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  • Article: Extreme Hardship Factors Immigration Cases By Mark Silver

    Extreme Hardship Factors Immigration Cases

    by


    INTRODUCTION

    Background

    Extreme Hardship cases in immigration law comprise the bulk of all cases referred to my practice. In such situations, the client has close family members, including parents, spouse, or children who would suffer extreme hardships either if the client is forced to leave the United States alone, or if the family chooses to relocate with the client to his country of origin—assuming that this is even possible.

    This paper will explore what I have garnered as essential aspects of the forensic evaluation in mitigating extreme hardship immigration cases. It should be noted that many of these cases also involve a criminal or “illegal” matter, such that the respondent or petitioner must prove both extreme hardships and also mitigate the criminal matter. This requires a dual analysis for the mitigation expert.

    It is the contention of this author that the immigration defense lawyer must interweave the criteria for extreme hardships as key mitigating factors, as this truly affords the adjudicator the opportunity to fully consider and understand the client’s psychosocial issues as legal mitigating factors, rather than simply background information established for the sake of general argument. That is, it is crucial to demonstrate a concrete nexus between the legal standard and the underlying psychosocial issues that support the extreme hardship analysis. I have always believed that criminal and immigration mitigation is not simply an effective tool for the sake of argument, but a necessary factual underpinning to support the factors in both statute and case law.

    Case Law

    A few key cases should be noted.

    Matter of Monreal , 23 I&N Dec. 56 (BIA 2001) –
The Board of Immigration Appeals (BIA) attempted to define the meaning of "extreme" and "exceptional and extremely unusual" in the hardship analysis.

    Matter of Recinas , 23 I&N Dec. 467, 470 (BIA 2002) – The BIA found that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Recinas further noted that any review of “exceptional and extremely unusual hardship” decisions from the Immigration Judge would start with a consideration of the factors in Monreal and Matter of Andazola, 23 I&N Dec. 319 (BIA 2002).

    Matter of Ige , 20 I&N Dec. 880 (BIA 1994) –
Facts must be independently considered and the hardship evaluated in the aggregate. “[W]e consider the critical issue... to be whether a child would suffer extreme hardship if he accompanied his parent abroad. If, as in this case, no hardship would ensue, and the fact that the child might face hardship if left in the United States would be the result of parental choice, not the parents deportation.”

    Matter of O-J-O -, 21 I&N Dec. 381, 383 (BIA 1996) – The adjudicator “must consider the entire range of factors concerning hardship in their totality to determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

    Matter of Cervantes-Gonzalez , 22 I&N Dec. 560, 565- 66 (BIA 1999) –
The BIA provided a list of factors they deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative.

    Matter of Hwang , 10 I&N Dec. 448, 451 (BIA 1964) – Extreme hardship is “not a definable term affixed and inflexible content or meaning, but necessarily depends upon the facts and circumstances peculiar to each case.”

    Typical or common hardships expected in removal or relocation does not in and of itself necessarily constitute extreme hardship. See Matter of Cervantes- Gonzalez, 22 I&N Dec. 560, 568 (BIA 1999);Matter of Pilch, 21 I&N Dec. 627, 631-32 (BIA 1996);Matter of Ige, 20 I&N, at 883 (BIA 1994);Matter of Ngai 19 I&N Dec. 245, 246-47 (Comm’r 1984);Matter of Kim, 15 I&N Dec. 88, 88-90 (BIA 1974);Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968); andHassan v. INS, 927 F.2d 465, 468 (9th Cir. 1991) and Perez v. INS, 96 F.3d 390 (9th Cir. 1996).

    CRITERIA IN THE HARDSHIP ANALYSIS

    Medical: The Lazy Doctor Dilemma

    Perhaps the most central consideration pertains to medical and physical extreme hardship issues. However, a common problem is that physicians tend to be lazy about explicating relevant medical issues for the client, such that serious problems are sometimes missed. For this reason, I recommend that the following outline is used to explain the medical and/or physical issues:

    1. Diagnoses – all major and minor medical and physical issues should be included, and any other healthcare considerations, including sub-clinical or shadow syndrome issues 


    2. Symptoms – detailed symptomatology in the past and present must be included, and not just major criterion of the pathology 


    3. History – this should include emergency room and clinic visits, and acute and chronic issues 


    4. Treatment – include all prescriptions, treatments and secondary aids, such as nebulizers for asthma, including what has and has not worked 


    5. Recommendations – all best medical practices should be included 


    6. Prognosis – what could occur if the child’s parent is forced to leave the United States and / or if the child is forced to reside in the parent’s country of origin 


    When this outline is used the reader will clearly understand what is at stake. Physicians are worried that this will be a time-consuming process, however this outline can be accomplished in just a few small paragraphs. This is essential because sometimes a child will have a common problem, such as asthma, yet the adjudicator may not regard this as serious. However, when a physician uses the above criteria the adjudicator will be more fully informed. Moreover, non-medical specialists, including occupational therapists, physical therapists, and speech therapists, should employ the above outline when describing healthcare issues in extreme hardship cases.

    Case Example. A child’s eczema condition appeared outwardly mild. However, the physician accurately reflected that the child’s eczema could become quite severe at times resulting in severe scratching, blisters, discoloration, crying, pain, insomnia, and even bleeding through the child’s cheek and neck. Most medications prescribed did little to alleviate the problem resulting in the need to utilize both prescription and non-prescription remedies to help control the serious situation, along with specialty consults with a pediatric dermatologist, pediatric allergy specialist, and other healthcare experts. When uncontrolled the child cannot socialize with peers and feels extremely self-conscious about participating in routine classroom activities. This physician outline provided a more comprehensive picture of what might otherwise have been viewed as a minor ailment.

    Use Concrete Examples of Medical & Psychological Harm

    Extreme hardship cases are theoretical in nature. That is, many issues presented concern future harm to the petitioner’s qualifying family members. For this reason, whenever possible it is essential to highlight the case with concrete examples of real harm that qualifying members have already suffered, or are likely to suffer. The following are a few key examples.

    One important example concerns children who visit the family member’s country of origin. Such children often become ill due to polluted water and food (that may contain viruses, bacteria or parasites), overwhelming heat, poor air quality, and disease- carrying insects, such that the children often suffer from various flulike symptoms, including fever, diarrhea, abdominal pains, gastrointestinal distress, loss of weight, dermatological issues (due to heat or mosquitoes), respiratory distress, sadness and anxiety (due to separation anxiety), fatigue, and related symptomatology—some of which may be life- threatening. Such children may not seek medical assistance and when they do they often find little or no relief from available remedies because the clinics are usually unsophisticated or inaccessible, or medications may even be fake.

    A second issue concerns the fact that many children who visit their family’s country of origin find that they must remain relatively secluded due to safety concerns. This experience can be strategically related in the report to reflect quality of life issues that the children endured while outside of the United States and the kinds of community experiences that the children are likely to encounter if forced to relocate there. Related issues could include the trip itself, which may indicate that travel to and from the petitioner’s country of origin may be prohibitively expensive, logistically difficult, and just unrealistic.

    A third strategy is to compare problems that qualifying relatives encounter in the United States with family members with similar issues who live in the client’s country of origin.

    Case Example . I saw a child in which there was a family history of asthma. The child was well cared for in New York given his frequent visits to physicians and medications, which stabilized his respiratory distress administered through a nebulizer during the night. The child had a grandmother in India with a similar condition who received similar medications. On the day of the individual hearing with the Immigration Judge I was informed that the grandmother had died. When I inquired about the death the petitioner explained that in India rolling power outages are quite common and this meant that the grandmother could not use the nebulizer at night, and as a result she died. This was a devastatingly concrete example of a disease that could be well managed in New York, but was life threatening in India due to the reality of the country conditions.

    Fourth, children are rarely separated from their parents for a significant length of time such that long-term separation due to an immigration case remains theoretical. However, it is not unusual for a client to be detained by immigration services for weeks or even months, and during this period children often experience Separation Anxiety Disorder and other clinical issues. This reflects the concrete reality of psychological (and physical) harm that the children suffer upon physical separation and can be useful as a means to extrapolate future clinical issues that the children would encounter if separated from a parent on a long-term basis.

    Case Example . A child suffered reactive depression and anxiety (Separation Anxiety Disorder) while his father was held in immigration detention. The child’s school grades dropped dramatically, he became aggressive with his peers, he could not sleep, he refused to eat, and became oppositional with his mother. It was clear that this child could not function without his father in the short term and that in the long-term his father’s absence could totally derail this child’s well-being.

    Qualifying Children

    The most serious consideration in extreme hardship evaluations concerns who should be included in the case. Every few months I see a case where a relevant family member was omitted either because he was not deemed a qualifying family member according to statute or because his position in the family was ignored.

    With regard to children it is not enough to simply ask parents the three basic questions: how many children do you have, what are their dates of birth, and where were they born. This is because the parents may understand the word “children” in a narrow manner given their cultural heritage or values. Additionally, the client may be embarrassed that he has not provided sufficient physical, emotional, or financial support to a child. This could mean that qualifying “children” will be left out of the analysis. As such, it is crucial to also include the following children in the evaluation:

    1. Step-children is an important category which is often omitted. 


    2. Adult children, as there is no age limit in assessing extreme hardships. 


    3. Non-residential children, as some children live with non-parental caregivers. 


    4. Illegal children, as the client may fear that a child residing illegally in the United States will be arrested. 


    5. Children outside of the United States. This may occur because of limited caretaking ability. 


    6. Dead children. This is essential in assessing the family’s overall stability. 


    7. Estranged children. The parent and child may have infrequent contact. 


    8. Non-biological children or minors, such as a dependent nephew who resides in the home. 


    Qualifying Geriatrics

    There is a significant bias towards creating cases around qualifying children rather than qualifying parents. In reality, a 70-year-old parent may be substantially more dependent on the client than a seven-year-old child who is generally healthy.

    It is important to outline the kind of care that a geriatric person may require, including assistance with medical appointments, medications, help in the home, paying the bills, and an endless list of instrumental assistance. This is particularly true when the geriatric person has cognitive deterioration, which may mean that the individual cannot live safely in his own home because the geriatric person forgets to turn off the stove or forgets to lock the door. The main point here is to consider the geriatric parent as a qualifying family member as equally important, and perhaps more so, than a child.

    Case Example. In one case it was helpful to simply outline the client’s contribution to her mother’s daily life needs to exemplify the devastation that the mother would endure in her daughter’s absence. The report outlined the following:

    Medical appointments: Betty escorts her mother to and from any and all medical appointments, including for her post- cancer clinic needs. She says that this amounts to very many visits per year.

    Medications: Betty reports that she monitors, purchases, and re-fills all of her mother’s medications and is able to ensure that her mother does not under or over medicate herself, which would be deadly.

    Community Needs: Betty’s mother speaks rather limited English and it is essential for Betty to act as conduit for her mother in her needs in the larger community.

    House Needs: Betty reports that she must attend to most of the basic needs in their home and although her mother tries to help the reality is that her mother is elderly and fragile and has limited ability to cook, clean, and shop for herself or the home.

    Self-Care: Betty reports that in the last two years her mother has required increasing help with dressing, toileting, and food issues.

    Finally, just as non-biological children should be included, as noted in the previous section, so too non- biological parents should be noted. This arises when an elderly aunt, for example, lives in the same residence as the client and relies on his presence for various supports, as much as any elderly parent. For this reason a family systems analysis is always required.

    Case Example . A client in removal proceedings with two young children noted that he had extended family in the area. It became apparent that the client was an orphan who relocated alone to the United States and was provided crucial support by an aunt and uncle. Although these were not his biological parents he provided them crucial emotional support visiting them in a geriatric facility every week. Though medically unwell, the uncle and aunt were cognitively intact and provided strong letters of support for the client’s good moral character, which was in question given a previous arrest.

    Childless Couples: Fertility

    If a husband and wife do not have children, the evaluator should consider why this is so and inquire about the following issues: Fertility, Pregnancies, and Pre and neo-natal problems. There are fantastic recourses for childless couples in the United States and for many such individuals relocating to a Third World country will simply prohibit the couple from ever enjoying or benefiting from such medical interventions.

    Childless Couples: Proving Dependence

    Sadly, most people understand and associate the word “family” in a conservative context and do not consider a husband and wife a single-family unit. In such cases, I inevitably examine in detail the American spouse’s psychosocial history in an effort to explain the dependence on the alien spouse, where it originates, and how it manifests. Immigration services tend to look askance at married couples without children and it is imperative to explore every possible avenue to justify the dependency between the spouses. While dependency between child and parent is assumed it is also often assumed that an adult can care for himself or herself without the need for another adult’s support, care, or love. This is deeply unfair but a truism that must be battled in extreme hardship cases.

    In many cases, one or both spouses were already married and experienced abuse or significant emotional distress in their previous relationship. I try to emphasize that the spouse therefore feels extremely bonded in their preset marriage, and grateful for this new relationship, and for a second chance in life to enjoy a legitimate sense of security, stability, safety, and happiness based on a lifelong commitment to trust and love. This can be especially helpful when they have strong positive common values based on higher education, a strong work ethic, religious adherence, personal integrity, and family cohesion above all else.

    The following questions can be helpful to flesh out the relationship between husband and wife, which becomes all the more urgent when other qualifying family members are not in the picture.

    1. How are your values similar to his? 


    2. In what ways do you identify with him? 


    3. Does he remind you of someone from your 
past? 


    4. Which role do you play in your present 
relationship? 


    5. In what ways do you trust and confide in your 
spouse? 


    6. What form of communication do you use with 
your spouse? 


    7. Imagine waking up tomorrow and your spouse 
was gone, what would your life be like? 


    8. What attracted you to your spouse? 


    9. What hopes or expectations did you have when 
you married?

    10. How will your physical, emotional, financial, and concrete needs be effected if your spouse 
is deported? 


    11. How are you dependent on your spouse? 


    Inaccessible Family Members

    What if important family members who should be included in the evaluation are not immediately accessible? In almost all cases family members gather in my office for the evaluation. When this is not possible telephonic or video interviews should be considered, but these invariably yield little valuable information. This is because the evaluation concerns personal and painful questions that are difficult to ask and even more difficult to answer by phone or computer. As such, I sometimes travel to meet family members in different parts of the United States, or even outside of the United States. It is noteworthy that from a purely financial vantage it is often less expensive for the client to pay for my travel expenses than for a family of 4 or 5 to travel to New York.

    On several occasions I have met clients outside of the United States, including Canada, the Caribbean and Europe, when it was clear that telephonic interviews would not be sufficient and the matters were serious enough that it warranted the extra cost. In such instances, I inform the client that I can undertake one evaluation in my office with family members in the United States and a second evaluation in the client’s country of origin. Clients rarely accept this because of the cost, but in challenging cases with serious fraud or a criminal issue, for example, in which a denial is likely this is a pathway that the client and lawyer should seriously consider.

    From a personal perspective, there is simply nothing that replaces a face-to-face clinical interview and every time that I have traveled outside of New York to interview clients the information gathered greatly contributed to the substantive body of the report. Obviously, this would also apply to detained clients some of whom are held far from their family.

    Case Example . A U.S. Army soldier was stationed in Germany and wished to hire me to help with a psychosocial evaluation in an extreme hardship analysis. She indicated that there were personal issues that she did not wish to discuss on the phone and she agreed that she would pay for my travel time and expenses to meet her in Germany. The evaluation revealed that this woman was repeatedly sexually abused in previous relationships and there were subtleties to her present marriage that also required careful analysis through a face-to-face interview. The quality of the report was much richer having had the opportunity to meet both the client and her spouse in person.

    Country Visits to Evaluate Country Issues

    There may be value in a personal interview with a client in his country of origin if there are specific country condition extreme hardships that the evaluator needs to see with his own eyes. Some clients truly live in terrible conditions where even basic necessities are unavailable and it could be helpful for the evaluator to reflect this from first- hand knowledge. This is similar to a social worker who undertakes a home study in which the evaluator must personally inspect the home and community environment in which the child would reside. So too, it makes sense that in some cases the social worker undertaking a forensic mitigation report in an extreme hardship analysis would need to gain empirical understanding through first-hand knowledge about the actual living conditions in which the child would have to reside if forced to leave the United States and relocate to his parent’s country of origin.

    Children’s Emotional Hardships

    Children construct their world through the emotional, physical, and instrumental supports that they perceive their primary caregivers offer them during critical stages of development. Young children are at stages when their needs are both complex and fundamental and the sudden and perhaps permanent disruption of such needs can have far reaching effects on their safe and healthy growth. The loss of the family structure or the systems in their lives could be devastating, as children who lose a parent face serious challenges in maintaining their developmental stride. Such children may feel less confident and their sense of self-worth may be compromised, as children often blame themselves for the losses they suffer.

    Children who lose a parent risk a host of serious mental health problems, including sadness, depression, anxiety, loneliness, low self-esteem, erratic behaviors, unstable moods, interpersonal issues, truancy, drugs, teenage pregnancy, and other self-injurious behaviors. Such mental health problems can cause irreparable harm to a child’s emotional and psychological well-being and also prohibit the child from participating fully in his or her school programs and non-scholastic endeavors due to poor concentration and personal distractions. These problems often tend to carry over into the child’s adolescence and even adulthood at which point repairing the deficits can be difficult if not impossible without significant interventions.

    Childhood Psychopathology

    While a child’s reactive emotional distress is to be expected in immigration cases, more serious problems must also be considered for children, including genetic abnormalities, developmental delays, learning and communication disorders, Separation Anxiety Disorder, Attention Deficit Hyperactivity Disorder, and behavior, mood, and cognitive issues.

    The large majority of children that I see are not properly evaluated or diagnosed for psychiatric problems and the forensic evaluation is often the first time the child and parent explore the child's mental health issues.

    Education & IEP’s

    An Individualized Education Plan (IEP) is mandated by the Individuals with Disabilities Education Act (IDEA), which requires public schools to develop an IEP for every student with a disability who is found to meet the federal and state requirements for special education. Key considerations in developing an IEP include assessing students in all areas related to the suspected disabilities. If the child does not have an IEP, but the parent or evaluator suspects that the child may have a learning disability an IEP can be requested from the school. For this reason, it is essential that the mitigation extreme hardship report is prepared as early as possible so that such referrals can be made with adequate time to gather supporting documentation.

    Moreover, it is generally important to include children’s academic and non-academic accomplishments and awards to illustrate the degree to which the parents view education as a top priority in their lives and appreciate the unique opportunities available to the children in the United States. While judges tend to understand responsible adults as persons who have a solid work ethic, they understand responsible children as persons devoted to academics and scholastics in their school programs.

    Children often have a privileged opportunity to improve their lives, attain their goals, and achieve their employment choices through world-class education in the United States. Such children may experience major educational losses if textbooks, resources, level of study, educational tools, and opportunities available in the parent’s country of origin are quite poor as compared to the United States. Moreover, children who are sad, anxious, or find themselves away from their familiar and safe environment often derail their educational opportunities as they cannot concentrate and become preoccupied with the losses that they and their family members have suffered.

    Education hardships erroneously focus exclusively on children, but the reality is that many adults with or without children wish to return to college and pursue professional career opportunities, which may be impossible if the case is denied. This could also have far-reaching financial implications for the family.

    Loco Parentis

    In many cases the children's parents grew up with very limited education and do not have the ability or wherewithal to properly advocate for their children's academic needs, especially if the child suffers from developmental delays or educational challenges. As such, it is quite often the case that the school and other relevant social service agencies within the community look out for the child or advocate on the child's behalf in a way that the parent is simply unable to do. This is an extremely important service for the child, and yet would almost certainly be unavailable in the parent’s country of origin.

    Language Abilities

    The children and adult’s foreign-language abilities should also be explored, including both national and ethnic languages, including abilities in reading, writing, and speech. Also, the alien may be illiterate in his own native language, which could prohibit him from securing employment if forced to return to his country of origin.

    Language serves as a major source of identification by the individual within his family and larger community. In the absence of language abilities—this includes both national languages and regional languages and dialects—the child may remain ostracized and unable to fully integrate into the community in his parent's country of origin.

    Particularity of Relationships

    It can be quite challenging to explain the particularity of relationships between people and between individuals and institutions. The meaning and value of some interpersonal relationships are obvious while others are subtle. For example, in many cases children view their grandparents as surrogate caregivers because their father or mother may work two jobs to support the family. In such cases the child may be more attached to the grandparent and separation from that individual may result in even greater trauma than separation from the parent.

    Individuals can also establish significant relationships with institutions. For example, I have seen many cases where children gather substantial strength from a neighborhood church where they pray, study Bible, socialize with peers, gain guidance from clergyman, and generally use the church as a community resource. Such relationships must be emphasized and fully delineated.

    Case Example . A woman committed suicide leaving behind her alien husband and two children who were United States citizens. The children were in therapy to explore with the therapist their mother’s suicide. The father faced deportation. The Immigration Judge asked that a psychosocial evaluation determine whether or not it would be a hardship for the children to relocate to Brazil. The mitigation report concluded that for the children the real therapy was continuing to live their lives in their home community environment and relocation would be anti- therapeutic in and of itself. In other words, the real therapy was not seeing a trusted therapist each week to discuss the suicide of their mother, but pursuing a normal life in the context of their familiar friends, school, and surroundings, which throughout their lives brought them comfort and solace.

    Inevitable Family Separation & DACA

    In families where parents and young children live in the same household without extended family members the parent’s deportation would necessarily mean that the children must also leave the United States because the children have no other caregivers. However, it is increasingly the case that I see family situations where deportation of parents would lead to the inevitable and perhaps permanent separation of family members. This is particularly true now with DACA (deferred action for childhood arrivals) because such “children” may be older teenagers or young adults, and if the parent(s) is deported the child may choose to remain in the United States and live as an emancipated minor or perhaps with extended family members.

    Moreover, in many of these cases the older child serves as a surrogate caretaker for younger siblings, especially if the older child has superior language and educational skills as compared to the children's parents who grew up outside of the United States. As such, the separation of siblings can be quite traumatic for the younger child and could mean the loss of a quasi-parental caretaker. Overall, the inevitable and perhaps permanent separation of family members is a matter that this evaluator did not consider in earlier years, yet it is now a central point of concern for every extreme hardship evaluation.

    Quality of Parental Care

    In general, the hardship to the respondent has little relevance to the case unless it causes hardship by extension to the qualifying family member(s). This issue could be extremely important and must be evaluated from the perspective of the respondent. An apt example concerns a respondent who fears deportation to a country where he previously suffered abuses or persecution. Returning may trigger deep- seated fears, anxiety, and clinical depression, which may in turn prohibit the respondent from providing proper parental care to his dependent children.

    Women’s Status

    It is often the case that the general status and safety of the female qualifying family members will be quite poor if forced to relocate to the alien’s country of origin where the female relatives will most likely be unable to enjoy the same legal, social, educational, and job opportunities.

    It is also often the case that in such patriarchal societies sexual assaults are not uncommon, though few women report sexual assaults for fear that their families will shun them or that arranged marriages would be impossible. Moreover, married women in abusive relationships find that there are few if any social services or shelters in such environments. Overall, the female relative’s life choices may be severely impaired by relocation away from the United States.

    I often ask an older female relative, usually a mother, what her peers in her country of origin are now doing. It can be quite telling when the answer is “my female friends were married through arranged engagements in their teens or early 20s, work at home, and few completed college or enjoy professional careers, but my daughter can become a doctor or even the President in the United States.”

    Natural Disasters & Weather

    Natural disasters, weather changes, and climate conditions can have a major impact on quality-of-life issues in an extreme hardship analysis. For example, most of my Mexican clients are from Puebla State where an active volcano has threatened widespread problems. One client explained that residents were evacuated due to the risk of spewing ash and when his extended family in Mexico returned to their homes it was discovered that they were robbed. Another important example concerns clients from Southeast Asia. For example, widespread damage has resulted in Pakistan because of monsoons and Bangladesh has endured years of rising water levels and floods. This is particularly important in Southeast Asia where the large majority of families gain their livelihoods in the agricultural sphere and there is a high concentration of the population near the waters.

    Community Life

    The family may be well integrated into their community in the United States and enjoy social activities together. Children often have made many friends in school including some whom they have transitioned with from grade to grade and serve as a built in social structure. Family members access the community in many ways, which may reflect their interests in sports, academics, friends, religion, charity, and other areas. The family members may fear the loss of teachers, friends, and familiar environment and the transition to another society in which there is an absence of the supports and opportunities they now have. In many cases, the American children have never even visited their parent’s country of origin. Most if not all of the systems that the children and family access and require are in their home community environment and these systems support them in almost every facet of their lives.

    A familiar community provides family members with a predictable structure and environment in which to feel confidant and safe. A community that also provides for the children’s and family’s needs (including education and socialization systems) in a healthy and safe manner should be nurtured and developed. On the other hand, relocation to a new city or country is among the most difficult obstacles for families and children, as they must contend with a totally new physical, social, and cultural environment. This transition often causes sadness, loneliness, detachment, anxiety, and a host of other mental health issues for the children and adult members of the family. Overall, children require a structured, stable, and predictable environment and community in which to grow and feel safe and secure.

    Financial/Employment

    It is often the case that one parent, usually the father, serves as the primary financial support for family members and his dependents rely on him for all of their basic necessities, including food and housing. (Children rarely work given their young ages). If the client is forced to return to his country of origin he may not be able to support himself let alone send funds back for the children. This is because the wages are quite low, the relative value of the currency is poor, and the client may have little education or specific (marketable) skills to help him find work. Age discrimination in the country of origin may be another problem. If the father is deported or must be removed, the children and spouse may become reliant on state finances for their housing, food, and all other necessities, which may in turn destroy the children’s educational and social tracks. Additionally, employment opportunities, economic stability, cost-of-living, and the possible financial destitution of qualifying family members who remain in the United States should also be included.

    In contrast, if the family as a whole relocates to the alien’s country of origin the family would not have the same financial freedoms that they enjoy in the United States, particularly when immediate family in the alien’s country of origin suffer from lack of employment, financial opportunities, and there may be economic devastation. Often the alien provides monetary support for his family back home. Moreover, women and even men with university degrees and professional training may be unable to find work due to the high rate of unemployment and serious economic problems. Finally, high rates of unemployment may mean that even after relocating as a unit back to the client’s country of origin one or both parents may have to leave the children to find work in whatever part of the country has jobs.

    Ostracized / Stigmatized

    For some families, the most important factor prohibiting them from returning to their country of origin is that the children, and even adults, would be socially ostracized and would not have access to education, employment, or healthcare benefits. Many Chinese clients, for example, fear that while they would be heavily fined and possibly imprisoned for leaving China without permission, the children would be punished by virtue of not being registered and therefore not eligible for any of the general benefits that other Chinese citizens should receive.

    Psychiatric Issues: What if None Exist

    Most clients in immigration cases go about their lives in a normal manner and do not suffer from serious mental health problems. In contrast, many of the criminal clients referred for mitigation do suffer serious mental health issues. Nonetheless, there are several factors to consider so that the greater range of mental health issues can be adequately reflected in the mitigation immigration report.

    First, many clients suffer from Adjustment Disorders due to fears, anxiety, sadness, loneliness, and uncertainty related to the immigration case.

    Second, many children will experience clinical depression and anxiety, but hide their symptoms either because they do not wish to burden others or because this is a new experience for them and they do not have the words to adequately describe their feelings.

    Third, many of our clients have experienced trauma in their country of origin and this could be a significant consideration, particularly if the client and/or his family must return to that same region.

    Fourth, many clients are in denial about the seriousness of the immigration case and multiple visits may help to uncover nuanced mental health issues.

    Fifth, domestic violence is a widespread problem and women who have experienced previous marriages may well have suffered trauma in this context.

    Sixth, many clients have shadow syndromes or subclinical mental health issues, which should also be considered. Some of these can remain quite stable and held in check for years, but anxiety associated with the immigration case will invariably exacerbate such problems and brings these mental health issues to the surface, sometimes for the first time.

    Expert Testimony & Stipulations

    Should the mitigation expert appear in person or is telephonic testimony sufficient? Should the mitigation report be stipulated to?

    Affidavits: Voice for the Voiceless

    Mitigation reports are professionally prepared from an objective stance, yet it can be quite helpful to complement the report with personal statements from family members that provide a subjective viewpoint directly from the heart. I recommend that clients prepare these statements on their own, as personal statements prepared with lawyers or paralegals tend to be too concrete and without the anguish and pain that make personal statements persuasive and effective. The fact that many of our clients have poor English language skills should not be a deterrent for the client to put his best foot forward in this endeavor. Moreover, oftentimes clients will contribute personal statements with material that they did not present during the evaluation and this helps to further flesh-out the extreme hardship criteria.

    While the client’s personal statement can focus on extreme hardships pertaining to the country conditions, children who have lived their whole lives in the United States may be more adept at writing about how the extreme hardship cases are not simply about close attachment to family members, but close attachment to their home community environment.

    Face for the Faceless

    I highly recommend that family pictures are added to the report or petition so that the adjudicator can actually see the client and his family preferably in a celebratory setting.

    Residential Issues

    Residential issues can be quite important, especially if the client is providing monetary support for monthly mortgage bank payments or monthly rent, which provides shelter to his family members, without which the family home may go into foreclosure. There may also be non-qualifying family members who live in the residence, such as aunts and uncles, and they too may be included in the case if they serve as an important part of the support system for the qualifying family members.

    Safety/Health

    The risk of violence or kidnapping as a United States citizen, social and political strife, human rights violations, violence against women, minority prejudice, religious persecution, political intolerance, and many other forms of safety risk must be included in the mitigation case with specific examples from the client’s history. In the broadest sense, this would also include medical and healthcare deficiencies in the client’s country of origin, especially access to care, quality of care, and preferably with specific examples.

    A No Hardship Finding

    Although unusual, a psychosocial evaluation may demonstrate the absence of extreme hardships for qualifying family members. The evaluator has the duty to inform the lawyer who referred the case and he must also explain to the family or individual the reason the evaluator cannot support an extreme hardship report.

    Case Example. A lawyer referred a case in which his client was being held in immigration detention in Texas while the client’s wife and son resided in Buffalo. After several phone conversations I flew to Buffalo to interview the wife for a psychosocial evaluation to investigate the extreme hardship issues. The client’s wife was quite articulate on the phone and highly educated with a professional career. However, upon meeting she seemed quite hesitant to participate in the evaluation, she was generally defensive and even oppositional, and she neglected to provide documentation and information that I requested regarding her child’s healthcare needs, educational problems, and related issues. After about 10 minutes I began to suspect that there were serious marital problems and as the interview progressed I suspected that this woman was the victim of spousal abuse given her various answers, history, and behavioral and emotional presentation. I was quite forthright with the client’s wife and asked if she indeed had been a victim of spousal abuse, and she immediately broke down into uncontrollable tears. Over the next half hour it became apparent that her husband was previously physically, psychologically, and verbally abusive to her and that she was only proceeding with the extreme hardship evaluation at the insistence of her husband's controlling family. At that point, I informed the woman that I could not present a report that supported her claim of extreme hardship because, as she herself stated, the quality of her life had increased due to her husband's absence from their home. This evaluator also informed the lawyer who referred the case and he was grateful to gain a broader understanding about the family issues.

    AVOIDING DENIALS

    There appear to be several central arguments connected to denials from the Administrative Appeals Office (AAO) and elsewhere that require review.

    Multiple Meetings

    There is a concern that expert conclusions are based on a single meeting rather than multiple interview sessions. This can be cured through repeat visits, even though in reality a single meeting may be sufficient to adequately attend to the case.

    Careful Documentation

    There is a concern that medical and physical issues are not adequately documented with regular physician follow-up. All clients should be encouraged to follow up with specialty physicians, and other healthcare clinicians, and have documentation to reflect the quality of care, as noted in an above section.

    Functioning

    There is a concern that some mental health diagnoses are not serious enough to warrant an extreme hardship analysis. This can be addressed by explaining how the individual’s functioning and quality of life has been affected, including major life risks such as suicidality.

    Marital Relationship

    There is a general complaint in denials that the American citizen married the alien knowing full well that the alien had no immigration status in the United States. This should be countered with a detailed explanation about the quality of the relationship and the intimacy between the couple, as a means to support the crucial dependence that the alien provides for the American spouse.

    Mitigate Illegal Behavior

    There is a concern in denials that the illegal issue that led to the need for a waiver, such as identity misrepresentation through false documentation, is not adequately addressed. It can be quite helpful in these instances to mitigate this misrepresentation, as one would in a criminal case. Often the alien is fleeing a situation of extreme hardship or personal danger and, as noted above, this too must be mitigated.

    Two Hardships

    The petition must address two extreme hardship categories. (1) The extreme hardships that the qualifying family member(s) suffer due to present or future separation from the alien and (2) the extreme hardships that the qualifying family member(s) will suffer if one or more of them choose to relocate to the alien’s country of origin. If both extreme hardship analyses are not addressed a denial may be forthcoming.

    ABSENCE OF MENTAL HEALTH CARE

    A common problem is that the client who suffers from depression or anxiety has not sought mental health counseling or assistance at an earlier date—if at all. The answer is that mental health counseling and assistance is a particularly Western idea and the large majority of clients grew up in cultures and countries in which psychotherapy simply did not exist and psychopharmacology was generally unavailable. Moreover, the idea that an individual would openly speak about painful personal issues to a stranger is often anathema to the cultural values of such clients and a shocking notion. Also, many immigrants have internal community resources for “healthcare” that are far different from Western-style medicine. For example, many of clients prefer to gain counseling from their pastors in church. While this spiritual support is not documented it may yet be quite therapeutic, and free.

    It also seems cruel to force a person to attend psychotherapy when it is not their wish. This is especially true in spousal abuse cases in which the person may require months or even years before they feel ready to enter therapy to discuss their victimization. Additionally, for many individuals discussing traumatic memories and experiences may be unhelpful or even harmful, especially if the person has adequately “moved on” through internal resources or other measures of self-protection.

    A similar issue occurs when depressed clients who require medication do not visit with a psychiatrist. Yet, the reality is that the large majority of prescriptions for depression and anxiety in the United States is not prescribed by psychiatrists, but by other physicians, including gynecologists, internists, geriatricians, and primary and family physicians. Such clients do not feel that they are deprived of therapeutic value from seeing non- psychiatrists and in fact many have stated that seeing a family physician who is much more familiar with their holistic medical and psychiatric issues is preferable to visiting a therapist or a psychiatrist, especially since they do not have to repeat painful material in two separate offices to two separate people.

    Therapist vs. Forensic Expert & Professional Bias

    Many denials view the perspective of a treating therapist with a presumption of integrity while the forensic evaluator’s report is viewed with self-serving skepticism. It must be understood that the forensic evaluator has special expertise and is aware of the legal standard and specific issues that require review during the evaluation. In contrast, the therapist may concentrate on first developing a therapeutic alliance and later bringing up painful material, which may require months or even years. The material relevant to the legal case may never come to fruition and therefore relying solely on a therapist’s notes and input could put the client at risk. Moreover, the notes collected from a psychotherapist over a period of several months or years often yield rather erratic patterns of behavior and unstable moods, which a judge, prosecutor, or immigration officer may find unpersuasive and even confusing.

    Over the years I have seen clients who obtained either notes or an evaluation from their therapist and in many cases the content was inadequate and perhaps even harmful to the client’s immigration petition. I do not suggest that the therapist is uncaring or unprofessional, but rather the therapist may not appreciate the gravity of the situation or the true risk to the family members involved. Additionally, in many cases I have been told that psychiatrists and therapists are reluctant to write lengthy detailed reports because they are not paid for it, and therefore present a halfhearted effort. Many clinicians also fear professional and personal liability.

    For several years I worked as a medical social worker in Harlem, New York on a floor predominantly occupied by geriatrics. After completing the social work assessment by the bedside of the medical patient I was encouraged to undertake what was commonly called “the five-minute psychotherapy session.” What I learned was that one need not visit a therapist’s office for psychotherapeutic gain. Likewise, clients who I see who have suffered long-term mental health problems, often as a result of trauma due to persecution and/or abuses, confess that while they appreciate the opportunity to work on their immigration case they state that the time spent was quite therapeutic and many clients return to my office for follow-up meetings, which focus primarily on the content of the forensic report but the client also uses the time for personal therapeutic gain. As such, the distinction between the forensic evaluation and the therapist is somewhat artificial and there is significant overlap.

    Finally, the idea that any one professional is totally unbiased is naïve and inaccurate. Prosecutors, defense lawyers, judges, immigration officers, therapists, and mitigation and forensic experts all harbor biases and prejudices whether or not they are aware of this. The best approach is to acknowledge and identify these biases and prejudices and work in a professional manner to overcome them. For example, in every hardship case that I am referred I have a pre-existing bias that children should remain with both parents in a safe and healthy environment and this almost always means that the children should remain with their parents in their home in the United States. This does not mean that every case will end up this way and several times a year I will see a family in which I believe separation is better than union. This most often occurs because a husband and/or father presents with dangerous or threatening behaviors. In such cases, I explain that I am unable to proceed in the matter because I do not believe that extreme hardships would necessarily result if the family members were separated.

    Purpose & Credentials

    Denials can occur when the context of the meeting with the client is omitted. Thus, the purpose of the evaluation should be outlined at the start of the report with the evaluator’s credentials and the nature, context, and frequency of the contact with the client.

    Inconsistencies

    The content of the report should avoid internal inconsistencies. If they are present an explanation should be included.

    Unavailable Family Members / Documents

    Clients are informed two things on the phone at intake: who should come to the evaluation and what materials should be brought. For a variety of reasons, in many cases clients do not comply with one or both of these requests and this could serve to detract from the substance and quality of the case, and may also later lead to a denial. This is especially true if the reviewer notes that certain family members were not interviewed directly for the case and/or if pertinent documents were not directly reviewed as part of the case.

    Child Testimony

    Hardship cases in Immigration Court permits the respondent and other witnesses to testify. In difficult cases where a denial is a real possibility the testimony of children should be considered assuming the child has the appropriate maturity level.

    Cumulative Factors

    A cumulative analysis is important, which is done by interweaving issues that include, but are not limited to physical, emotional, financial, and instrumental extreme hardships. It is usually the case that dependence, for example, does not lie in one area alone and showing how these different areas are interconnected and how people are interdependent may raise the case to a higher level. Denials often cite the weakness of issues in isolation and interweaving could help avoid a denial.

    Conclusion

    This paper presented the central criteria and areas of concern in extreme hardship cases.

    Dr. Mark S. Silver
    MA, MSW, LCSW, PsyD, JD
    Personal Injury, Criminal Mitigation, & Immigration
    Forensic Psychiatric Social Worker
    Website: CriminalMitigation.com
    Website: Personal-Injury-Harm.com
    Email: MarkSilver1@cs.com
    225 Broadway, Suite 715
    New York, NY 10007
    (t) 917)%20608-1346" target="_blank" value="+19176081346"> 917-608-1346
    (f) 646)%20349-2561" target="_blank" value="+16463492561"> 646-349-2561


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    About The Author

    Mark Silver is a New York Licensed Clinical Social Worker who has 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. He also has completedd 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, he holds a Juris Doctor fromt he City University of New York, Queens College and is admitted to practice law in New York. For the past decade, Mark has worked as a consultant for law firms throughout the United States, conducting psychosocial evaluations and writing formal reports in forensic and mitigation immigration and criminal cases.


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

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