Symposium: Forensic Psychological Evaluation in Immigration Court

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					Symposium: Forensic Psychological Evaluation in
              Immigration Court
      Society for Personality Assessment
             San Jose, California
           Friday, March 26, 2010



Psychological Evaluation of Extreme and
       Unusual Hardship Cases

     Marvin W. Acklin, PhD, ABAP,ABPP
             Honolulu, Hawaii
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010
• Psychologists are frequently retained to serve as
  expert consultants or experts witnesses in
  Immigration cases. Immigration regulations
  provide for an “exceptional and extremely unusual
  hardship exception” in cases where removal of an
  undocumented person would adversely affect a
  U.S. citizen, most often, a child, a parent, or
  spouse. These Cancellation of Removal cases
  usually have profound consequences for the
  parties.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010
• This presentation addresses strategic and tactical
  assessment issues in these compelling, high stakes
  situations through review of immigration
  regulations and case law that define extreme and
  unusual hardship, assessment models for
  addressing the standard, approaches to working
  with immigration attorneys, and actual case
  material.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010
• Immigration law provides for “cancellation of
  removal” of an illegal alien if it can be shown that
  the removal would cause “exceptional and
  extremely unusual hardship” for an American
  citizen.
• What is exceptional and extremely unusual
  hardship?
• an applicant for cancellation of removal 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.”
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010
• As background, prior to 1996 similar relief was
  known as “suspension of deportation”, and in
  addition to good moral character, only 7 years of
  residence need be proven. And the hardship prong
  was not quite as prohibitive, in that only “extreme”
  hardship need be proven, and that the qualifying
  hardship could be to a U.S. family member, or to
  the applicant himself. Perhaps concluding that this
  bar was too low, Congress sought to make it
  tougher for individuals in removal proceedings to
  gain the sympathies of the court and gain U.S.
  residence.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010
Some examples of what is not extreme hardship
  include:

• Economic impacts associated with the deportation,
• Difficulty in readjusting to a native country,
• Leaving a child with United States' citizenship
  behind,
• No family ties will exist in the United States, and
• When a child will be able to get adequate education
  in the native country.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Clients are almost always desperate, often non-
  English speaking; many are stable, have jobs, pay
  taxes, have children in schools—the US citizen can
  be a spouse, a child or even a parent (naturalized
  immigrant).
• Fees are not covered by health insurance.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Evaluations can be very dramatic and emotional.
• Challenges of the evaluation procedure
• As high stakes situations these evaluations can
  generate poignant scenes of distress in the office
• They force to evaluator to confront his or her own
  positions with respect US immigration policy.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Sizing a case up: Finding a “hook” to provide a
  defensible opinion: mental or physical disability,
  psychiatric condition (LD, ADHD, elder frailty,
  health status, etc).
• Choosing your case and maintaining your
  credibility with the judge—long shots
• Do not make any promises.
• It is a often a judgment call about whether you can
  generate a defensible case.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Use of other professionals (medical,
  psychiatric, educational, etc.) as leverage.
• Refer to mental health or medical
  professionals for additional support
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Two step evaluation process:
• Survey the case (one hour) to determine if a
  defensible case can be made.
• Do a preliminary assessment of the potentially
  affected parties, gather some background
  information, consult with attorney about case
  background.
• Finding a hook
• If it is a no go, notify the attorney or delay
  evaluation
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010



• Standard mental health evaluation: MSE,
  simplified assessments: BAI, BDI-II, Acklin
  Sleep Inventory, Rand Health Survey,
  Achenbachs, clinical and collateral
  interviews—enough to generate a diagnosis
  and opinion.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• The goal—as in all forensic psychological
  assessments-- is to give the judge some
  help in making a decision.
• No bar to ultimate issue testimony
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Use of interpreters.
• Interpreters can be very helpful, especially
  if you can get to know and trust them, and
  culturally relevant distress interpretation,
  assessment of validity, and comments
  about the home country situation.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Study the setting where they may be
  deported: population, employment, crime,
  special education in rural Mexico or
  Philippines, asthma in Mexico City
• Guatemala, Bangladesh, Korea, Mexico,
  Philippines.
• Discussion of what will happen if or if not
  they will be removed? This often very
  painful.
     Forensic Psychological Evaluation in Immigration Court
              Society for Personality Assessment
                     San Jose, California
                    Friday, March 26, 2010

• Reports: short and straight to the point (2-3
  pages); standard format; DSM-IV
  psychiatric diagnosis, opinion and rationale
• Rules of evidence seem to be somewhat
  more relaxed that ordinary criminal
  proceedings
• No bar to ultimate opinion.
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Going to Court:
• Hearings can be short, impersonal, usually
  hard hitting, abrupt, the judge can be
  appear busy, distracted, and dismissive
• Often nasty, sarcastic, and ineffective cross-
  examination from the government attorney
• Always do a pre-trial preparation with the
  attorney
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• I have a 1000% batting record, having
  chosen cases wisely, and have gained a
  certain degree of credibility with the judge.

• Immigration attorneys talk to each other.
  They make referrals. They are usually great
  people to work with. My favorite, JS, is a 75
  year old lawyer and is regularly at the 9th
  District Court taking ICE to court.
  Forensic Psychological Evaluation in Immigration Court
            Society for Personality Assessment
                   San Jose, California
                 Friday, March 26, 2010

• Emergent area—assessment of
  competency to participate in
  immigration proceedings
   Forensic Psychological Evaluation in Immigration Court
             Society for Personality Assessment
                    San Jose, California
                  Friday, March 26, 2010

• Working with Immigration Attorneys
• In addition to hardship cases, I have done risk
  assessments in clients who were facing deportation
  due a past criminal offence, for example, past
  murder, domestic violence, or drug charges.
• I have evaluated women whose application for a
  green card were interrupted by a breakup or DV;
  one young man was fleeing salvematrucha--
  SM13—a vicious Guatemalan gang

				
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