Psychological Evaluation of Extreme and Unusual Hardship Cases Marvin W. Acklin, PhD, ABAP,ABPP Honolulu, Hawaii

1. Symposium: Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, March 26, 2010 Psychological Evaluation of Extreme and Unusual Hardship Cases Marvin W. Acklin, PhD, ABAP,ABPP Honolulu, Hawaii

2. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

3. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

4. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.”

5. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

6. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

7. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

8. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

9. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

10. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, March 26, 2010 • Use of other professionals (medical, psychiatric, educational, etc.) as leverage. • Refer to mental health or medical professionals for additional support

11. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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

12. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

13. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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

14. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

15. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

16. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

17. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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

18. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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.

19. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, March 26, 2010 • Emergent area—assessment of competency to participate in immigration proceedings

20. Forensic Psychological Evaluation in Immigration CourtSociety for Personality AssessmentSan Jose, CaliforniaFriday, 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