Forensic Psychological Assessment in Immigration Court

A Guidebook for Evidence-Based and Ethical Practice

Barton Evans, III, Giselle A. Hass

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317219217
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

Forensic Psychological Assessment in Immigration Court is an essential specialized guide for psychologists and clinicians who work with immigrants. Immigration evaluations differ in many ways from other types of forensic assessments because of the psycholegal issues that extend beyond the individual, including family dynamics, social context, and cross-cultural concerns. Immigrants are often victims of trauma and require specialized expertise to elicit the information needed for assessment. Having spent much of their professional careers as practicing forensic psychologists, authors Evans and Hass have compiled a comprehensive text that draws on forensic psychology, psychological assessment, traumatology, family processes, and national and international political forces to present an approach for the effective and ethical practice of forensic psychological assessment in Immigration Court.

Part I

Conceptual Foundations

Chapter 1

Forensic Psychology and Immigration Court

Basic Concepts

The use of forensic psychological mental health experts in immigration matters is a developing and evolving area of practice (Evans, 2000; Frumkind & Friedland, 1995), which has increasingly provided attorneys with valuable and, at times, essential evidence in representing their clients before the U.S. Citizenship and Immigration Service (USCIS) and the Immigration Court (IC).¹ Yet, mental health assessments adequate in clinical settings or forensic reports based solely on clinical treatment frequently fail to address the more stringent standards of objectivity and neutrality required for psychological assessment in the legal setting (see Melton, Petrila, Poythress, & Slobogin, 2007; Weiner & Otto, 2014) and the particularities of IC (Frumkind & Friedland, 1995). Without a clear understanding of how psychological and mental health expertise and practice intersects with the relevant legal system, clinically focused interviews run the risk of being unhelpful or even discounted. The price of this lack of understanding can be measured ultimately in terms of deportation of vulnerable immigrants with a solid foundation for legal relief from removal.

The purpose of this chapter is to introduce psychologists, other mental health practitioners, and immigration attorneys to the principles of forensic psychological assessment with particular reference to matters before the IC. After a basic introduction to forensic psychology, we address the areas of practice in the IC and the required professional expertise to provide opinions and professional boundaries with referring attorneys. Our goal is to share our knowledge of effective practice in immigration matters and to increase the value of forensic psychological assessments for immigrants, attorneys, and the IC.

Principles of Forensic Psychology²

While the psychological literature offers valuable information relevant to immigration claims, such information must also be carefully placed within the legal context of IC. Often the professional psychology practices may appear to irreconcilably conflict with the stringent legal criteria set forth by the court. For example, well-meaning psychologists may describe well the horrors told to them by victims of political persecution or domestic abuse, yet quite competent clinical evaluation may fail to address the more stringent standards of objectivity and neutrality required in the legal setting (Melton et al., 2007). Psychological experts must conform their clinical information to the evidentiary standards set by the court (for example, the Specialty Guidelines for Forensic Psychologists; American Psychological Association (APA), 2013) and judicial concerns about the possible bias of the psychological expert toward advocacy over neutrality must be overcome.

Psychological assessment using the principles of forensic psychology can improve the value of expert psychological testimony in IC proceedings. Unlike clinical evaluations, forensic evaluations must include the assessment of deception and malingering and pre-morbid (pre-trauma) psychological functioning. As a consequence, such assessments require the increased need for corroboration of claims. Without this proper foundation, psychological evaluations may provide little in the way of useful information to the trier of fact, such as the IC judge or IC administrative officer. Ultimately, it is the immigrant seeking relief who suffers from the failure to reconcile psychological knowledge with legal standards. Forensic psychological procedures can powerfully integrate the dictates of the IC, by addressing the relevant psycholegal questions in a neutral and objective fashion, which balances the court’s requirements for verification and assessment of credibility with the needs of the immigrant respondent’s need for psychological documentation of his or her suffering or hardship. This chapter clarifies these principles of forensic psychology and how they are relevant to the IC. Additionally, other chapters address our suggested guideline for how to conduct such assessments and for how to establish expertise to provide psychological cogent reports and testimony in the IC.

There are fundamental differences between the forensic assessor and the mental health clinician (Greenberg & Shuman, 1997). The most important difference is that the forensic assessor must take an objective, neutral stance in the evaluation. The forensic assessor holds the statements of the examinee in a state of suspended belief and disbelief and requires immigrant respondents to corroborate their statements to the degree possible. The stance of the neutral forensic expert is different from the supportive, accepting, empathic, and confidential relationship critical to good clinical treatment. This difference in role arises from the fundamental difference about who is the client in a forensic evaluation. For forensic assessors, the client is the attorney who retains the forensic assessor to conduct the independent psychological evaluation (or by the Court itself, though in practice we know of no instances where an expert has been retained by an IC judge or USCIS attorney). This arrangement also holds a particular advantage for the attorney’s client. Because client–patient privilege is forfeited when the immigrant respondent puts her or his mental health at issue before the court, the immigrant’s attorney can invoke attorney work product privilege if the assessor’s findings prove unhelpful to the case. The unfavorable evaluation would not be entered into evidence and the attorney could go forward on the merits of the case without it, thus better protecting her or his client’s legal rights.

In our experience, this crucial distinction between forensic and clinical evaluation is often not well understood by assessors, attorneys, and judges. The forensic assessor’s job is to provide an independent, neutral, objective evaluation of the relevant psycholegal question at hand and to share that information with the attorney retaining the assessor, whether or not it is beneficial to the examinee’s case. An example of such a question is, whether or not the respondent in IC asylum proceedings shows indications of psychological trauma that are consistent with, and supportive of, her claims of rape and torture and that appears proximately caused by persecution. Therefore, it is of critical importance for the forensic psychologist to understand legal questions to be answered and how the information from a psychological evaluation fits in the evidence. As such, evaluations should be functionally based, not diagnostically based (Frumkind & Friedland 1995; Melton et al., 2007) – that is, tailored primarily to the legal question.

The presumption that the psychological expert must arrive at a psychological diagnosis, or even that a formulation of a diagnosis is necessary, often obscures the actual question before the IC. It is possible that the establishment of a diagnosis may be necessary in some, though not all, cases such as extreme hardship based on a mental disorder of a U.S. citizen spouse or child in a suspension of deportation proceeding. Even in these cases, the diagnosis may be necessary, but certainly not sufficient, for a forensic assessment. The diagnosis must be linked to the actual hardship experienced by the qualifying U.S. citizen through an understanding of the relationship between the impact of her mental disorder and the deportation of her immigrant spouse. For instance, it is entirely possible that the condition of an individual suffering from a diagnosed mental disorder would be unaffected, or even improved, by the deportation of a spouse.

As with all forensic evaluations, the assessor must go beyond the requirements of a clinical evaluation to: (a) evaluate the credibility of the respondent by formal assessment of malingering and, wherever possible, third-party corroborative information; (b) assess proximate cause/nexus issues; and (c) determine pre-existing conditions and post-event experiences to rule out other causes for psychological findings.

All forensic evaluations must consider the problem of potential fraudulent reporting, where there is secondary gain for doing so (Rogers, 2008; Simon, 2008). Because the issue of credibility lies at the heart of most, if not all, IC proceedings, a professionally supportable assessment of malingering, deception, exaggeration, withholding of information, and secondary gain is essential and must be explicitly addressed in forensic psychological reports and testimony. Such an evaluation must go beyond ‘clinical judgment,’ as such judgments are notoriously unreliable (see Garb, 1998). For example, Bourg, Connor, and Landis (1995) showed that experienced forensic psychologists, as well as experienced clinical psychologists, demonstrated good accuracy in differentiating malingerers from non-malingerers, when sufficient information is available. Such information includes, in addition to clinical interview, psychological testing when possible, assessment of malingering, and collateral information from third-party sources.

Perhaps there is no area that calls more for the creativity of the expert assessor in obtaining collateral information than immigration matters. Sources of collateral information can include, where possible, the attorney’s USCIS documentation (including any affidavits), collateral interviews with friends and family, whether it is safe to the immigrant, and country profiles on human rights violations from Amnesty International and the U.S. Department of State. For example, many credible claims, and more than one fraudulent claim, of torture in an asylum proceeding have been aided by simply examining the methods of torture claimed by the respondent and those used by the existing regime at the time of the respondent’s report. We go into detail about assessment of malingering and credibility in Chapter 3.

Expertise in Forensic Psychology in IC

The kinds of evidence provided by psychological experts varies according to area, reflecting different information probative to the court. Additionally, as a general rule, each kind of case will call for different kinds of psychological expertise and therefore perhaps different experts. It is also important for forensic assessors to understand what constitutes expertise from a forensic assessment perspective. It is not simply enough to be a licensed psychologist or mental health professional to claim expertise that is relevant to the IC. Specific graduate training leading to relevant licensure may qualify the mental health professional to provide diagnosis and treatment of mental disorders, but such training is insufficient when entering the forensic psychological assessment arena. We recommend that individuals considering providing expert assessment and opinions for the IC get a good grounding in the legal definition of expert opinion. We provide a quick overview below and recommend chapter 1 in Melton et al. (2007) for a more detailed discussion.

While IC judges have broad discretion in deciding about admission of expert testimony, an excellent benchmark is the Federal Rule of Evidence 702 (FRE Rule 702, 2011):

Rule 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.

Unlike fact witnesses, who are limited to testifying about what they know or have observed, expert witnesses have the ability to express opinion because, as their name suggests, they are presumed to be ‘experts’ by having scientific, technical, or other specialized knowledge ‘beyond the ken’ of the tier of fact. Expert testimony is ‘beyond the ken’ of the IC judges or USCIS administrative review officers when the expert can demonstrate factually supported special knowledge that is beyond that of the trier of fact. The legal rationale is that judges cannot be expected to be knowledgeable in all areas of human activity and count on experts to provide specialized knowledge relevant to the matter before the Court. In reality, many cases before the IC are greatly aided by, and may even turn on, access to opinions based on specialized, fact-based scientific knowledge and application of reliable assessment methods.

For our purposes, expert witnesses are called upon to testify in the IC on matters of mental health requiring both scientific and clinical expertise, and may include other areas of expert knowledge such as social, experimental, cognitive, or developmental issues. For IC proceedings, immigration attorneys do most, if not all, expert witness recruitment. It is important to emphasize that, regardless of who calls in the expert, it is the IC judge who determines the acceptability of the expert witness and the probative value of her or his report and testimony. As such, it is a good approach to conduct an expert forensic psychological assessment as though it ultimately addresses the needs and interests of the IC judge rather than the retaining attorney or immigrant respondent. All ethical expert witnesses must be able to resolve the issue of being a neutral expert in the case or being an advocate for the immigrant. They must decide between a careful adherence to factual application of their field of expertise or to the outcome of the case. While being an advocate for the immigrant is compelling and morally appealing, our experience is that IC judges quickly ascertain the difference between a forensic psychological assessor who provides neutral, fact-based expert opinions and an advocacy-based assessor who frequently bases opinions on clinical interview and little else. As the Discussant of my (FBE) presentation on forensic assessment in IC, the Honorable Judge James R. Fujimoto of the Executive Office for Immigration Review in Chicago (Fujimoto, 2000) noted that the neutral, objective, fact-based approach espoused above was an important corrective to advocacy-based testimony. He termed this latter approach ‘the regurgitation model’ of expert testimony, which was of limited probative value to the IC. Having reached an opinion through ethical methods, the assessor is free to advocate for his or her opinion in the report and testimony.

Because the practice of immigration law addresses a broad and diverse set of legal issues, the following areas are most pertinent for the application of psychological expertise (Evans, 2000):

1.The assessment of torture and rape for asylum and Convention Against Torture (CAT) claims.

2.The assessment of physical, sexual, and psychological abuse and extreme mental cruelty in claims for permanent residence of a battered spouse or children of a U.S. citizen under Subtitle G – Protections for Battered Immigrant Women and Children of the Violence Against Women Act of 1998 (VAWA).

3.The assessment of extreme hardship to a qualified spouse, child, and parents in suspension of deportation proceedings.

4.The assessment of recidivism and dangerousness for exceptions to mandatory deportation for aggravated felony and for parole from indefinite suspension.

Since then more IC forensic areas have developed, such as forensic assessment in U and T visa cases. Each of these areas calls for different psychological expertise, including an understanding of the underlying psychological research literature for each and the use of different psychological methodologies appropriate to the assessment of each of these issues.

In addition to professional and scientific knowledge, it is essential that the forensic psychologists have a working understanding of the legal issues relevant to each IC area. Gathering, weighing, and presenting psychological assessment information for the IC is significantly different from standard clinical protocols. The most important differences between these role is that the forensic assessor must take an objective, neutral stance in the evaluation, though, especially in the case of the assessment of torture and psychological trauma, neutrality must be understood in a broader context (Evans, 2005).

Relationship Between the Immigration Attorney and Forensic Assessor

One of the mos...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• List of Illustrations
• About the Authors
• Foreword
• Acknowledgments
• Introduction: Our Personal Journey
• PART I: Conceptual Foundations
• PART II: Applications to Forensic Practice
• PART III: Methodology
• Bibliography
• Index