Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE





The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

  • Article: U and T Non-immigrant Visa Petitions: Psychosocial Evaluations by Mark S. Silver

    U and T Non-immigrant Visa Petitions: Psychosocial Evaluations

    by


    This chapter will explore the u and t nonimmigrant visa petitions from the perspective of the psychosocial evaluator in an effort to help the immigration lawyer better understand the criteria and clinical considerations in the process. This chapter will explore the legal background to the u visa, provide a brief comparison to the t visa, examine the legal standard of “substantial harm,” and the accompanying mental health considerations. However, readers are also encouraged to review the chapters on spousal abuse and asylum because victims of domestic violence and victims of persecution suffer similar harms. Additionally, comparing and contrasting these different kinds of victims and the harms they suffer will elucidate a better understanding about their particular needs and situations.

    Legal Background To U Visa

    BACKGROUND

    The U nonimmigrant status is a visa reserved for victims of crimes who have suffered substantial mental or physical abuse—as a direct consequence of criminal activity—and who are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes while at the same time offering protection to victims of such crimes. The law was enacted as the Trafficking and Violence Protection Act. Pub. L. No. 106-386, 114 Stat. 1464 (2000) (including the Battered Immigrant Women’s Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1518 (2000)), however the regulations for granting U visas were not published until 2007.

    Eligibility

    A non-immigrant who has suffered “substantial physical or mental abuse” as a result of having been a victim of a qualifying criminal activity that violated U.S. laws may petition for a U visa if the person has direct information concerning the criminal activity. This may include providing a personal statement, eyewitness testimony, and other forms of assistance. The petitioner must also provide a U Nonimmigrant Status Certification (Form I-918, Supplement B) from a U.S. law enforcement agency that demonstrates the petitioner “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the criminal activity.

    Certifying Agency

    Certifying agencies can be Federal, State or local law enforcement agencies, prosecutors, judges or another authority that investigates or prosecutes criminal activity. Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise.

    Extension Beyond Four Years

    U nonimmigrant status cannot exceed four years. However, extensions are available upon certification by a certifying agency that the foreign national’s presence in the United States is required to assist in the investigation or prosecution of the qualifying criminal activity.

    Green Cards Eligibility

    For the successful U visa applicant who wishes to obtain lawful permanent residency status the person must have been physically present in the United States for a continuous period of at least three years since the date of admission as a U nonimmigrant and the person must not have unreasonably refused to provide assistance to law enforcement since receiving the U nonimmigrant visa. In other words, if after the visa is provided and the person refuses to further assist the police and/or prosecution in furthering their case against the criminal(s) then the person may become disqualified from green card eligibility. Finally, the certifying agency must determine that the person’s continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the national or public interest.

    Criminal Activity Defined

    There is a broad range of criminal activity that would satisfy the eligibility requirement noted above. The present is a partial though largely inclusive list most likely to cover most referrals to the forensic evaluator’s office. It is important to note that while a core set of areas are explored in the forensic psychosocial evaluation the evaluation should also be tailored to consider the specific crime that the victim has suffered and any consequent harm(s) that he or she endures.

    · Abduction

    · Abusive Sexual Contact

    · Blackmail

    · Domestic Violence

    · Extortion

    · False Imprisonment

    · Genital Female Mutilation

    · Felonious Assault

    · Hostage

    · Incest

    · Involuntary Servitude

    · Kidnapping Manslaughter

    · Murder

    · Obstruction of Justice

    · Peonage

    · Perjury

    · Prostitution

    · Rape

    · Sexual Assault

    · Sexual Exploitation

    · Slave Trader

    · Torture

    · Trafficking

    · Witness Tampering

    · Unlawful Criminal Restraint

    · Other Related Crimes

    Challenges

    There are several crucial challenges that should be noted in the U visa process. First, while U visa law is mandated federally, it is implemented inconsistently by local law enforcement. This is akin to Medicaid, which is a federally mandated healthcare provision, but implemented from state to state in rather inconsistent ways based on the values, culture, and financial means of the state.

    Second, a limited number of U visas are issued each year (10,000) by the DHS, yet there may be more than double the number of applicants. This evaluator has reviewed several cases where the petitioner’s case certainly appeared to merit the criteria and eligibility factors, and yet the case was denied. Immigration lawyers and paralegals that manage these cases believe that the cases did in fact have merit, but because the visa allocation for this category was reached the petitions were denied.

    Third, this evaluator has encountered several cases where an undocumented alien has been quite helpful in several respects with both the police and prosecutor’s office, and even offered to continue to assist in whatever matter may have been required in the future, and yet for whatever reason the prosecutor's office, in particular, were either reluctant or outright refused to provide in writing or memorialize in any way the assistance provided by the victim. As such, lawyers must “get it in writing” before proceeding with the petition. As a forensic evaluator, it is also quite helpful to have in hand a one or two page letter from the police or prosecutor’s office that fully outlines not only the manner in which the undocumented alien was a victim, but also a detailed explanation of the assistance that he or she provided the police and/or prosecutor’s office.

    Fourth, support from a forensic evaluator seems crucial in U visa petitions because the substantial harm that the undocumented alien has suffered is quite often non-physical in nature. As such, the emotional, psychological, and related harms that the person has endured must be documented in the context of his general life and his ability to function in his community, as will be noted in a section below.

    Comparisons with the T Visa

    BACKGROUND

    Before discussing the ways “substantial harm” and related mental health issues can be conceptualized in a U visa petition it is important to consider the T visa petition in comparison to the eligibility for the U visa.

    Eligibility

    To be eligible for a T visa, the victim must have traveled to the United States by way of being recruited, forced, abducted, or deceived by the perpetrator of human trafficking and the victim would not otherwise have been present in the United States if it were not for the action of the trafficker. Human trafficking under U.S. law is defined based on the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons.

    Dropped Petitions

    This evaluator has consulted on several cases where victims of trafficking appeared eligible for a T visa, and yet in none of these cases did the victim follow-up on the petition and the evaluation. The reasons remain unclear, however it would appear that many of these victims do not proceed with the petitions as they remain terribly frightened of negative repercussions to themselves and their family members. It is also important to understand that many of these victims are terribly ashamed of what has occurred and they may fear that they will be ostracized within their communities if they follow through with the petitions. Finally, many (or perhaps all) of the victims have been traumatized by their experiences and they may remain quite distrustful and even paranoid of those persons who have their best interest at heart, including their lawyers and mental health workers. These factors too may result in the victim’s wish to discontinue the petition.

    Elements of the T Visa

    The elements of the crime fall into three categories: Process, Ways and Means, and Goal. Adult victims of human trafficking must prove that the crime involves at least one element from each of the above three. Child victims of human trafficking need only show an element from the Process and Goal categories.

    1. Process pertains to the recruitment, transportation, transferring, harboring, or receiving of a person in the course of human trafficking. This category concerns the means by which the traffickers physically transferred the victim from outside of the United States into the United States, including maintaining the victim in the United States.

    2. Ways and Means pertains to the threat, coercion, abduction, fraud, deceit, deception, or abuse of power used against the victim of human trafficking as a means to ensure that the person is not only transferred into the United States for the purpose of human trafficking, but also remains in the United States through physical and/or psychological and/or emotional control or coercion.

    3. Goal pertains to the desired outcome by the human trafficker, including most predominantly that the victim is made to work in prostitution, ****ography, suffers violence and / or sexual exploitation, forced labor, involuntary servitude, debt bondage, or slavery.

    Are all Victims of Human Trafficking “Victims” and is There Necessarily Suffering?

    It is easier to answer the second part of this question. Whenever a person is threatened, coerced, abducted, or is a targeted for fraud, deceit, or is deceived, especially by a stronger power than the individual, then the person is by definition a victim of physical and / or psychological and / or emotional harm and / or suffering to at least a minimal degree. In fact, in spousal abuse cases the greatest harm that the abused spouse suffers is not in a physical form, but rather through the control, manipulation, and coercion of the abuser, which is ostensibly non-physical in nature.

    The first part of the question is much more difficult to grapple with because it would appear that there are some “victims” who by their own admission wish to engage in prostitution, for example, as a means to gain financial security for themselves and / or their family members. Nonetheless, the victims of trafficking simply cannot fathom what they will experience through the trafficking or the work they will be forced to undertake after arriving in the United States, and as such it is reasonable to consider all these individuals victims as well. From what this evaluator has encountered, in some ways it is these individuals who are at the greatest risk of harm because they may fool themselves into believing that they could work in this manner for a few months to provide greater financial security to themselves and their families only to discover that the life they encounter as a prostitute in the United States is physically and psychologically traumatic and permanently undermines their personal sense of safety, self-esteem, and personal dignity, and they may in time come to feel quite worthless, sad, anxious, and depressed.

    No “Certification of Helpfulness” Requirement in T Visa

    T visa applicants are not required to obtain a “Certification of Helpfulness” from a qualifying agency. This is extremely important because it essentially removes the victim from having to prove that she has assisted the police and / or prosecutor’s office with regard to her case. It is also important because many of these victims are often quite timid given what they have experienced and they probably would not have the emotional wherewithal or energy to follow through in such matters. Nonetheless, the T visa applicant is strongly encouraged to obtain a declaration from a law enforcement officer as primary evidence that she was a victim of human trafficking crime to submit with her application to the USCIS.

    T Visa: Extreme Hardship

    T visa applicants will need to show that their removal from the United States would cause “extreme hardship involving unusual and extreme harm.” This is one of the highest levels of burdens in jurisprudence and reminiscent of the exceptional and extremely unusual hardship standard applicable in cancellation of removal (deportation) cases. In T visa applications the hardship analysis is based on several criteria.

    1. Medical Needs: This criterion considers any and all medical needs or psychological services that cannot be reasonably met in the victim's country of origin. Many Third World countries have very limited access to proper healthcare, the availability of healthcare may be dependent on the person paying extremely high or unaffordable prices, and there may also be certain kinds of healthcare that the victim requires that simply may not be available. For example, the victim may require psychiatric, psychological, or psychosocial services and perhaps the need for regular gynecological examinations because of the possibility of sexually transmitted diseases as a victim of trafficking.

    2. Government Issues: This criterion considers if the government in the victim’s country of origin will not protect her from further harm or prosecute the trafficking offenders. If the government in the victim's country of origin either cannot or will not protect the person from further harm and/or refuse to prosecute defenders of the trafficking then this could meet a hardship criteria.

    3. Social Stigma: This criterion considers if the victim would be stigmatized in her home country as a result of being a trafficking victim. It is reasonable to believe that if the victim of trafficking is identified as a former prostitute, then upon her return to her country of origin she may well become ostracized in her community, a pariah, and her educational and / or employment opportunities may be severely curtailed, as would her ability to integrate back into her family of origin and/or her community in general. This may also restrict the victim’s ability to marry, enjoy a normal lifestyle, and it may paradoxically lead to even greater victimhood and extreme hardships. One would imagine that this would be especially true where there are strict cultural and/or religious dictates in the victim’s country of origin, which would preclude the victim from enjoying a normal lifestyle in her community.

    4. Other Factors: Finally, “any other factors particular” to the victim’s case can be relevant. As one who undertakes forensic psychosocial evaluations, this would certainly serve as an opportunity to widely explore the client’s family history and background, as a means to gain a better understanding of the extreme hardships that she would suffer in her particular case given her individual needs and issues.

    Conceptualizing Harm In U Visa Petitions

    BROADLY CONCEPTUALIZE HARM

    This section will focus on conceptualizing harm in U visa petitions. Because so many referrals for forensic psychosocial evaluations have little or no physical harm component, the psychological and/or emotional and related harms are explored here in detail.

    Psychosocial Evaluation

    Psychosocial evaluations employ a broad clinical historical analysis that investigates the client’s development and background. These matters may appear routine or even unimportant to the immigration lawyer in a U visa petition, however this analysis can provide a treasure trove of information for the forensic evaluator. This information can better inform the forensic evaluator as to how the criminal incident has negatively impacted the client given his or her particular life and history, as will be noted below. The following is a general list of major considerations in the psychosocial evaluation.

    · Family-Systems Analysis

    · Violence, Abuses, Trauma, War

    · Childhood Development

    · Volunteer Community & Charity

    · Social Skills & Peer Rejection

    · Arrests & Criminal History

    · Sexual Development

    · Languages - spoken/written

    · Hobbies & Interests

    · Role & Communication

    · Community Ties, Friends

    · Legal Issues

    · Education & Employment

    · Religious Devotion

    · Finances & Poverty

    · Support System/Caregivers

    · Military Service

    · Cultural Issues & Role Models

    · Self-care (ADL’s)

    · Mental (DSM) & Medical Health

    · Drug & Alcohol History

    · Racism & Prejudice

    Egg Shell Rule

    There is a general principle in personal injury civil litigation that states, “you take your plaintiff as you find him.” That is, the physical and/or emotional harm that the client suffered prior to the present injury—a pre-existing condition—does not make the client any less entitled to compensation for injuries that would have been caused to a similar person under similar circumstances who did not have a pre-existing physical or psychological condition. This is especially important in immigration cases where so many of the U visa petitioners previously resided in Third World countries where they suffered a wide variety of harms, including violence, poverty, sexual abuse, and much else. As such, the client’s background must be carefully considered because the harm that he suffers in the criminal incident may well trigger deep-seated fears, sadness, anxiety, and other negative issues particularly given the uncertainty of his situation and his family’s well-being. For this reason, I always request that the entire family attend the evaluation to provide a parallel history and relevant feedback regarding the ways in which the victim of the crime has been harmed by the criminal incident. In summary, it is first important to ask in what ways the client is fragile or vulnerable to psychological and/or emotional harm given his particular history, and current lifestyle and circumstances before considering his current life.

    Lifestyle and Circumstances Issues to Consider

    The following considerations should be included when evaluating the harm the person has suffered as a result of the criminal incident.

    1. Marital / Family Dysfunction

    Although not commonly considered in U visas, marital dysfunction (and even dissolution) is an extremely important area of consideration just as it is in civil litigation. That is, it is not unusual for victims of crime who have suffered trauma to also experience a breakdown of close interpersonal relationships, including marriage. It is not unusual for a marital partner to pull away from his spouse, sexual intimacy may decrease or cease altogether, and the overall quality of marital life for the victim may be terribly impacted. Several spouses of victims have informed me how the victim has been transformed into a different person and may react in an irritable, angry, or other negative manner that appears uncharacteristic for that person. More broadly speaking, children of victims of crime have also noted how their parent has become less caring, less protective, and generally less emotionally available to them. Taken together, this material can greatly inform the negative impact on the victim’s family life.

    2. Community Issues

    Several crime victims that I have interviewed have found it all but impossible to continue to enjoy or function in their community after the crime has occurred. Victims may feel unsafe (or even paranoid) walking from home to public transportation, or the victim may be fearful to utilize basic services in the community. For example, a client was attacked near his workplace and afterwards felt quite uncomfortable returning to his place of employment, which thus caused terrible financial harm to his family. Another client was robbed outside of a building where he worked as the superintendent and rent collector, and this made it extremely difficult for him to continue in his duties, such that he continually feared being terminated from his job, which would also have also resulted in the family losing their rent-free apartment in the building. These matters tend to be even more serious when there are multiple attackers and not all have been apprehended or identified. In such situations, the victim can never be quite sure if one of his assailants is waiting for the right moment to take revenge on the victim who has cooperated with the police and/or the prosecutor’s office. Finally, these issues may be so serious that it may require major lifestyle changes, such that a victim may find the need to leave his community and/or the city altogether and begin afresh somewhere else.

    3. Psychological / Cognitive Harm

    The most important harm to consider from the perspective of the lawyer is psychiatric and mental health harm. However, it is also important to consider the psychological harm that the victim has suffered in a broader sense. That is, it is crucial to inquire as to how the criminal incident has altered the client’s overall thinking about himself, others, and his surrounding environment. Again, such information is best elicited with other family members present, or in a parallel interview, as the client himself may not even be aware or may be unable to articulate how the criminal incident has changed his life.

    This information can also be obtained by speaking with the client about how the criminal incident has effected his decision-making, general outlook on life, frustrations and vulnerabilities, disappointments, resentments, conscious and unconscious motivations, and in what ways the individual feels particularly harmed, angry, and resentful. This is especially crucial if the person now suffers from erratic moods, unstable behaviors and a general change in his overall personality due to a sense of shock, helplessness, or horror. The person may also suffer specific cognitive harm, such that family members may report that the client now experiences confusion, disassociation, disorientation, poor short-term memory, general forgetfulness, and greater difficulty processing and/or retaining new information.

    The client's overall self-esteem may be greatly harmed, such that the person may now suffer from poor self-concept, self-doubt, self-recrimination, and a general feeling of incompetence even in areas of life that the person previously mastered. There are also individuals who suffer due to a fundamental alteration in their personal identities. That is, in some cases the person may have previously viewed himself as confident and capable, yet after becoming a victim of criminal harm the individual finds that his sense of self is completely altered and he may begin to question his identity, personal or cultural or religious values, and even his personal goals. Finally, this tends to prohibit the individual from properly assessing his own strengths and weaknesses, and it can interfere in his ability to continue in a career or to engage in personal relationships.

    5. Physical Harm

    A physician is best qualified to determine physical harm. However, the victim may also suffer specific forms of harm that are not readily obvious in a general examination with a primary care physician. Some victims of harm and/or trauma may experience the on-set of headaches, migraines, dizziness, nausea, various abdominal pains, or they may begin to experience general aches and pain in the neck and back. Other victims of harm may complain of general fatigue, low energy, malaise, or discomfort. This may develop as a direct result of physical harm in the course of the criminal incident, however it may also mean that the person has reacted to being a victim by expressing psychological trauma through somatic, that is, physical manifestations. This may also be expressed through obsessive or compulsive behaviors, including trichotillomania (hair pulling) and dermatillomania (skin picking).

    6. Functional Harm

    Functional harm concerns the limitations, impairments, or deficits in daily life the victim endures as a result of the criminal incident. For example, the victim may find himself much less able to engage in shopping or cooking because he fears venturing into the community given the possibility that he may encounter his assailants again. The victim may find that he needs a caretaker to assist with various activities of daily living that require executive functioning, such as the organizing of bills and household planning. In other words, the person may simply not be functioning in the same way that he did before the criminal incident and this may serve as an important reflection of how the person’s overall quality of life has been harmed, perhaps fundamental way. Additionally, the victim may discover that he is no longer interested in various hobbies, interests, and other community activities that were previously an important part of his life.

    When to Get an Evaluation

    The evaluation should be undertaken soon after the criminal incident has occurred. This is because there may be severe psychological harm immediately after the event, which wane as the days and weeks pass on. For this reason, when the evaluation does occurs weeks, months, or even years after the criminal incident has occurred, the client should be encouraged to remember as accurately as possible the events of the criminal incident and his experiences both during and afterwards. It is precisely because criminal attacks are traumatic that the client may wish to minimize the negative effects that it has had on his life in an effort to stave off frightening memories. Nonetheless, it is the job of the forensic evaluator (and the lawyer) to bring the victim back to the criminal incident so that what is documented is not simply the client’s current life, but also the harm that he suffered both during and in the immediate aftermath of the criminal incident.

    Even when the evaluation does occur soon after the criminal incident it is best to follow-up with the client for several sessions to determine the degree to which the person continues to suffer harm, but also to consider if new harms emerge. That is, there are instances when a person will suffer significant trauma, however the full range of harms do not emerge until later. For example, it is not unusual for victims of car accidents to walk away seemingly unharmed and yet develop lower back and neck pain days or even weeks afterwards even in the absence of a consult with a personal injury lawyer, especially if the person engages in strenuous activities. Similarly, the victim of a criminal activity may believe that he is psychologically stable, however several weeks or months afterwards an anxiety-provoking issue arises and suddenly the individual discovers that he displays unstable moods and erratic behaviors, rather than contend with the matter in his usual fashion.

    Types of Harm

    Physical – Physical harm may or may not occur in a criminal incident. Some criminal acts are based on a physical action, such as sexual assault, however physical harm may also occur during an armed robbery. For example, in a recent case several assailants physically held a client while the ringleader brandished a gun and forcibly took the client’s wallet. While the robbery was the chief component of the criminal act the physical restraint by the other assailant remained an important part of the case. In another case, assailants wished to detain the client until he cooperated in a specific financial manner. To do so, the client was forced to remain in a vehicle for several hours. Although the client was not physically harmed the act of kidnapping is a physical restriction in itself. Even if the client does not suffer direct physical harm in the course of the criminal act, the perpetrator may act in an aggressive and/or menacing manner and move about in a way that threatens or otherwise frightens the client.

    Emotional – Emotional harm tends to focus on such issues as negative feelings and emotions that the victim has internalized as a result of the criminal incident. These may include feelings of sadness, fear, shame, humiliation, betrayal, panic, loneliness, anxiety, uncertainty and others. The victim may feel that he has changed in a fundamental way and yet he may find it difficult to articulate the alteration in his emotions. For this reason, a parallel history from close family members could be quite helpful.

    Psychological – Psychological harm tends to focus on issues related to coercion, manipulation, control, and related psychological injuries. The client’s self-esteem, self-concept, and other aspects of his identity may have been significantly psychologically injured as well. For example, after being the victim of a crime the person may no longer view himself as self-sufficient or capable, but rather as a passive victim and may even blame himself for not doing more to fend off the perpetrator, which can lead to self-recrimination and even self-hatred.

    Financial – While there may be direct financial harm in the course of the criminal act, many clients have also reported lost days of work because of the need to cooperate with the police and / or prosecutor, and some clients have even reported significant financial loss as they were forced to leave their place of employment because they wished to change their lives in fundamental ways, or for the sake of perceived safety.

    Verbal – Verbal abuse is defined as any negative or derogatory words directed at the victim, including disguised jokes (racism), threats, name-calling, the use of demeaning terms, and much else. For example, the client may have relocated to the United States from a place where he previously suffered ethnic or religious persecution or threats, and the verbal abuse heard by the victim in the course of the criminal incident may trigger deep-seated trauma for the client regarding his sense of safety and well-being.

    Summary

    In summary, there is a wide array of harms—both overt and nuanced—that must be considered in the U visa evaluation. However, there may also be specific mental health issues that also require analysis.

    Psychiatric Issues

    POSTTRAUMATIC STRESSED DISORDER

    Criterion A: stressor - The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (1 required)

    1. Direct exposure.

    2. Witnessing, in person.

    3. Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental.

    4. Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

    For most U visa petitioners, their experience as victims will occur as a single episode and / or they will be direct witnesses to a criminal act. It should be noted that although a person may not be the intended or direct victim that person could nonetheless suffer serious harm even if the person is objectively viewed as a passive witness. In some cases, the passive witness may suffer even greater harm because of deep feelings of guilt that he failed to act in a responsible manner to help another person, or because he remained unharmed. This is sometimes called “survivor’s guilt.”

    Case Example. Several mechanics were stunned by a broad daylight armed robbery. Three mechanics were ordered to lie facedown on the floor while their close friend, the manager, was forced to open the vault after which he was shot in the chest. The mechanic who petitioned for the U visa heroically ran after the robber and he also assisted in the apprehension by flagging down a police officer on the street. Still, he retained a deep sense of guilt that he did not intervene earlier before his manager was shot even though it is quite clear that doing so would have further endangered his life. As such, although he was a passive observer to the robbery and the shooting the psychological trauma he suffered was quite serious.

    At first glance, it would not appear that a person who has been the victim of a robbery would qualify for the diagnosis of posttraumatic stress disorder given the above definition. However, there is no question that persons who are exposed to even minor crimes, such as pickpocketing, can in fact suffer trauma as a direct result of the incident. While the large majority of crime victims evaluated in U visa cases were not exposed or threatened with immediate death—and may not have even been exposed to actual or serious injury—nonetheless this criterion must be understood in its broadest sense if we are to understand the psychological consequences.

    Case Example. On a personal note, this evaluator was the victim of pickpocketing about a year after relocating from Canada to New York City in 1994. The incident took no more than a few seconds, I was unharmed, and only about $40 was stolen, however I remained quite shaken—physically and psychologically—for several months and I experienced many of the criteria in this section of posttraumatic stress disorder.

    This example was provided to show something extremely crucial for this section. That is, the evaluator and lawyer must adopt the subjective perspective of the victim’s perceived harm rather than objective harm. That is, while one person may experience an event as relatively routine another person may experience that same event as horrifying. It is possible that a lifelong New Yorker who was pickpocketed may even have laughed off the situation with friends that same evening, however as a neophyte New Yorker working in a high crime area in Harlem I was terribly shaken by the pickpocketing incident. As such, the evaluator must get at the perceived harm of the victim from his subjective vantage point.

    Criterion B: intrusion symptoms - The traumatic event is persistently re-experienced in the following way(s): (1 required)

    1. Recurrent, involuntary, and intrusive memories. Note: Children older than 6 may express this symptom in repetitive play.

    2. Traumatic nightmares. Note: Children may have frightening dreams without content related to the trauma(s).

    3. Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. Note: Children may reenact the event in play.

    4. Intense or prolonged distress after exposure to traumatic reminders.

    5. Marked physiologic reactivity after exposure to trauma-related stimuli.

    Victims of crime may find that they persistently re-experience the trauma through recurrent, involuntary, and intrusive memories that may even plague their focus and thinking. Victims of crime and harm in general may find that their subconscious reenacts what they experienced through metaphors in their dreams, such as seeing unknown assailants chasing them or victims may find themselves in the same or similar situation without means of escape. Victims may find themselves quite confused for days, weeks, or even months afterwards at times feeling disoriented, experience periods of dissociation, and even loss of consciousness with or without syncope (dizziness). Some of these experiences may be accompanied by physiologic phenomenon, including dizziness, nausea, and headaches. Most importantly, victims of crime may find themselves experiencing intense or prolonged distress when reminders, or triggers, stimulate painful or traumatic memories. These triggers may be quite nuanced and the victim may not even be fully aware that triggers themselves are causing significant psychological and/or physiological distress, and in some cases the client may erroneously assume that the distress emanates from another source.

    Criterion C: avoidance - Persistent effortful avoidance of distressing trauma-related stimuli after the event: (1 required)

    1. Trauma-related thoughts or feelings.

    2. Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

    The victim may make persistent efforts to avoid trauma-related stimuli, including avoiding conversations, people, places, activities, situations, and almost anything else that reminds him of the harm and victimhood that he suffered. In some situations however, this may be unavoidable and it is the very unavoidable nature of the problem that triggers (and re-triggers) painful memories, thoughts, and feelings.

    Case Example. A victim was physically accosted by a gang of youths in his neighborhood in the inner city and he was deeply traumatized. However, the victim still needed to walk through the same street, encounter friends from this group of thugs, and yet the victim could not leave his community for various reasons. As a result, the victim remained extremely fearful and anxious each and every day living his life in the community walking on the same street and encountering “similar” people. The client at one point felt that he resolved his suffering from the original attack, however he believed that his on-going inability to function in a normal manner existed as a direct result of encountering these reminders every day in his home community environment.

    Finally, it should be noted that in some instances victims of harm generalize an aspect of the attacker or the situation and this may also trigger painful memories, feelings, and thoughts or alter their behavior. This may occur in extreme ways.

    Case Example. A woman who was the victim of domestic violence became so traumatized even after the divorce and permanent separation from her spouse that she nonetheless found herself uninterested in any romantic relationships whatsoever from that point forward. A number of women in such situations have confessed that they simply no longer trust intimacy with men and may redirect their focus towards exploring the possibility of same-sex relationships.

    Criterion D: negative alterations in cognitions and mood - Negative alterations in cognitions and mood that began or worsened after the traumatic event: (2 required)

    1. Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol or drugs).

    2. Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous.").

    3. Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences.

    4. Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt or shame).

    5. Markedly diminished interest in (pre-traumatic) significant activities.

    6. Feeling alienated from others (e.g., detachment or estrangement).

    7. Constricted affect: persistent inability to experience positive emotions.

    Victims often report an inability to recall key features of the traumas due to possible alterations in cognition because of mental health issues, but also because of the need to defensively block out these extremely painful memories. The victim may retain persistent negative beliefs and expectations about himself and the world believing that he will never again find enjoyment in life. The victim may continue to blame himself for being a victim concerning the resulting physical and emotional harms and consequences. The victim may retain a deep sense of horror about what has occurred, anger at himself (more so than even towards the attacker), and perhaps guilt or shame for ever finding himself in a situation where he was vulnerable to being a victim. Some victims will suffer marked diminished interest in daily activities (anhedonia), including those activities that he previously enjoyed on a regular basis. Victims may feel quite alienated and even hostile toward others and this detachment and estrangement may make the victim feel further isolated and depressed. The victim may also show a constricted affect, that is, a persistent inability to experience positive emotions.

    Criterion E: alterations in arousal and reactivity - Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (2 required)

    1. Irritable or aggressive behavior.

    2. Self-destructive or reckless behavior.

    3. Hypervigilance.

    4. Exaggerated startle response.

    5. Problems in concentration.

    6. Sleep disturbance.

    The victim may suffer or exhibit a wide range of self-destructive or self-injurious conduct that may be reckless or aggressive in nature informed by anxiety. Such persons are also often quite hypervigilant about their surroundings, they may exhibit a startled or exaggerated response to minor stimuli, at times the person may encounter severe difficulty with focus with or without memory impairment, and erratic sleep patterns. Overall, these symptoms have continued for more than one month with significant symptom-related distress or functional impairment (e.g., social and occupational). These disturbances are not due to medication, substance use, or other illness.

    Depression

    Victims of harm, including victims of crime, may experience symptoms of depression separate and apart from Posttraumatic Stress Disorder. The client may find himself experiencing feelings of hopelessness and helplessness, erratic sleep and/or appetite patterns, bouts of crying or tearfulness, difficulty getting started in the morning because of low-energy or fatigue, poor concentration or an inability to focus that may be accompanied by short-term memory problems, feelings of worthlessness, low self esteem, self-blame, and excessive or inappropriate guilt for ever having allowed himself to become a victim or to have placed himself in harms way, and a general sense that the person cannot enjoy life as he previously did.

    Self-Injurious Behaviors

    Although suicidality remains a serious concern in all mental health evaluations, especially when the person suffers from helpless feelings of despair and deep psychological pain, the more common concern relates to self-injurious and/or self-destructive behaviors. Persons who have suffered trauma may act in a way contrary to their own interests and may sabotage or in some ways undermine their family relationships, employment, or otherwise disengage or harm their regular routine. In general, it is important to inquire if the victim has markedly altered his routine or regular patterns of behavior, as this may indicate the presence of trauma.

    Meaningless Crime: Existential Harm

    Victims of crime, and victims of harm in general, may wish to find meaning in the conduct of their perpetrator. In reality, of course, crimes are committed for a wide variety of reasons and victims are chosen for a wide variety of reasons. Criminals may act with impulsivity, careful planning, or in a psychopathic manner. Victims may be chosen quite randomly or because a particular individual appears vulnerable or fearful. It is important for the evaluator to consider this because the victim may find that his worldview has changed as a result of the crime. The victim may claim that he no longer understands (or trusts) the world around him, he may question his religious values, moral tenets, and he may also view himself and others around him in a more negative light. These are nuanced changes that the victim suffers and they should be documented because it may produce a better and even profound understanding about the underlying harm that the victim has endured, particularly because these issues may remain with the client for many years into the future and fundamentally alter the victim’s decision-making in many areas of his life.

    Psychosis: Delusion and Hallucinations

    This matter was adequately covered in a previous chapter, however it is worth repeating that a client may appear “normal” yet upon closer examination it is evident that he has not only suffered trauma, depression, and anxiety, but he is also out of touch with reality (that is, psychotic) as a result of delusions (false beliefs) or hallucinations (false perceptions). The delusions are often adaptive in nature for the purpose of self-protection and may include suspiciousness, guardedness, a low sense of trust in others, or the victim may suspect without sufficient basis that others are trying to harm or exploit or deceive him.

    The more serious problem is that the victim may begin to unjustifiably doubt the loyalty of even close family members and friends and he may become reluctant to confide in others about important matters, including related to the immigration case. If the person also reads hidden meaning into relatively benign remarks then it may become quite difficult for the victim to open up about his experiences and the resultant harm that he has suffered. The victim may also perceive attacks on his character, person, or reputation and believe that his esteem in the eyes of family members and the community is now diminished because he was a victim of a crime or maybe because he allowed himself to become involved in a situation where he suffered harm.

    Another serious issue to consider is hallucinations. Victims of crime may develop hypersensitivity to objects and people in their immediate area resulting in auditory or visual hallucinations, and the victim may even develop tactile hallucinations, that is, the perception that someone or something is touching them. This is also undoubtedly rooted in hypersensitivity to the real or perceived dangers of the surrounding environment. At times, the client even may complain of somatic (bodily) issues and these too must be considered in the course of the evaluation although they are usually phenomena separate from hallucinations. Client’s who complain of aches, pains, and other somatic issues should also be referred to a physician to rule out a medical etiology.

    Getting Help

    When an individual suffers substantial physical harm medical care is almost always sought with a healthcare professional. However, when substantial psychological harm occurs in the context of a crime quite often the victim does not seek the assistance of a healthcare professional. There are various reasons for various reasons. This remains an important point of contention for adjudicators in U visa cases because many petitioners claim to have suffered depression, anxiety, and even posttraumatic stress disorder, and although the person may even exhibit debilitating symptoms of mental health problems the person neglects to consult with a mental healthcare professional to alleviate or even address these issues.

    It is important to understand that individuals contend with their mental health problems in rather idiosyncratic ways. Some individuals prefer to keep these matters completely private, others gain spiritual support through fellow parishioners and clergy in their religious institution, others rely on the emotional support of family members, and yet others seek nonprofessional mental healthcare workers and helpers in the form of support groups and counseling.

    As noted in previous chapters, for many of our clients psychiatric care is simply anathema to their cultural background and mental health diagnoses stigmatized such that even close family members may discourage the client from benefiting from mental health professional care. Finally, some clients may simply feel ashamed or frightened about approaching a mental healthcare professional, or may feel a deep sense of self-blame for ever finding themselves victims of a criminal act. This must be carefully explained in the evaluation so that the adjudicator does not adopt the incorrect assumption that the absence of ongoing mental health care necessarily equates with the absence of mental health issues.

    This dovetails towards an important strategic concern. That is, lawyers should refer U visa petitioners only to forensic evaluators who have an understanding about the broad issues involved, as they will focus not simply on the client’s presenting psychosocial problems, but structure the evaluation specifically for the purpose of undertaking a forensic evaluation for the U visa petition. General mental health practitioners may not have the sensitivity or training, and may therefore miss out on key issues. Although general mental health professionals may be well-trained, they simply may not have an understanding about what is at stake and thus focus on long-term therapeutic objectives that may not fully uncover the broad range of psychological harm that the client has suffered. Additionally, many healthcare professionals may be unwilling—even after several months or years of therapy—to provide a forensic report or even to turn over their clinical progress notes at the petitioner's request.

    Conclusion

    This chapter has focused on the U and T nonimmigrant visa petitions from the perspective of the psychosocial evaluator in an effort to help the immigration lawyer better understand the criteria and clinical considerations.

    Copyright 2016 Mark S. Silver. Reprinted with permission.


    About The Author

    Mark S. Silver: I am New York State Licensed Clinical Social Worker. I have a Combined Specialist Bachelor of Arts degree in History and Political Science from the University of Toronto and a Master of Arts degree in Political Science from the University of Western Ontario. I have also completed a Master of Social Work at the University of Toronto, a post-graduate Certificate Program in Family Therapy at Smith College, and a Doctor of Psychology at the Southern California University for Professional Studies. In addition, I hold a Juris Doctor from the City University of New York, Queens College, and I am admitted to practice law in New York. I have published more than a dozen papers on forensic social work and mental health practice in criminal and immigration consultation for attorneys in various academic and practice journals, and I have lectured on various aspects of these subjects. I am the author of Handbook of Mitigation in Criminal and Immigration Forensics: Humanizing the Client Towards a Better Legal Outcome. Third Edition.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: