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  • Article: Competency Evaluations In Immigration Proceedings: Matter Of M-a-m Cases By Mark Silver

    Competency Evaluations In Immigration Proceedings: Matter Of M-a-m Cases

    by


    Introduction
    Background
    Competency evaluations in immigration proceedings is similar to competency evaluations in criminal cases, however, a specific case – Matter of M-A-M – serves as the guiding principle for the mental health evaluator with immigration clients. This chapter will consider (1) criteria in the Matter of M-A-M case, (2) special challenges in the competency evaluations in immigration proceedings, (3) major psychiatric issues that require scrutiny, and (4) malingering and factitious disorder as alternate diagnostic considerations.
    Case Example
    In an effort to integrate theory and practice, a case example is presented at the outset. Factual mental health issues from this case are interwoven at various points in this chapter. The case concerns a 32-year-old man - John - who relocated from Jamaican as a young adult. He has a long history of psychiatric illness, which is well-documented during his incarceration. At the time of the evaluation, the client had been incarcerated for about eight years and he was interviewed in an ICE detention center in Batavia, New York. Prior to the evaluation, this evaluator obtained a parallel history from the client’s mother and stepfather, which proved extremely helpful. The client was cooperative throughout the evaluation, however he was floridly psychotic and could provide little meaningful information regarding his personal history, mental health issues, and he could not adequately assist this evaluator with regard to his own case.
    Matter of M-A-M Criteria
    3 Prong Test
    Matter of M-A-M 25 I&N December 474 (BIA 2011) provides a three-pronged test for the competency analysis in immigration proceedings.
    First, does the respondent have a rational and factual understanding of the nature (process) and object (aim) of the proceedings. This prong is quite complex because it requires that the respondent possess an understanding about immigration proceedings, which may be difficult to fully understand even by individuals familiar with the law. As a forensic evaluator, I am often shocked by clients who do not have an understanding about asylum proceedings, deportation cases, 601-waivers, and much else. Asylum clients rarely have a full understanding about the criteria, deportation clients refer to their cases as a “ten-year case” without understanding that they must prove the very high bar of exceptional and extremely unusual hardships, and many of my South American clients refer to the 601-A waiver petition as “perdon” so that the client believes that only a simple pardon is needed. As such, even clients with a high school education and without mental health issues by and large do not have a clear understanding about immigration proceedings, goals, process, or what actually needs to be proven. As such, it would seem that an individual with serious and chronic mental health issues could not understand the reason or manner of the goal, purpose, and aim of immigration proceedings, especially when such clients also invariably did not complete their educations and find it quite difficult to properly advocate for themselves and/or negotiate their community in a meaningful manner.
    Second, can the respondent consult (that is, assist) with the attorney or representative. “Consult” is a broad term and can mean many things, however it generally suggests that the client has the capacity to provide meaningful feedback and input about his case based on an understanding about the factual issues and process, as noted in the first criteria. Again, many of the clients I evaluate can provide little or no “consult” to the attorney and/or evaluator, but rather such information and assistance must be carefully elicited from the client by the attorney and/or evaluator given the client’s rather limited understanding about the process. For individuals who have serious and chronic mental health issues consultation will be all the more challenging and perhaps even impossible.
    Third, would there be a reasonable opportunity for the respondent to examine (adverse) evidence, present favorable evidence, and cross examine government witnesses. Again, this is a high standard because the capacity to examine evidence and cross-examine witnesses is something that even experienced attorneys struggle with on a regular basis. The individual who has suffered with psychiatric illness may not have the cognitive capacity and/or psychological wherewithal to undertake such tasks.

    Need for Safeguards
    Even if a respondent has been pronounced mentally competent, procedural safeguards may be necessary to ensure a fair hearing in immigration court if, for example, a respondent has a significant history of mental illness, is experiencing an acute aggravation of mental illness, or if the respondent’s mental health condition has changed significantly since competency was determined.
    Potential Indicators of Serious Mental Illness
    Potential indicators of serious mental disorders, which may give rise to competency issues, include:
    - difficulty communicating thoughts completely or coherently,
    - odd or inappropriate behaviors or perseveration,
    - oppositional defiance,
    - erratic moods,
    - overly simplistic or concrete thinking,
    - words or actions that do not make sense or suggest that the person is experiencing hallucinations or an altered version of reality,
    - memory impairment,
    - poor ability to process information,
    - disorientation,
    - an altered level of consciousness or wakefulness,
    - high level of distraction, inattention, or confusion
    It is essential to note that an individual may suffer from an acute psychiatric episode and yet there is little or no outward indicator. Additionally, an individual may suffer from a serious on-going psychiatric issue and yet the individual may be experiencing a period of remission during which no outward sign or symptom of the mental health disorder is evident.
    Core Questions
    There is a core set of questions that will help any attorney and/or evaluator determine if the client has the capacity and/or understanding and/ or willingness to participate in immigration proceedings under the Matter of M-A-M criteria. The questions include:
    Can you tell me your name?
    Where are we?
    What is the date?
    Do you know who am I?
    What is your understanding of why we are here?
    Are you willing to help me with your case?
    Do you know who is opposing you in this case?
    Why is this person opposing you?
    What is the immigration judge’s role?
    What could happen to you if you do not win your case?
    How will you care for yourself if you must leave the United States?
    Why are you in detention?
    Do you want to stay in the United States?
    Do you want me to help you do that?
    How can I help you?
    Can I help you in the courtroom?
    Are you able to help me explain your case?
    Can you help me prepare evidence in your case?
    Can you help me consider adverse or negative evidence against you?
    What is most interesting about these questions is that the client’s inability to understand and/or answer even just one of these may well mean that the client cannot prepare for and/or participate in an immigration procedure under the Matter of M-A-M criteria.
    Summary
    Matter of M-A-M criteria suggest that a client must indeed possess considerable focus, wherewithal, and the ability to assist counsel in a fundamental way with the added ability to understand and participate in the process in a practical manner, including the ability to evaluate adverse evidence.
    Evaluation Challenges
    Diagnosed with a Psychiatric Disorder and Competent
    It is crucial to understand that the respondent may have the ability to consent to representation and to assist in his defense in a sophisticated manner, even with a serious psychiatric diagnosis. Mental impairments do not necessarily preclude meaningful participation in proceedings. This is similar to persons with medical issues who can function quite well in many aspects of life. It is important not be condescending or presumptuous about the ability or limitations of persons with mental health issues who may indeed have the capacity to advocate on their own behalf or to function in a normal manner.
    Not Psychotic, Yet Not Competent
    An individual may not be psychotic, and yet the individual may still not be competent under the Matter of M-A-M criteria. For example, an individual may suffer from serious cognitive impairment due to vascular dementia or Alzheimer’s disease, and yet that individual may not be psychotic. (Psychosis is generally defined as being out of touch with reality predominately due to hallucinations and/or delusions). Another example concerns trauma. Many clients immigrated to the United States from Third World countries where they have endured poverty, violence, and other extreme hardships, which may result in clinical trauma, and which may even preclude the individual from living a normal life in a safe and healthy manner. Yet another example concerns an individual with an intellectual disability. Such individuals are not psychotic yet they may function at the level of a young child without the capacity to undertake important decisions or negotiate personal needs in their community.
    Functioning Over Diagnosis
    It is also crucial to separate functioning from diagnosis. That is, a less “serious” mental illness could still be quite debilitating depending on how it affects a particular person. For example, illnesses exist at different levels of intensity and seriousness. Just as a mass on the body can be benign or malignant, mental health issues also exist in a wide variety of shapes and sizes. As such, it is important to understand not only the seriousness of the psychiatric disorder, but also how serious it is to that particular person given that person’s coping mechanisms, history, and resilience. Moreover, it can be helpful to conceptualize mental health in terms of patterns and because of this it is important to consider how the client functions on a day-to-day basis and also over many years. Has the person lived a content and safe life or has the mental illness prohibited the person from living a meaningful, safe, and healthy life?
    Bewildered Clients
    Some clients are simply bewildered by the process itself. I have seen this as a forensic expert with clients in different contexts with three underlying reasons. First, the applicable statute and or case law may be overly complicated and difficult to discern – even for an experienced attorney. I have often found this with white-collar defendants who have benefited from an excellent education, and yet they find themselves in criminal proceedings because they have not understood the applicability of regulatory statutes in their everyday duties. For such clients, frustration and anger almost inevitably ensues. One can therefore imagine how a client with serious and/or chronic psychiatric issues would find statute and case law pertaining to his immigration case overly complicated, or perhaps even impossible to contend with.
    Second, the client may view his behavior as normative. That is, the client may not view his conduct as aberrant (or perhaps even illegal) given the cultural norms of his society. I have had many clients who simply cannot understand how overstaying a visa could undermine their ability to adjust their status after marring an American spouse when so many others in the community have acted in a similar manner and are now lawful permanent residents.
    Third, I often see clients who become overwhelmed because the facts themselves are overly complex. I have also seen prosecutors miss out on nuances and this is, of course, the major reason that so many clients require legal advocacy. That is, the attorney is required not just to present legal options based on the law, but also to explain and to contextualize the fact pattern for that particular client into a coherent narrative.
    Parallel History
    It is crucial to obtain a parallel history from close family members and/or friends before the interview with the client. This is because the client may not have the capacity to properly participate in the evaluation, and it is also helpful for the evaluator to be aware of the client’s past mental health concerns. It can also be quite helpful to review previous mental health documentation although this may not be possible. In general, past is prologue, which means that the individual’s mental health history can provide a strong window into the present functioning and/or challenges that the client may encounter. In the present case, the client’s mother and stepfather provided crucial background information providing this evaluator with various questions and concerns, which made the evaluation with the client all the more meaningful.
    Course of Illness
    It is important for the evaluator not only to document a specific mental health problem, but also to explain to some extent the stages and onset of the illness, and the ups and downs the client has experienced over the years. It can be very difficult to predict the course of a mental health problem, especially as one individual may suffer a major depressive episode for just a few weeks while another individual may suffer a major depressive episode for several years even with similar symptoms. Additionally, individuals may find that their mental health issues are exacerbated by major (or even seemingly normal) life stressors. Some mental health issues, such as schizophrenia, generally worsen over time, while other issues, such as generalized anxiety disorder, tend to remain rather constant over time. Some mental health problems are noted early in life, such as learning disabilities, and others begin rather late in life, such as cognitive disorders, and yet others have the onset in early adulthood, such as schizophrenia.
    People have good days and bad days, and persons with serious mental health issues encounter this all the more so. This can be problematic if the evaluator has traveled far to visit a client only to find that the client is uncooperative, such that a second or even a third visit is required, which may also significantly add to the cost. In the present case, John could contribute little meaningful information during the evaluation. However, this evaluator did not return to the jail and did not charge the family for another day of work because a parallel history provided by family members prior to the visit informed the evaluator that John’s presentation during the visit reflected his general psychiatric functioning.
    It should also be recognized that clients may withhold or fabricate information due to shame and a deep desire to appear healthy to others. As such, the client may deny symptoms and even a history of mental illness even when it is well-documented. Such individuals often do not trust authority figures, or perhaps even their own judgment.
    Particularity of Illness and Symptoms
    It is crucial to explain how particular symptoms and/or a particular illness affects the client, rather than in just a general sense. For example, two people present with insomnia, the first is a factory worker and the second is a writer. The first person is employed at a factory with strict attendance rules so that missing work due to insomnia may mean termination. The second person is a writer who welcomes the insomnia because his best hours of writing occur throughout the night when it is quiet, such that the insomnia is a welcome support in his writing career, rather than a hindrance.
    Subclinical Issues
    Some clients will present with subclinical issues. That is, the client’s symptoms in aggregate do not warrant a particular diagnosis, nonetheless the client subjectively presents with a particular problem, which may indeed be quite serious. For example, there are nine criteria in the diagnosis of Major Depressive Disorder. The client may present with four of the symptoms even though five are required to meet the criteria of the diagnosis. This is an example of a subclinical issue, or sometimes referred to as a shadow syndrome. Nonetheless, to that particular person the four symptoms may cause subjective debilitating psychological distress.
    Drug Use
    Drug use – both licit and illicit – can cause a wide range of psychiatric symptoms and substance abuse is itself a psychiatric disorder. It is important to consider both the client’s history of drug use and also the degree to which the drug use informs the client’s overall mental health presentation. The client who has been detained for several weeks may have sufficiently eliminated the drugs from his body permitting a clearer determination of the psychiatric issues. Additionally, a significant minority of psychiatric clients have a dual diagnosis sometimes called MICA (mentally ill and chemically addicted) and the challenge then is to present the client not as a manipulative self-destructive user, but rather as an individual who truly suffers from psychiatric symptoms and who requires mental health care. In the case example, John clearly has a history of polysubstance abuse, however because he has been incarcerated for several years the evaluator could state with certainty that John’s presentation reflects psychiatric symptoms and diagnoses separate and apart from the influence of drugs.
    Comorbid Disorders
    The majority of individuals with mental health issues have more than one psychiatric disorder or diagnosis. If this is the case, each should be explained separately. Just as someone can have multiple medical issues, such as hypertension and hyperlipidemia, so too an individual can have concomitant psychiatric diagnoses. In the case example, John presents with not only a psychotic disorder, but also learning disabilities. The presentation of both disorders provides a more complete understanding of his psychiatric issues and his developmental limitations and deficits.
    Differential Diagnosis
    It can sometimes be difficult if not impossible to determine if an individual in fact has a specific disorder versus another disorder. If this is the case, all possible diagnoses should be included for a complete evaluation.
    Failure to Seek Mental Health Assistance
    Many clients will either ignore or neglect to follow up on much needed psychiatric care. Because of this the adjudicator may be skeptical as to whether the mental presentation is valid. It should be noted that many immigration clients assert that psychiatric care is anathema to their cultural background and that mental health diagnoses are stigmatized in their culture. Yet, other clients gain the necessary support from family members and/or from local clergy or their church. The client may also be a young adult experiencing the first onset of major psychiatric symptoms so that he has not yet had the opportunity to seek psychiatric care and he may not have an understanding about his particular issues. Such clients tend to have poor insight and/or judgment regarding mental health issues in general. Still others harbor a deep sense of shame or simply do not have healthcare insurance or the financial means to pay for psychiatric healthcare, which can be quite costly. Moreover, it is not unusual for clients who come from authoritarian countries to fear authority figures, such that they distance themselves from healthcare resources.
    Bias Prejudice Against Mental Illness
    A central concern pertains to the prejudice against those with mental health issues. Mental health issues are rarely properly understood by the general population and biases, fears, hostility, and anger may feed into the stigma of mental illness. Moreover, there may be an assumption that the client is lying or feigning symptoms as a means to avoid immigration proceedings altogether.
    Clients Who Most Benefit
    As noted elsewhere in this book, mitigation helps to humanize the client through a sympathetic narrative to induce empathy for the reader, document the client’s life history, illustrate the client’s community, educational, and employment ties. For such clients, professional expression can replace self-expression. As such, the forensic evaluator produces not just a mental health report, but an opportunity for the client to have his life issues explained by a mental health expert just as he would want his legal issues explained by legal counsel. Attorneys who are unsure if the client suffers from mental health issue should err on the side of caution and recommended an evaluation for the client. If the client declines a mental health evaluation the attorney may consider informing the Immigration Judge of the refusal. In general, clients with poor language, communication, social, self-care, adaptive, or executive skills are all potential candidates for mental health evaluations.
    Issues Explored
    There is a general belief that psychiatrists, social workers, and psychologists undertake mental health evaluations in different ways. This is generally untrue. Clinical evaluators are required to utilize a biopsychosocial model focusing systemically on a wide range of issues, which are noted here for the edification of the reader.
    Family-Systems Analysis Violence
    Trauma, War Medical Health
    Childhood Development Volunteer Community & Charity Role Models
    Social Skills & Peer Rejection Arrests & Criminal History Communication
    Sexual Development Racism & Prejudice
    Languages - spoken/written Abuses
    Hobbies & Interests Roles
    Community Ties, Friends Legal Issues
    Education & Employment Religious Devotion
    Finances & Poverty Support
    Military Service Cultural Issues &
    Self-care (ADL’s)
    Mental (DSM) & Drug & Alcohol History
    Clearly, certain aspects of the biopsychosocial evaluation will be more important for certain clients, while others remain somewhat secondary. For example, the evaluator who is interviewing a veteran returning from a tour of duty will focus heavily on the individual’s reason for joining the Armed Forces, his experiences in combat, and whether the individual suffered physical and/or psychological trauma. In this case, John spoke at length about his years of homelessness and how it instilled him a deep sense of fear and uncertainty. Because of his inability to function John has remained essentially without a stable home in his adulthood, which has caused him constant insecurity, but also a deep sense of shame. As such, the interview with John focused mostly on his ability to negotiate his environment with regard to employment, housing, and other essential needs.
    Summary
    This section has presented a wide range of challenges and special considerations required in mental health evaluations in the context of Matter of M-A-M competency evaluations.
    Mental Health Issues
    Background
    This section will explore major psychiatric illnesses. In the United States, psychiatric diagnoses are outlined in the Diagnostic and Statistical Manual (DSM) Fifth Edition. While psychotic disorders can certainly preclude the client’s ability to participate in immigration proceedings, there are other serious psychiatric issues, such as Personality Disorders, which can also substantially limit a person’s ability to interact in a normal manner with others and in his community.
    Schizophrenia
    Schizophrenia is a psychotic disorder, which means that the individual is out of touch with reality. Symptoms are comprised of positive, negative, and cognitive symptoms. These symptoms can come and go with varying levels of intensity and without predictability. Positive symptoms are comprised of hallucinations, delusions, and thought disorders.
    Hallucinations occur when a person has a false sense of sight, hearing, smell, taste, or touch sensation, which is often unique to that individual. “Hearing voices" is the most common type of hallucination. The person may hear voices talking to him in either a benign or hostile manner often with negative overtones, at other times the voice may command the person to do something, including violent acts to himself or others. People with schizophrenia may hear voices for many years before family and friends notice there is a problem.
    Other types of hallucinations include seeing people or objects that are not real, smelling odors that no one else detects such as ammonia, and feeling things like invisible insects touching the body when no one and nothing is near.
    Delusions are false beliefs that are not part of the person's culture and remain constant over time. The person believes the delusion even after learning that the beliefs are not true or reasonable. People with schizophrenia can have delusions that seem bizarre, such as believing that neighbors can control their behavior with magnetic waves or that people on television are direct special messages to them, or that radio stations are broadcasting their thoughts aloud to others. Sometimes they believe they are someone else, such as a famous historical figure. Paranoid delusions are the belief that others are trying to harm you, such as by cheating, harassing, poisoning, spying, or plotting against you or the people you care about. These beliefs are called “delusions of persecution.”
    Thought disorders are unusual or dysfunctional ways of thinking. This may include disorganized thinking, which occurs when a person has trouble organizing his or her thoughts or connecting them logically. The person may talk in a garbled way that is hard to understand. Thought blocking occurs when a person stops speaking abruptly in the middle of a thought. When asked why he stopped talking, the person may say that it felt as if the thought had been taken out of his head. A neologism is a thought disorder where the person invents meaningless words.
    Movement disorders may appear as agitated body movements. A person with a movement disorder may repeat certain motions over and over. In the other extreme, a person may become catatonic. Catatonia is a state in which a person does not move and does not respond to others. Catatonia is rare today due to the advent of antipsychotic medications.
    Negative symptoms are associated with disruptions to normal emotions and behaviors. These symptoms are harder to recognize as part of the psychosis and can be mistaken for depression or other conditions. These symptoms include the following:
    - Flat affect (a person's face does not move or he talks in a dull or monotonous voice),
    - Lack of pleasure in everyday life (anhedonia),
    - Inability to begin and sustain planned activities,
    - Speaking little, even when forced to interact.
    People with negative symptoms need help with everyday tasks, and may neglect basic personal hygiene. This may make them seem lazy or unwilling to help themselves.
    Cognitive symptoms are subtle. Like negative symptoms, cognitive symptoms may be difficult to recognize as part of the disorder. Cognitive symptoms include the following:
    - Poor executive functioning (the ability to understand information and use it to make decisions),
    - Trouble focusing or paying attention, and
    - Problems with working memory (the ability to use information immediately after learning it).
    Cognitive symptoms often make it hard to lead a normal life and earn a living, and they can cause great emotional distress.
    Types of Delusions
    Delusions are deemed bizarre if they are clearly implausible and not understandable to peers of the same culture and do not derive from ordinary life experiences. An example cited by the DSM-5 is a belief that someone replaced all of one's internal organs with someone else's without leaving a scar. Non-bizarre delusions, though false, is at least possible, e.g., the affected person mistakenly believes that he is under constant police surveillance. A mood-congruent delusion is any delusion with content consistent with either a depressive or manic state, e.g., a depressed person believes that news anchors on television highly disapprove of him, or a person in a manic state might believe she is a powerful deity. In contrast, a mood-neutral delusion is a delusion that does not relate to the sufferer's emotional state; for example, a belief that an extra limb is growing out of the back of one's head is neutral to either depression or mania.
    There are a finite number of hallucinations possible because we only have five senses and almost all hallucinations are either visual or auditory and most of a similar nature. In sharp contrast, there are a wide range of delusions because our thoughts and beliefs can wander into far-reaching areas of both reality and fantasy. The following is a summary of different kinds of delusions. Many of these delusions will be completely unknown to the reader, however they are not rare among individuals with psychiatric disorders.
    Persecutory delusions - these are the most common type of delusions and involve the theme of being followed, harassed, cheated, poisoned or drugged, conspired against, spied on, attacked, or obstructed in the pursuit of goals.
    Body dysmorphic disorder - the person is excessively concerned about and preoccupied by an imagined or minor defect in his physical features.
    Delusions of reference - the person has a belief or perception that irrelevant, unrelated or innocuous phenomena in the world refer to him directly or have special personal significance.
    Fregoli delusion - the person holds a delusional belief that different people are in fact a single person who change appearance or is in disguise.
    Capgras delusion - a friend, spouse or other close family member, has been replaced by an identical-looking impostor.
    Clinical lycanthropy - the person can or has transformed into an animal, or that he is an animal.
    Cotard delusion - a delusional belief that he is dead, does not exist, is putrefying or has lost his blood or internal organs.
    Delusional jealousy - delusional belief that the spouse or sexual partner is being unfaithful.
    Intermetamorphosis - people in one's environment swap identities with each other while maintaining appearance.
    Subjective doubles - a person believes there is a doppelgänger or double of him carrying out independent actions.
    Mirrored self-misidentification - the belief that one's reflection in a mirror is some other person.
    Reduplicative paramnesia - the belief that a familiar person, place, object or body part has been duplicated. For example, a person may believe that he is not in the hospital to which he was admitted, but in an identical-looking hospital in a different part of the country.
    Somatoparaphrenia - the delusion where one denies ownership of a limb or an entire side of one's body.
    Syndrome of delusional companions - the belief that objects (such as soft toys) are sentient beings.
    Delusion of control - a belief that another person, group of people, or external force controls one's thoughts, feelings, impulses, or behavior.
    Nihilistic delusion - delusion whose theme centers on the nonexistence of self or parts of self, others, or the world. A person with this type of delusion may have the false belief that the world is ending.
    Delusion of guilt or sin - a feeling of remorse or guilt of delusional intensity. A person may, for example, believe that he has committed some horrible crime and should be punished severely.
    Delusion of mind being reading - the belief that other people can know one's thoughts.
    Delusion of reference - insignificant remarks, events, or objects in one's environment have personal meaning or significance. For instance, a person may believe that he is receiving special messages from newspaper headlines.
    Religious delusion - any delusion with a religious or spiritual content.
    Somatic delusion - a delusion whose content pertains to bodily functioning, bodily sensations, or physical appearance. Usually the false belief is that the body is somehow diseased, abnormal, or changed.
    Clonal pluralization of the self - occurs when a person believes there are multiple copies of himself, identical both physically and psychologically.
    Delusional parasitosis - where a person believes that he is infested with parasites.
    Erotomania - a delusion in which the subject believes that another person is in love with him.
    Folie à deux - a delusional belief is transmitted or shared from one individual to another.
    Grandiose delusions - a type of delusion characterized by fantastical beliefs that one is famous, omnipotent, or otherwise very powerful. Delusions of grandeur are generally fantastic, often with a supernatural, science-fictional, or religious bent (for example, the belief that one is an incarnation of Jesus Christ).
    Bipolar Disorder
    The following is borrowed directly from the National Institute on Mental Health. See - http://www.nimh.nih.gov/health /topics/bipolar-disorder/ index.shtm .
    Bipolar disorder, also known as manic-depressive illness, causes extreme or unusual shifts in mood or behavior or energy, activity levels, intense emotion, changes in sleep patterns, and the ability to carry out day-to-day tasks. These distinct periods are called “mood episodes.” Moods in Bipolar disorder are drastically different from the moods and behaviors that are typical for the person. Individuals with a manic episode may feel: very elated, increased energy, trouble sleeping, unusually active, talkative, agitated or irritable. Individuals with a depressed episode may feel: very sad, down, empty, or hopeless, little energy, decreased activity levels, poor sleep, they can’t enjoy anything, worried and empty, or trouble concentrating. Less severe manic periods are known as hypomanic episodes. There are four basic types of bipolar disorder
    • Bipolar I Disorder — defined by manic episodes that last at least 7 days, or by manic symptoms that are so severe that the person needs immediate hospital care. Usually, depressive episodes occur as well, typically lasting at least 2 weeks. Episodes of depression with mixed features (having depression and manic symptoms at the same time) are also possible.
    • Bipolar II Disorder — defined by a pattern of depressive episodes and hypomanic episodes, but not the full-blown manic episodes described above.
    • Cyclothymic Disorder (also called cyclothymia) — defined by numerous periods of hypomanic symptoms as well numerous periods of depressive symptoms lasting for at least 2 years (1 year in children and adolescents). However, the symptoms do not meet the diagnostic requirements for a hypomanic episode and a depressive episode.
    • Other Specified and Unspecified Bipolar and Related Disorders — defined by bipolar disorder symptoms that do not match the three categories listed above.
    Sometimes a mood episode includes symptoms of both manic and depressive symptoms. This is called an episode with mixed features. People experiencing an episode with mixed features may feel very sad, empty, or hopeless, while at the same time feeling extremely energized. Bipolar disorder can be present even when mood swings are less extreme.
    Attention Deficit Hyperactivity Disorder (ADHD)
    Almost all individuals who are deemed incompetent in criminal and immigration proceedings are diagnosed with a psychotic disorder. However, there are other psychiatric disorders and mental health illnesses that can severely impair the individual’s ability to function in a normal, safe, and healthy manner. The remainder of this section will explore this topic.
    One such example is ADHD. Although this is a disorder usually associated with childhood development, it is clear that adults can also suffer from this disorder and the presentation is often quite similar. Debilitating inattention, uncontrolled hyperactivity, and impulsivity can truly undermine the individual’s ability to participate in a legal proceeding and/or assist counsel in any meaningful way. It is also important to note that many adult clients who are evaluated for competency in immigration proceedings may well have childhood developmental disorders, including ADHD, which will better inform the reader about the individual’s challenges during development and how these challenges have informed the client’s ability to function in a normal manner within his family or community as an adult.
    Posttraumatic Stress Disorder (PTSD)
    Many of our clients have immigrated to the United States from countries where basic necessities are unavailable, poverty prevalent, human rights abuse ubiquitous, women abused, the individual may have suffered various abuses in her family or community, and often the government and police are corrupt and/or inept simply unable to provide basic needs or protect its citizens in any meaningful way. Thus, many of our clients have experienced, witnessed, or were confronted with events that involved actual or threatened death or serious injury, or a threat to the physical integrity of the client or another individual – such that the person responds with intense fear, helplessness, or horror in varying degrees. The client may experience: intrusive symptoms re-experiencing the trauma in various forms, avoid stimuli associated with the trauma so that thoughts and feelings and memories do not recur, alterations in cognition and mood because of the trauma, and the client may find herself experiencing alterations in reactivity. While this is most often recognized with clients in asylum cases who have suffered human rights violations or persecution, this also almost inevitably occurs with victims of spousal abuse. And, most importantly, it is not unusual for such clients to also endure or harbor psychotic ideation that may remain unidentified except by a clinical expert. In immigration proceedings, such clients may be extremely guarded, fear authority, evince terrible shame about what has occurred, they may not have the vocabulary to articulate their thoughts and feelings, and in many other ways the client may be limited and perhaps even outright unable to effectively participate in immigration proceedings under the Matter of M-A-M standard.
    Depression / Suicidality
    Major depressive disorder occurs when the person experiences a depressed mood nearly every day, as indicated by subjective feelings of sadness and emptiness. The person also experiences crying, hopelessness / helplessness, anhedonia (the inability to derive pleasure from everyday activities), psychomotor retardation / agitation, fatigue or loss of energy, poor or erratic appetite, significant difficulty staying or falling asleep / nightmares, diminished ability to think or concentrate, or indecisiveness, and guilt, shame, self-blame, worthlessness and the absence of love from others, which may be delusional.
    Major depressive disorder is most important because many individuals with psychotic disorders also suffer from depression in part because of the long-term problems associated with psychiatric illness, including societal prejudices, isolation from family members, lack of employment, and the simple daily challenges of functioning in a safe and healthy manner. During episodes of severe depression, the client may be unable to provide for his own basic needs, he may become radically isolated, and he simply would not have the psychological or cognitive wherewithal to properly participate in legal proceedings, especially if he cannot advocate for himself due to suicidality.
    Persons with suicidality experience an overwhelming sense of helplessness and deep psychological pain with hopeless despair. People who kill themselves fall into two broad categories. Those individuals who want to end their life and those individuals who want to end their psychological and/or physical pain. Clearly, in some cases the two categories overlap.
    Intellectual Disability
    It has long been noted that persons with developmental and/or intellectual disabilities comprise a high rate of those incarcerated in American jails. Intelligence refers to a general mental capability and involves the ability to reason, plan, solve problems, think abstractly, comprehend complex ideas, learn quickly, and learn from experience. An intellectual disability is a developmental disorder characterized by impaired intellectual and adaptive functioning. At one time there was a rigid 70 IQ cut off, however today the individual must also have deficits in two or more areas of adaptive behavior in everyday living. At one time, intellectual disability focused almost entirely on cognition, however it is now universally accepted that functional skills relating to one’s environment is also crucial. As a result of this, a person who functions well in his environment with a low IQ may not be considered intellectually disabled. Similarly, a person may have an “intellectual disability” even though he scores well on an IQ test if he endures systemic challenges in negotiating his environment with regards to everyday needs.
    An intellectual disability may be rooted in a medical or genetic cause (syndromic) such as Down Syndrome or Fragile X Syndrome, or an environmental factor such as malnutrition, lead poisoning, or fetal alcohol syndrome. Other intellectual disabilities appear without any clear cause or abnormalities and, in fact, most people with an intellectual disability do not appear like they are afflicted with this problem. Finally, it should be noted that about half of all people with a developmental disability, such as autism spectrum disorders, epilepsy, cerebral palsy, and fetal alcohol syndrome do have an intellectual disability as well.
    Is it possible to determine that someone has an intellectual disability in the absence of an IQ test? In an absolute sense the answer is no. However, if the evaluator elicits a careful history about the client a great deal may be garnered about the client’s functioning. Questions in this area include when the client learned to sit up, crawl, walk, and talk. These are collectively referred to as developmental milestones. Delays in oral language development, memory skills, reading and writing, social rules, problem-solving skills, appropriate interpersonal functioning, and delays in the development of adaptive behavior such as self-help or self-care all provide extremely important insights into the possibility of an intellectual disability. Finally, an individual without sufficient insight or judgment may well suffer from an intellectual disability.
    Cognitive Issues
    Finally, an individual may not be psychotic, or have a mood disorder, and may not have an intellectual or developmental disability, and yet a cognitive deficit and/or disability may well preclude an individual from participating in the immigration proceedings.
    Dementia is not a specific disease, but rather an overall term that describes a wide range of symptoms associated with a decline in memory or other thinking skills severe enough to reduce a person's ability to perform everyday activities. Alzheimer’s Disease accounts for the majority of cases of dementia. Vascular Dementia, which occurs after a stroke, is the second most common dementia type. But there are many other conditions that can cause symptoms of dementia, including some that are reversible, such as thyroid problems and vitamin deficiencies, or even head trauma.
    Cognition problems are often signaled by poor short or long-term memory, disorientation, loss of consciousness, confusion, the inability to retain information, the inability to learn new information, difficulty with processing information, and the inability to recognize and / or name objects or faces.
    Malingering and Factitious Disorder
    Background
    Can the evaluator determine that the client is not “faking” symptoms in an effort to avoid immigration proceedings? There are two major considerations in this area: factitious disorder and malingering.
    Factitious Disorder
    A factitious disorder is a psychiatric disorder in which a person acts as if he has an illness by deliberately producing, feigning, or exaggerating symptoms for the purpose of psychological or emotional gain. Factitious disorder imposed on another is a condition in which a person deliberately produces, feigns, or exaggerates the symptoms of someone in his or her care for psychological or emotional gain.
    Malingering
    Malingering is not a psychiatric disorder. It occurs when a person intentionally produces false or grossly exaggerates physical or psychological symptoms most usually for the purpose of external gain (e.g., avoiding military duty or work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs). Red flags that the client is malingering include:
    - a client’s attitude toward the examining physician is often vague or evasive,
    - mood may be irritable or hostile,
    - thought processes are generally cogent, and
    - thought content is marked by preoccupation with the claimed illness or injury.
    Malingering remains a concern when the following may be present:
    - Medicolegal presentation (the intersection between healthcare and legal issue),
    - Marked discrepancy between the claimed distress and objective findings,
    - Lack of cooperation during evaluation and in complying with prescribed treatment, or
    - Presence of an antisocial personality disorder
    Summary
    This evaluator has indeed interviewed several clients who were found to produce false narratives in immigration cases specifically for the purpose of obtaining benefits, including obtaining a green card. While I have not seen this in the course of immigration court proceedings as such, there have been a handful of clients over the last 10 years or so who have admitted under close scrutiny that their claims are false. This includes clients with petitions for spousal abuses and clients who petition for asylum based on persecution in their country of origin.
    Conclusion
    Competency evaluations in immigration proceedings is governed by Matter of M-A-M, which serves as the guiding principle for the mental health evaluator with immigration clients. This chapter outlined (1) criteria in the Matter of M-A-M case, (2) special challenges in the competency evaluations in immigration proceedings, (3) major psychiatric issues that require scrutiny, and (4) malingering and factitious disorder as alternate considerations.

    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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