.

5.

What caused each of this applicant's medical disabilities and/or impairments listed in Part 3., Item Number 1., if known?

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Appendix B

Part 3. Information About Disabilities and/or Impairments (continued) 6.

What clinical methods did you use to diagnose each of the applicant's medical disabilities and/or impairment(s) listed in Part 3., Item Number 1.?

7.

Describe the severity of each disability and/or impairment listed in Part 3., Item Number 1. Explain the basis of your assessment, i.e. known symptoms of condition, tests conducted, observations, etc.

8.

Describe how each relevant disability and/or impairment affects specific functions of the applicant's daily life, including the ability to work or go to school, that may be related to the ability to learn civics and/or English, including the ability to read, write and speak words in ordinary usage of the English language. Explain the basis of your assessment, including known symptoms of condition, tests conducted, observations, etc.

9.

Have any of the applicant's disabilities and/or impairments lasted, or do you expect any of them to last, 12 months or more? Yes

No

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Appendix B

Part 3. Information About Disabilities and/or Impairments (continued) 10.

Provide an explanation as to which disabilities or impairments are expected to last over 12 months and why.

NOTE: If you answered “No,” the applicant is not eligible for this exception and you need to go directly to Part 6. Medical Professional's Certification. 11.

Are any of the disabilities and/or impairment(s) the result of the applicant's illegal use of drugs?

12.

If yes, provide an explanation as to which disabilities or impairments are the result of the applicant's illegal use of drugs.

Yes

No

NOTE: If you answered “Yes” and all of the applicant's disabilities and/or impairments are the result of the applicant's illegal use of drugs, the applicant is not eligible for this exception and you need to go directly to Part 6. Medical Professional's Certification. 13.

Clearly describe how each of the applicant's disabilities and/or impairments affects his or her ability to demonstrate knowledge and understanding of English and/or civics.

14.

In your professional medical opinion, do any of the applicant's disabilities or impairments prevent him or her from demonstrating the following requirements? (Select all that apply. If none applies, the applicant is not eligible for this exception.) The ability to:

Read English

Speak English

Write English

Answer questions regarding United States history and civics, even in a language the applicant understands. 15.

Date and location you first examined the applicant regarding the condition(s) listed in Part 3., Item Number 1. A.

Date (mm/dd/yyyy)

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Appendix B

Part 3. Information About Disabilities and/or Impairments (continued) B.

Location (if different from business address provided in Part 2., otherwise select “same as business address”). Same as business address Street Number and Name

Apt. Ste. Flr. Number

City or Town

State

Province 16.

Postal Code

ZIP Code

Country

Date and location you last examined the applicant regarding the conditions listed in Part 3., Item Number 1., if different from above. A.

Date (mm/dd/yyyy)

B.

Location (if different from business address provided in Part 2., otherwise select “same as business address”). Same as business address Street Number and Name

Apt. Ste. Flr. Number

City or Town

State

Province

Postal Code

ZIP Code

Country

17.

Are you the medical professional who regularly treats this applicant for the conditions listed in Part 3., Item Number 1.?

18.

If you answered “Yes,” indicate the duration of treatment and skip Item Number 20. - 22.

Yes

No

Years 19.

Weekly 20.

Months

Please indicate the frequency of treatment. Monthly

Other

Name of Regularly Treating Medical Professional Family Name (Last Name)

21.

Yearly

Given Name (First Name)

Middle Name (if applicable)

Business Address and Phone Number of Regularly Treating Medical Professional Street Number and Name

Apt. Ste. Flr.

Number

City or Town

State

ZIP Code

Province

Form N-648 Edition 07/23/20

Postal Code

Country

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Appendix B

Part 3. Information About Disabilities and/or Impairments (continued) 22.

Explanation for why you are certifying this form instead of the regularly treating medical professional.

23.

Did you use an interpreter when you examined the applicant? Yes

No

NOTE: If you answered “Yes,” the interpreter must complete Part 4. Interpreter's Certification. If you used a telephonic interpreter, please complete all Items in Part 4. except Item Numbers 6. and 7. Additional Comments (Optional)

Part 4. Interpreter's Certification The interpreter must complete and certify the section below if an interpreter interpreted communications between the applicant and medical professional on the day of the examination that formed the basis of this Form N-648. 1.

Interpreter's Name Family Name (Last Name)

2.

Given Name (First Name)

Middle Name (if applicable)

Interpreter's Mailing Address Street Number and Name

Apt. Ste. Flr. Number

City or Town

State

Province

Postal Code

ZIP Code

Country

Interpreter's Contact Information 3.

Interpreter's Daytime Telephone Number

5.

Interpreter's Email Address (if any)

Form N-648 Edition 07/23/20

4.

Interpreter's Mobile Telephone Number (if any)

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Appendix B

Part 4. Interpreter's Certification (continued) Interpreter's Certification 6.

I certify that I am fluent in English and the following language,

.

I further certify that I have accurately and completely interpreted all communications between the medical professional and the applicant that occurred on 7.

, the dates of the examinations that form the basis of this certification.

Interpreter's Signature

Date of Signature (mm/dd/yyyy)

Certification for Telephonic Interpreter (to be completed by the medical professional) 8.

Was a telephonic interpreter used during the examination of the applicant?

9.

If you answered yes, did you ask the interpreter to affirm that he or she speaks fluent English and the applicant's language and that he or she will accurately and completely interpret all communications between you and the applicant?

10.

If yes, did the interpreter answer in the affirmative?

Yes (go to question 9.)

Yes

Yes

No

No

No

Part 5. Applicant's (Patient's) Attestation/Release of Information 1.

I,

(Applicant's Name),

authorize (Licensed medical doctor, doctor of osteopathy, or clinical psychologist) to release to U.S. Citizenship and Immigration Services all relevant physical and mental health information related to my medical status for the purpose of applying for an exception from the English language and U.S. civics requirements for naturalization. I certify under penalty of perjury, pursuant to 28 U.S.C. section 1746, that the information I provided to the medical professional is true and correct. I certify under penalty of perjury, pursuant to 28 U.S.C. section 1746, that I have attended an appointment with (Licensed medical doctor, doctor of osteopathy, or clinical psychologist) and was then diagnosed by him or her. I am aware that the knowing placement of false information on Form N-648 and related documents may also subject me to civil penalties under 8 U.S.C. section 1324c and INA section 274C. I understand that if this form is not completely filled out or if I fail to submit any required documentation, I may be found ineligible for the requested disability exception. 2.

Applicant or Applicant's Authorized Representative's Signature

Date of Signature (mm/dd/yyyy)

Part 6. Medical Professional's Certification Complete the following if you did not use an interpreter to communicate with the applicant during the examinations that form the basis of this Form N-648. 1.

I did not use an interpreter during my examinations of this applicant because: I am fluent in English and applicant.

, the language spoken by this

This applicant speaks English.

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Appendix B

Part 6. Medical Professional's Certification (continued) All medical professionals must complete the certification below. 2.

I certify that this applicant's identity has been verified through the following United States or State government-issued photographic identity document: Permanent Resident Card

State ID Number:

Other Identification (Indicate type and ID Number): I certify, under penalty of perjury under the laws of the United States of America, that the information on this form and any evidence submitted with it are all true and correct. I will furnish relevant medical records to USCIS, if requested to do so by USCIS, based on the applicant's consent. I am aware that the knowing placement of false information on Form N-648 and related documents may also subject me to criminal penalties including under 18 U.S.C. section 1546, civil penalties under 8 U.S.C. section 1324c and Immigration and Nationality Act (INA) section 274C, and civil license suspension or revocation by the appropriate authorities. 3.

Licensed Medical Professional Signature

Form N-648 Edition 07/23/20

Date of Signature (mm/dd/yyyy)

Page 9 of 9

Index

A Active tuberculosis, 26 Admissibility CIMT, 29, 30 criminal conviction, 25, 28, 30, 32, 33 definition, 25 health-related grounds, 26, 27 and inadmissibility, 25 unlawful presence, 25, 27, 28, 33 USCIS, 25 Advisory Committee for Immunization Practices, 26 American Bar Association (ABA), 19 Anti-immigration sentiment, 12 Asylum affirmative processing, 89 application, 88 asylees, 88, 91, 96–98, 100–103, 108 defensive processing, 89–92 diagnosing trauma, 103–107 foreign national, 88–90, 92, 93, 95, 108 forensic psychologist, 94–96 harm and causation, 100–103 immigration judge, 89–92, 98 interview and assessments, 96–97 late filing application, 108 lies/malingering, 107 memory, 107 persecution and fear of persecution, 97–100 psychological assessments, 92–94 psychological evaluations, 102 refugee, 88 removal withholding and deferral, 92–94 Attorney, 6–8, 17, 52

B Bad acts, 68, 69 The Board of Immigrant Appeals (BIA), 17, 18, 23, 24, 29, 52, 61, 64–66 The Bracero Program, 14 C Cancellation of removal BIA, 64, 65 deportation application, 64 exceptional and extremely unusual hardship, 64, 65 immigration court hearing, 64 infant child leaving, 63 LPR vs. non-LPR, 62, 63 qualified relative(s), 66 Chancroids, 26 Chinese Exclusion Act of 1882, 13 Chy Lung v. Freeman, 12 Citizenship causation, 114–116 disability/mental impairment, 110–112, 114, 116 examination, 110, 111, 113–115 foreign national, 110 lawful paths, 109 legal permanent resident, 109 psychological assessment, 115 Citizenship waiver, 2 Civil War, 12 Clear and convincing evidence standard Colorado v New Mexico, 48 extreme hardship, 51–53 immigration matters, 49

© Springer Nature Switzerland AG 2020 R. S. Meyers, Conducting Psychological Assessments for U.S. Immigration Cases, https://doi.org/10.1007/978-3-030-49868-9

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174 Clear and convincing evidence standard (cont.) psychologists, 49 qualifying relative (see Qualified relative) Code of Federal Regulations (CFR), 91 Colorado v New Mexico, 48 Complex post-traumatic stress disorder (CPTSD), 105 Conditional bars, 66 Convention Against Torture Protections (CAT), 90–92 Cooly laborers, 13 Country conditions, 56 Court system, 3 Crime involving moral turpitude (CIMT), 29, 30 Criminal convictions, 25, 28 drug trafficking, 30 human trafficking, 31 immigration fraud/misrepresentation, 32 immunity for crime, 31 member of Communist/totalitarian organization, 31, 32 money laundering, 31 prostitution, 30 violation of any controlled substance law, 30 violations of religious freedom, 31 Curriculum vitae (CV), 42, 43 D Daubert Evidentiary Rule, 40, 41 Demonstrative evidence, 36 Department of Homeland Security (DHS), 15, 17, 21–23 Department of State (DOS), 46 Deportation application, 64 Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association), 27 Diversity Visa (DV) Program, 46 Documentary evidence, 36 Documentation, 8 Domestic abuse child, 76 domestic violence, 77 economic/financial abuse, 79 extreme cruelty, 80 foreign nationals, 75–77, 79, 80 immigration, 71, 72, 75, 77, 84 IPV (see Intimate partner violence (IPV)) parent, 77 physical abuse, 78 psychological evaluation, 77

Index psychological, emotional and verbal abuse, 78–79 psychosocial assessment of victims, 83–84 psychosocial evaluation, 83 sexual abuse and/or assault, 78 spouse, 75–76 Domestic abuse waiver, 2 Drug abusers/addicts, 26 Drug trafficking, 30 E Economic detriment, 52 Economic disparity, 54 Evidence admission, 35 CV, 42, 43 Daubert Evidentiary Rule, 40, 41 demonstrative, 36 documentary evidence, 36 experience, 42, 43 Federal Rule of Evidence 702, 41, 42 Frye Evidentiary Rule, 39, 40 real, 35 rules, 35 testimonial, 36, 38, 39 Evidentiary rules, 18 Exceptional and extremely unusual hardship, 64 BIA, 61 cancellation of removal (see Cancellation of removal) foreign national, 61 good moral character, 66–69 qualifying relative, 62 U.S. law, 61 vs. extreme hardship cases, 63 Executive Office for Immigration Review (EOIR), 17–21, 23 Expert witness, 37–39 Extreme hardship assessment and evaluation, 59 BIA, 52 common consequences, 52 country conditions, 56 definition, 51 economic disparity, 54 health conditions and care, 54, 55 IJ, 47 immigration court, 52 inadmissibility, 46, 47 INS v. Jong Ha Wang, 51 interpretation/understanding, 51 loss of legal access/rights, 56 mental health issues, 57–58

Index preponderance of evidence, 48 qualified family member/members supporting the application, 51 qualified relative, 53 social and cultural impact, 55 supporting documentation, 58, 59 types, 46 undocumented immigrant, 46 unlawful presence, 46 USCIS, 52 VAWA, 47 vs. exceptional and extremely unusual hardship, 63 Extreme hardship waiver, 2 Eyewitness, 37 F Fact witness, 37 Family separation, 52 Farming industry, 14 Federal Bureau of Investigation (FBI), 14 Federal immigration laws, 46 Federal Rule of Evidence 702, 41, 42 Federal Rules of Civil Procedure (FRCP), 18 Federal Rules of Evidence (FRE), 18 Fee arrangements, 5 Foreign national, 13, 14, 25–31, 33, 61–69 application, 47 country of relocation, 53, 54 diagnosed/undiagnosed psychological disorder, 58 East Asian countries, 57 extreme hardship, 49 humanitarianism, 2 immigrant, 51 legal requirements, 49 nation’s law/social practices, 55 nationality, 2 qualified relative, 54 qualifying relative, 55–57 spouse, 47 undocumented, 46 unlawful presence, 46 in USA, 56 U.S. citizen, 2 waiver, 47 Foreign nationality, 2 Foreign nationals, 20, 22, 23 Forensic assessment, 6 Forensic psychologist, 5–8 Forensic psychology, 5 Fraud/deceit offenses, 67 Frye Evidentiary Rule, 39, 40

175 G Gonorrhea, 26 Good moral character, 66–69 Granuloma inguinale, 26 H Harmful behaviors, 26, 27 Health conditions and care, 54, 55 Humanitarianism, 2 Human trafficking, 31 I Illegal alien, 9, 14, 15, 17, 61, 62, 67, 68 Illegal immigrants, 10 Illegal Immigration and Immigrant Responsibility Act of 1996, 10 Illegitimate child, 50 Immigration citizenship waiver, 2 civil matters, 9 domestic abuse waiver, 2 extreme hardship waiver, 2 forensic psychologist, 8 illegal immigrants, 10 political asylum waiver, 2 proceeding, 2 psychological assessments and evaluations, 3 unauthorized immigrants, 2 Immigration Act of 1891, 13 Immigration and Customs Enforcement (ICE), 90 Immigration and Nationality Act (INA), 14, 15, 28, 117 Immigration and Nationality Technical Corrections Act, 110 Immigration court, 52 Immigration court hearing, 64 Immigration court system ABA, 19 Attorney General, 17 BIA, 17, 18, 23, 24 courtroom, 21–22 DHS, 17, 21–23 EOIR (see Executive Office for Immigration Review (EOIR)) evidentiary rules, 18 IJ (see Immigration Judge (IJ)) legal representation, 20 procedure, 23, 24 structure, 23, 24 Immigration fraud/misrepresentation, 32

Index

176 Immigration history, 11 Immigration judge (IJ), 17, 19, 21–24, 29, 47 Immigration law anti-immigration sentiment, 12 California Commissioner of Immigration, 12 CPB, 16 DHS, 15 economic and political pressures, 13 enforcement, 14 farming industry, 14 The Homeland Security Act of 2002, 15 history, 11 ICE, 16 vs. illegal aliens, 15 Immigration Act of 1891, 13 INA, 14, 15 INS, 14 limitation, 12 political and racial views, 12 Port states, 12 The Refugee Act of 1980, 15 September 11, 2001, 15 USCIS, 16 U S Constitution, 11 Immigration proceeding, 2 Inadmissibility, 25–33, 46, 47 Individual calendar hearings/merits hearings, 22, 23 Individualized Education Plan (IEP), 120 Infectious leprosy, 26 Infectious syphilis, 26 INS v Hector, 50 INS v. Jong Ha Wang, 51 Intimate partner violence (IPV), 80–83 J Judicial decision, 35 Judicial notice, 36 L Lay witness, 37 Legal permanent resident (LPR), 2 vs. non-LPR cancellation of removal, 62, 63 Loss of legal access/rights, 56 Lymphogranuloma venereum (LGV), 26 M Magnuson Act (1943), 13 Manual of International Classification of Diseases, Injuries, and Causes of Death (World Health Organization), 27

Master calendar hearing, 22, 23 Medical disorder, 65 Mental disorder, 26, 27 Mental health issues, 57–58 Mexican border enforcement, 14 Mitigation Adam Walsh Act, 125–126 aggravating evidence, 118 assessment tools, 131 attorney work product rule, 122–123 competency issues, 124 conviction, 118, 121, 127, 129–131 crime, 118, 119, 121, 122, 125–128 foreign national, 118, 124, 127 forensic interview, 122 immigration, 118, 127, 128, 131–132 interviews, 125–126 moral turpitude, 118 open-and close-ended questioning, 123 psychological assessments, 120, 122, 131 psychosocial evaluation, 120, 124 records, 119–122 removal of criminal aliens, 117–119 MMPI-2 assessment, 69 Money laundering, 31 Moral turpitude CIMT, 29, 30 definition, 29 N Nebulous, 29 Non-qualified relatives/individuals, 49 P Parent–child relationship, 50, 51 Permanent bars, 66 Pertussis, 26 Physical disorder, 26, 27 Physical evidence, 35 Political asylum waiver, 2 Polygamy, 67 Port states, 12 Post-traumatic distress disorder (PTSD), 103, 112 Prostitution, 30 Psychological assessment, 57 attorney, 6 client, 8 forensic psychologist, 6, 8 in immigration cases, 5 informed consent agreement, 8 paper and pencil/computer-based, 8 traditional training and experience, 3

Index Psychological disorder, 57, 58, 65 Psychological effects, 57 Psychological evaluation, 51 Psychological mitigation, 31 Psychologists, 49 Psychopathy Checklist-Revised (PCL-R), 69 Psychosocial evaluation, 3, 30, 66, 68, 69 Q Qualified relative, 62, 64, 66 foreign national, 49 forensic psychologist, 49 immigration law, 50 INS v Hector, 50 parent–child relationship, 50, 51 ties to family and community, 53 R Real evidence, 35 The Refugee Act of 1980, 15, 87 Removal, 46, 48, 52, 54, 58 cancellation (see Cancellation of removal) Risk assessment, 69 S Seasonal affective disorder (SAD), 152 Sexual Violence Risk-20 (SVR-20), 69 Static-99, 69 Structured Clinical Interview for DSM-5 (SCID-5), 97 Supporting documentation, 58, 59 T Tax evasion, 67 Temporary Protected Status (TPS), 56 Testify in court cross-examination, 148 direct examination, 148 evidence laws and rules, 147 foreign national, 135, 138, 139, 153 forensic report, 137 immigration, 135, 136, 141, 146, 151, 152 jargon, 152 legal qualifications, 150 preliminary information page, 138–141 presentation, 152–154 psychological evaluation, 137 psychosocial evaluation, 140 reliability and validity, 150–152

177 report allegations, 143 appearance and behavioral observations, 144 assessment administration, 144 background information, 141–142 conclusions and recommendations, 147 interpretation and discussion, 146–147 results of assessments, 144 sources of information, 141–142 supportive research, 145–146 testimony, 148–150 Testimonial evidence expert witness, 37–39 eyewitness, 37 fact witness, 37 Traumatic brain injury (TBI), 94 U Unauthorized immigrants, 1 Undocumented immigrant, 3, 15, 23, 46, 61 U.S. Citizenship and Immigration Services (USCIS), 16, 25 United States Constitution, 11 United States Immigration and Naturalization Service (INS), 14 Unlawful presence, 25, 27, 28, 33, 46 U.S. Customs and Border Protection (CBP), 16, 89 U.S. law, 61 U.S. Immigration and Customs Enforcement (ICE), 16, 89 U-Visa, 56 V Violence Against Women Act (VAWA), 47, 71, 75, 76, 83 Violence Risk Appraisal Guide-Revised (VRAG-R), 69 W Waiver exceptional and extremely unusual hardship (see Exceptional and extremely unusual hardship) Waivers, 25, 27, 28, 33 extreme hardship (see Extreme hardship) The War Brides Act of 1945, 14 Whooping cough, 26