Conducting Immigration Evaluations

A Practical Guide for Mental Health Professionals

Mariela G. Shibley, Matthew G. Holt

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000559248
• Edition: 1
• Topic: Psychologie
• Subtopic: Forensische Psychologie

This book prepares mental health professionals to conduct a thorough psychological assessment of individuals involved in immigration proceedings and present the results in a professional report. Written by a licensed clinical psychologist with input from an attorney certified in Immigration and Nationality Law, the book uses clear language that makes it accessible to experienced and novice therapists alike.

Chapters present a basic legal understanding of various types of immigration cases and detail the process of conducting the clinical interview, choosing the psychological instruments appropriate for each case, and writing the report. The book also covers practical considerations such as testifying in immigration court and expanding your practice to include immigration evaluations. Vignettes and sample reports link theory to real-world situations, drawing from the authors' multiple years of combined experience.

This book is an essential guide for clinicians who want to assist the diverse and often disempowered population of immigrants and their families.

1What Is Unique about Immigration Evaluations?

Mariela G. Shibley, Psy.D.

DOI: 10.4324/9781003139973-2

According to the Pew Research Center (2020), there were 44.8 million foreign-born people living in the United States in 2018. This represents a record 13.7% of the total population, a percentage that has more than quadrupled since the 1960s. The number of immigrants living in the United States is projected to almost double from the 2018 figure by 2065. The Migration Policy Institute estimates that one in seven US residents is a foreign national (FN), many of whom reside in mixed-status households (Capps et al., 2020). A mixed-status household (or a mixed-status family) is one whose members include people with different citizenship or varying immigration statuses—a common case being where the parents are undocumented (i.e., residing in the United States without permission) and the children are US citizens (USCs). The National Immigration Law Center (NILC) reported that the number of mixed-status families is growing (2014). As of 2012, more than a quarter of young children in the United States were children of immigrants, and over 90% of these children were USCs. Pew Research Center (2020) also identifies the US states with the highest immigrant populations as California, Texas, New York, Florida, New Jersey, and Illinois. Mental health professionals (MHPs) working in these states, especially those who speak a second language, often come across a request to conduct an evaluation for someone involved in immigration proceedings, whether as the direct treating provider or as an evaluator.

Conducting psychological evaluations for immigration court or the United States Citizenship and Immigration Services (USCIS), although falling under the umbrella of forensic work, is a relatively new area of practice (Barber-Rioja & Garcia-Mansilla, 2019; Evans & Hass, 2018; Frumkin & Friedland, 1995; Meyers, 2020). Consequently, most MHPs interested in this field have never received specific training in graduate school for these evaluations and struggle to find adequate guidance from a knowledgeable mentor or supervisor. Given the expected increase in FNs seeking to apply for and receive immigration benefits, however, there is more of a need than ever for MHPs qualified and willing to conduct evaluations in immigration cases (often referred to simply as “immigration evaluations”). This book is meant to empower MHPs to take part in this meaningful and transformative work as a compliment to their practice.

Psychological evaluations come in many forms. There are, for instance, psychodiagnostic evaluations used to assess psychiatric symptoms within a clinical context to arrive at a diagnosis, treatment recommendations, and prognosis. Neuropsychological evaluations, to take another example, examine brain functions and how they impact behavior. Forensic evaluations help to determine custody arrangements, competency, criminal responsibility, and other legal issues. All of these evaluations share a common set of basic steps: a review of available records, a clinical interview, the administration of psychometric tests, the gathering of relevant collateral information, and the presentation of findings in a written report.

Immigration evaluations are one type of forensic evaluation and work in much the same way. What differentiates them from other types of psychological evaluations are (1) the referral question to be addressed in the report, (2) which MHPs can conduct the evaluation, (3) who retains the services of the evaluator, (4) who receives the written report, and (5) what the report will be used for. All of these will be considered in the sections that follow. I will also discuss some ethical considerations when doing this type of work.

The Referral Question

The referral question guides the evaluation, and the purpose of the report is to answer that question. In a forensic case, the referral question might be to determine whether the evaluee is competent to stand trial, to assess criminal responsibility, or to explain their unlawful behaviors within the context of their background history. In a personal injury case, the purpose of a psychological evaluation might be to explain the psychological impact of having been the victim of an accident, to provide a diagnosis, and to determine the client’s prognosis. In a child custody case, evaluators are tasked with determining parents’ suitability for caring for their children. In immigration cases, the referral questions typically depend on the type of immigration process an individual is involved in. The general themes include present or prospective hardship to children, spouses, and parents caused by imposed and prolonged separation from one another; the extent to which a traumatic event or events affected the client; the identification of abuse in a familial relationship; or the presence of mitigating factors.

As with all forensic cases, it is crucial that the report is guided by the psycholegal question because deviating from that might, at best, render the report useless, and at worst, jeopardize the client’s case. This is especially important in immigration evaluations for FNs and their family members. For example, cancellation of removal is a common form of relief for FNs without legal status in the United States who are facing a potential removal order—previously known as a deportation order or exclusion order—from an immigration judge (IJ). As explained in much greater detail in Chapter 3, the basic premise is that the FN must show good moral character and continuous physical presence for a 10-year period, a lack of disqualifying criminal history, and that their child(ren), spouse, or parent will suffer—individually or in the aggregate—an “exceptional and extremely unusual” hardship if the FN is ordered removed. For this form of relief, the IJ will only consider hardship to the aforementioned family members who are lawful permanent residents (LPRs) or USCs. Thus, an evaluation of a spouse who is protected under Deferred Action for Childhood Arrivals (DACA)—although she is legally entitled to remain in the United States, has a work permit and social security card, and cannot be removed—would be of little direct value because she is neither an LPR nor a USC. Similarly, an evaluation of an applicant’s adult son or daughter, regardless of what findings come from it, would be of no use if the form of relief only considers hardship to the applicant’s child, defined as a son or daughter under 21 years of age at the time of the trial. Unfortunately, there are countless examples of a well-written immigration report having little to no value because it does not answer the correct psycholegal question. Therefore, as you strive to help people understand and receive support for their immigration cases, it is critical to frame your report around the correct question. As you immerse yourself deeper in the work, you will build up your understanding of what to look for and ask about as you shape your report.

One cannot assume what the referral question is solely based on the information provided by the person requesting to be evaluated or their family member facilitating the introduction. For example, a person might call requesting a psychological evaluation because their attorney told them it would help their case but when asked what type of immigration process they are involved in, the caller is not sure. You could ask the caller a series of questions to help you determine whether it is for an inadmissibility waiver, a petition under the Violence Against Women Act (VAWA), a U visa, a court case involving cancellation of removal, or something else, but sometimes the information they give you is either insufficient or incorrect—not because they are being deceitful, but because they really do not know.

Confusing a case needing a provisional waiver with a case seeking cancellation of removal is the most common mistake. Although the referral question is basically the same—how a separation from a loved one or a relocation in order to stay together would affect the qualifying relative (more on this below)—the differences lie in who can and should be evaluated, who the audience will be, whether you may be called as an expert witness, and the varying degrees of burden of proof. More on all of this is detailed in the chapters to follow.

The consequences of miscommunication can be even more severe when, say, you believe the evaluation is for cancellation of removal to be provided to an IJ but is actually meant to support a petition to USCIS for relief under the VAWA. Imagine the very real possibility of a woman calling to say she needs an evaluation for her son for her to be able to stay in this country. Operating under the belief that the case centers on cancellation of removal and hardship to the son if his mother, who lacks lawful immigration status, is removed from the country, you schedule the evaluation. Over the course of the evaluation, however, it becomes evident that the son also lacks lawful immigration status, he has been a victim of abuse perpetrated by his stepfather (the woman’s USC husband), and they are therefore applying for relief under VAWA. Had the focus been on how the mother’s removal from the United States would affect the son, the report would have been of only minor relevance to the adjudicator. The moral of the story is this: always clarify the referral question, and, whenever possible, consult with the referring attorney regarding the form of relief and the psycholegal elements to be addressed in the evaluation.

The Evaluator

Generally speaking, when thinking of psychological evaluations one might assume that it is only licensed psychologists who can do them, but most immigration evaluations can be performed by all kinds of MHPs—provided they are adequately trained in conducting such evaluations, of course. Although some states or licensing boards restrict counselors, social workers, and marriage and family therapists from conducting certain types of mental health assessments in certain contexts, almost all individuals who are independently licensed to diagnose and treat mental disorders and who have knowledge, training, and experience of conducting psychological evaluations can perform immigration evaluations.¹ More about this is presented at the end of this chapter.

It is possible that one of your therapy patients becomes involved in immigration proceedings and asks you to write a report to be included with their legal paperwork. Unfortunately, doing so would constitute a dual relationship, which is against the codes of ethics of pretty much every mental health profession. For example, the Specialty Guidelines for Forensic Psychologists specifically state, “Providing forensic and therapeutic psychological services to the same individual or closely related individuals involves multiple relationships that may impair objectivity and/or cause exploitation or other harm …” (American Psychological Association, 2017. Guideline 4.02.01: Therapeutic-Forensic Role Conflicts), as the roles of a treating therapist and a forensic evaluator are “irreconcilable” (Greenberg & Shuman, 1997). Gordon (2016) went as far as suggesting that the testimony of an MHP who is both the evaluator and the treating provider should not be admitted in court. In other words, evaluating a patient whom you also treat with regular therapy sessions compromises the integrity of the evaluation and places you at risk of committing an ethical violation.

One could argue that since the therapist and the patient have already established rapport, the therapist knows the patient’s background history and can make thorough clinical observations. This is a common misconception among immigration adjudicators, who by and large lack the training and ethical guidance MHPs receive. In fact, treating therapists performing evaluations of their own patients would obliterate the therapist’s neutrality and objectivity, rendering a report biased. USCIS, the branch within the US Department of Homeland Security (USDHS) primarily responsible for the administration of immigration benefits, has repeatedly expressed that an evaluation based on only one or a handful of sessions is of limited evidentiary value. Research, however, has demonstrated that such evaluations are actually associated with favorable outcomes. McLawsen et al. (2011) studied thousands of decisions by the Administrative Appeals Office (AAO), the department within USCIS that reviews adjudications of benefit applications, to determine the degree to which expert testimony (i.e., a psychological evaluation) influences the adjudicator’s determination of whether an applicant had met the extreme hardship standard. They concluded that an ongoing relationship between an MHP and the applicant did not necessarily yield more favorable outcomes compared to MHPs who only saw the applicant for a one-time psychological evaluation. This is why it is useful to explain somewhere in the report that even though you are not the treating provider, you have been adequately trained to answer the psycholegal question, and it may even be helpful to explain the appropriateness of you providing a report in lieu of the treating provider. As you will see in the various report samples provided in the Appendices, I always include that clarification at the beginning of the report.

Not being able to evaluate your client does not mean that you cannot be helpful with their immigration case. As a matter of fact, McLawsen et al. (2011) also found that applicants who had received some form of mental health treatment in the past had higher rates of success in their appeals than applicants who never received such treatment. This is consistent with Hake and Banks’s (2005) findings which concluded that applicants who had a history of mental health treatment had better success in their hardship waivers. A treating provider may still be immensely helpful for a waiver applicant by writing an affidavit, or letter, of support or otherwise providing proof of ongoing care to demonstrate the existence of treatment or to further bolster the findings in a report or evaluation. This does not in any way constitute a dual relationship, and as long as your client is the one requesting the letter, there is no breach of confidentiality. Many MHPs are wary about writing any letters or documents for their clients, fearing that doing so will increase the likelihood of being dragged into a legal proceeding, but that is highly unlikely in immigration court. If your client is requesting that you write a letter about their treatment to help with their immigration case, it is up to you to provide that type of assistance and whether you charge for it. I always go over the letter with my patient, and if there is anything in it that they would p...