Forensic Psychological Evaluation for Hardship or Waiver Applications

Hardship psychological evaluations are conducted when a citizen or resident of the United States (Applicant) applies for an immigration waiver, if the deportation of a relative causes extreme and exceptional hardship.  A psychological evaluation explores and documents the impact of the immigration problems, which may include mental health diagnoses, impaired work and social functioning, and financial difficulties.   When appropriate, the Extreme Hardship psychological evaluation explores and documents issues that impair the Applicant’s ability to move to another country and issues that impair the Applicant’s ability to reside in the United States without the Alien.

Forensic psychological assessments for immigration courts: these psychological evaluations include assessments of exceptional and extremely unusual hardships.  During this description, the forensic psychologist (expert witness) will try to achieve these objectives: the importance of forensic psychological evaluations in hardship determinations in determining eligibility for relief or removal.  Describe the two levels of hardships required to establish the respondent alien’s eligibility for relief under immigration law.  The objective also includes helping the psychologist understand who is the focus of the assessment during a psychological evaluation (hint is not the respondent alien but instead the American citizen or the legal permanent resident LPR).  The narrative will also include a description of the factors that the forensic psychologist (expert witness) should take into consideration when a forensic assessment for hardship purposes is being conducted, usually on behalf the American citizen or the legal permanent resident LPR who wants to show his hardship if the respondent alien or alien is sent to country of origin (deported).

When does the respondent alien need a psychological evaluation to show hardship? There are several forms of immigration relief that require proof of hardship before immigration court.  these forms of relief include: cancellation of removal for non-lawful permanent residents who can show hardship.  212 (h) waivers of inadmissibility usually due to crimes committed by the respondent alien also need to show hardship. When a respondent alien comes before the immigration court and asks for a suspension of deportation he must show the immigration court that his qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship).  The immigration court or immigration judge can consider the hardship that will fall upon qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship) if the respondent alien does not receive a suspension of deportation because of commission of violent or dangerous crime.  The court or immigration judge can exercise discretion for violent or dangerous crimes committed by the respondent alien despite hardship to the qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship).  Furthermore, hardship is a factor in all discretionary forms of relief.  Now, we have to define what hardship is.

There are levels of hardships requires.  Usually hardship looks at the effect on qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship).  Exceptional and extremely unusual hardship is the first level and the second level is just extreme hardship.  Defining these types of hardships is difficult but there is some guidance based on case law and immigration law.  Exceptional and extremely unusual hardship refers to substantially beyond what would ordinarily result from removal.  In this case the forensic psychologist (expert witness) conducting the psychological evaluation does not try to define hardship or meet any hardship standard.  Instead, the forensic psychologist (expert witness) before the immigration court considers the factors that may result in psychological hardship to the qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship).

Who is the focus of the hardship evaluation conducted by the forensic psychologist (expert witness)?  The focus is sometimes the respondent alien, but most of the time the focus of the hardship evaluation is qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship).

Immigration court can consider many hardship factors tied to the removal of a respondent alien and qualifying relatives (American citizen or the legal permanent resident LPR will suffer hardship).  Some hardship factors include age, including the respondent’s age at time of arrival to the united states (US).  This is because the longer the respondent alien has resided in the US, the more hardship he is suffer is sent to the country of origin.  Another hardship factor considered by immigration courts and judges is family separation and composition and location of family.  if all family are in the US, then the hardship would be greater upon return to the country of origin.  Community ties is another hardship that many support the case of the respondent alien and qualifying relatives, (the American citizen or the legal permanent resident LPR will suffer hardship).  For example, the person may show hardship if they have close community ties such as church affiliation, community service, military service, businesses, etc.  another hardship considered by the immigration court and immigration judge is the conditions of the country of origin – commonly known of country conditions – hardships under this factor include crime, economy, job opportunities and other factors that may cause hardships.  Other factors that support hardship arguments are any medical, psychological or educational needs suffered by the respondent alien of qualifying relatives.  The forensic psychological evaluation is particularly helpful document any psychological and educational hardships.  The forensic psychological evaluation can include assessment of the educational and psychological needs of the respondent alien and qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship).  For example, the psychologist can document hardship if there is a need for special education, if the respondent alien or the qualifying relative needs mental health treatment, or if the respondent alien or American citizen needs mental health treatment, including any mental health treatment to address the psychological or mental hardships associated with the immigration problems of the respondent alien.

The documentation of hardships may include any emotional ties the respondent alien and qualifying relatives may have in the USA and loss of those emotional ties may result in psychological hardship or emotional hardship that may be either extreme hardship or exceptional and extremely unusual hardship.

Acculturation and adaptability are another two factors that immigration courts can consider in determining whether a respondent alien and/or qualifying relatives are suffering extreme hardship or exceptional and extremely unusual hardship.  The forensic psychologist (expert witness) may be especially helpful at informing these hardship issues because acculturation and adaptability may be impaired or facilitated by the person’s emotional stability, intelligence, trauma history and other factors assessed by psychologists and documented in psychological evaluations.  Acculturation and adaptability is not only something that may affect the respondent alien who has been in the USA since his youth, but it is also a hardship that affects qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship) who have never been to the country of origin or barely know the country of origin.  qualifying relatives, (the American citizen or the legal permanent resident LPR will suffer hardship) may not even know the language or culture of the country of origin.  At times, the respondent alien and the qualifying relatives (the American citizen or the legal permanent resident LPR will suffer hardship) come from different countries of origin other than the united states (US).

When the forensic psychologist (expert witness) has to render an opinion regarding extreme hardship or exceptional and extremely unusual hardship the expert must be careful to only render opinions within his area of expertise.  Meaning areas within psychology and forensic psychology as they apply to hardship factors considered by immigration court.  the forensic psychologist should describe hardship factors individually and in the aggregate as the immigration, court must consider the case as a whole rather than individual factors.

Psychological evaluations are often used when applying for 601 waivers, also known as waiver of grounds of inadmissibility or grounds of excludability.  The immigration psychological evaluation is conducted by a Forensic psychologist (expert witness) in order to identify and document factors that support the 601 waiver.