Forensic Psychological Evaluation for Political Asylum

Political Asylum Psychological Evaluations serve to document the impact of mistreatment, abuse, or persecution inflicted in a foreign country. The emotional impact may include the development of formal mental health disorders such as Major Depressive Disorder and Posttraumatic Stress Disorder (PTSD). The psychological evaluation includes a clinical interview and testing of the immigrant applying for asylum.

Assessing Victims of persecution and torture: there are usually three types of forensic psychology evaluations done within this section.  These forensic evaluations include: asylum evaluations for the respondent alien.  Withholding of removal of the respondent alien. In addition, conventions against torture (asylum) of a respondent alien.

When conducting these forensic psychological evaluations one must identify immigration reliefs based upon a fear of harm as well as the legal requirements for immigration relief, the bars to immigration relief, and benefits for each immigration relief.  The forensic psychological evaluation must reflect a clear understanding of persecution and torture under immigration law.

The forensic psychologist (expert witness) that conducts a forensic psychological evaluation for immigration, specific or particularly for the assessment of victims or persecution and torture (asylum, withholding of removal, and conventions against torture (asylum)) must understand the role of the mental health professional in asylum, withholding and conventions against torture (asylum) (CAT).  The forensic psychologist (expert witness) and the forensic psychological evaluation must reflect an understanding of the Istanbul protocol in conducting examinations of victims of serious harm.

A forensic psychological evaluation for asylum can be used to document the many causes that serve to make the case for this type of case for victims of persecution and torture.  Asylum applications for be based on religion, nationality, political opinion, sexual orientation, homosexuality, social group, female genital mutilation (which may be included under specific or particular social group).

A forensic psychological evaluation for immigration court serves in immigration court as a way to document the respondent alien’s well founded fear of persecution.  It helps demonstrate that the respondent alien has objectively reasonable fear also known as the respondent alien’s true fear of persecution of some form of true threat.  The persecution is likely to result in serious harm of physical, psychological or financial nature.  The forensic psychological evaluation for immigration courts must show how the respondent alien has a nexus between the specific or particular protected social group or condition (race, religion, nation, sexual orientation, homosexuality, gay or lesbian) and the well founded fear of persecution.  The forensic psychologist (expert witness) should include in the forensic psychological evaluation any evidence suggesting that the persecution is to be inflected by the government or the persecution is enabled by the government.  Furthermore, the forensic psychological evaluation for immigration courts (asylum specific or particular) should indicate whether the government is unwilling to control the persecution inflicted against the defendant in immigration court.

The forensic psychologist (expert witness) doing a psychological evaluation for asylum before an immigration court must document whether there is well founded fear of persecution of the part of the defendant.  The well founded fear expressed by the respondent alien has a subjective component, an objective component, and must meet about 10% likelihood of persecution.  The respondent alien is given the burden of proving the 10% likelihood of persecution but none of the following defines the 10%: immigration court, immigration laws, immigration case law, or immigration standards.

The forensic psychologist (expert witness) conducting the psychological evaluation must explore whether the respondent alien asking for asylum has a possibility of internal relocation.  Internal relocation refers to the possibility of moving within the same country in order to avoid the well founded fear of prosecution due to objectively reasonable fear and true threat resulting from two things: the respondent alien belongs to a specific or particular social group. The respondent alien is being persecuted due to characteristics such as race, religion, ethnicity, political opinion, sexual orientation, female genital mutilation, nationality, etc.  The respondent alien’s government is inflicting the persecution due to membership in a specific or particular social group (race, religion, ethnicity, political opinion, sexual orientation, female genital mutilation, nationality).  The respondent alien’s government is unable or unwilling to protect the respondent alien who belongs to that specific or particular or particular social group (race, religion, ethnicity, political opinion, sexual orientation, female genital mutilation, nationality).

The forensic psychologist (expert witness) conducting an asylum psychological evaluation must be familiar with immigration court law and definitions of persecution.  Persecution is seen as extreme concept that does not include offensive treatment to warrant the respondent alien’s claim of asylum.

As mentioned above, the forensic psychologist (expert witness) working for immigration court must understand that asylum requires more than just persecution (as supposed to just offensive treatment).  Asylum must show a nexus between persecution of the respondent alien before immigration court and acts that the government is perpetrating, or the government is unable or unwilling to protect against.  The persecution must be on account of race, religion, nationality, political opinion, or membership in a particular social group (for example gay, lesbian, homosexual, transgender).

Immigration court, immigration laws, immigration case law, and immigration standards provide some guidance regarding the definition of particular social group.  The respondent alien and the forensic psychologist (expert witness) doing the evaluation for immigration court must be closely familiar with the definition of particular social group.

In immigration court, a respondent alien belongs to a particular social group when he has common characteristics with others that cannot be changed such as sexual orientation – gay, lesbian, homosexual.  When the respondent alien is transgender, he may belong to a particular social group.  The forensic psychological evaluation for asylum must explore whether the respondent alien’s characteristic is immutable – meaning that the respondent alien cannot change his belonging to the particular social group.    The forensic psychological evaluation for asylum must explore whether the respondent alien’s characteristic is not only immutable but also distinct – meaning that the respondent alien cannot change his belonging to the particular social group and he is distinct or different from most. The forensic psychological evaluation for asylum must explore whether the respondent alien’s characteristic is not only immutable and distinct, but it must also show that the particular social group characteristic is definable with some particularity.  In other words, the forensic psychologist (expert witness) doing a psychological evaluation for asylum should be able to define with some partiluraty common characteristics such as race, religion, nationality, political opinion, and membership in a particular group such as sexual orientation, gay, homosexual, lesbian, transgender, and others.  There are particular countries where being gay makes the respondent alien a member of a particular group.  Some of these countries include Iran, Brazil, and many other in Latin America.

When the forensic psychologist (expert witness) is writing a forensic psychological evaluation for immigration court, he must be familiar with asylum case legal, asylum legal precedent, and other considerations that immigration courts may look at when deciding asylum cases.

For example, the forensic psychological evaluation has to describe whether the persecutor if the government, meaning the government actor in the asylum case.  The psychological evaluation has to explain whether the asylum is based on persecution because the government is unwilling to control the persecution.  The forensic psychologist (expert witness) has to describe whether the government is unable to control the persecution inflicted by a government actor.

The forensic psychologist (expert witness) writing the forensic psychological report on behalf of the respondent alien and for the immigration court has to be familiar with the bars to asylum cases. If the respondent alien has committed an aggravated felony, then immigration court can find it to be a bar to asylum application.  Another reason to bar the respondent alien from getting asylum may be a conviction of a particularly serious crime in the United States (US) and the immigration court decides.  Another bar to the respondent alien’s asylum in immigration court could be the commission of a serious non-political crime before entering the united sates (US).  The immigration court considering the respondent alien’s application for asylum can assign a one year ban due to reasons listed above.  Other bars to asylum in immigration court include ability to do a firm resettlement of the respondent alien.  If the respondent alien requesting asylum has committed or has been the persecutor of others, immigration court may deny the asylum application.  If the immigration judge finds that the respondent alien has engaged in terroristic activity or memberships, the asylum petition before the court can be denied as this a bar to such asylum application in the United States (US).

One of the most important bars to an asylum application in the United States (US) is present when the respondent alien is a threat to national security.

When immigration court grants an asylum petition, the respondent alien is granted many benefits in the United States (US). The respondent alien’s benefits include refugee status before the immigration court.  Lawful permanent residence (LPR) in the United States and before immigration court.  Derivative status for the family of the respondent alien who was before the immigration court of the United States (US)

When immigration courts receive applications for asylum, they place the burden of proof on the respondent alien.  This means that the respondent alien who wants the asylum will be granted the petition if he can meet by credible testimony the standard put forth by immigration law.  The accounts of the respondent alien must be corroborated as much as possible but immigration court does not have the burden of proof.  Instead, the respondent alien must bring before the immigration court the evidence needed to win the asylum application.  The proof may include a forensic psychological evaluation prepared by a forensic psychologist (expert witness) who specializes in the assessment of indivuals who have been persecuted, traumatized, abused, etc.  the respondent alien has the burden of proof, but the immigration court grants the respondent alien the benefit of making his asylum case based on presumption based upon past persecution unless changed conditions or internal relocation have occurred.   This means that the asylum petition can be denied if the respondent alien is unable to show the persecution would continue if he goes back to the country of origin.

Withholding of removal elements: A respondent alien before immigration court may be eligible for asylum if not for their crime.  Thus, the withholding of removal is the respondent alien’s only option before immigration court.  Withholding of the removal proceedings is only temporary stay for the respondent alien.  When the respondent alien comes before immigration court asking for a withholding of removal, the burden of proof is much higher than asylum.  Some of the considerations under a withholding of removal include: when the respondent alien’s life or freedom would be threatened in the country of origin if the withholding of removal is not granted.  When the respondent alien is able to show nexus to a protected group.  It should be noted that although the immigration judge has great discretionary power in asylum cases, the immigration court does not have discretionary power when a withholding of removal is presented before the court.

The respondent alien who is not successful during the asylum application but is successful filing the withholding of removal still get many benefits to the withholding of removal.  These benefits to the withholding of removal include being allowed in the United States (US), which is the meaning of the withholding of removal.  Unlike the asylum, the respondent alien who is granted a withholding of removal does not get a lawful permanent residence (LPR).  Unlike the asylum applicant/respondent alien, the withholding of removal does not have derivative status for relatives.  A benefit given by the immigration courts to the applicant is that there is no time limit on the application of withholding of removal but there is time limit in the asylum application.

We have already discussed the burden of proof and bars to asylum application before immigration court.  Let’s discuss what are the burden of proof and the bars to application when the respondent alien applies for a withholding of removal.

The respondent alien before immigration court may be denied an application for withholding of removal if the respondent alien has the means to firm resettlement in his country of origin. The withholding of removal can also be denied if the respondent alien has committed a particularly serious crime in the United States (US).  Another reason to bar the respondent alien’s petition for a withholding of removal is the commission of a serious, non-political offense prior to entry into the United States (US).  If the respondent alien is proven to have engaged in terroristic activity or terroristic membership then the withholding of removal will be denied.  One last bar the withholding of removal is when the respondent alien poses a threat to national security of the United States (US).

The respondent alien applying for protection under the victims of persecution and torture can motion for protection under the conventions against torture (asylum).  The forensic psychologist (expert witness) writing the psychological evaluation for immigration court must understand the definition of torture as defined under the conventions against torture (asylum).  The forensic psychologist (expert witness) and the evaluation written to the immigration court must reflect that the definition of torture means that the respondent alien’s country of origin committed the torture, or the respondent alien’s country of origin consented to the torture inflicted on the respondent alien.  Under the conventions against torture (asylum), the definition of torture includes willful blindness when the respondent alien’s country of origin did not prevent the torture.

According to the conventions against torture (asylum), the respondent alien has a valid claim before immigration court when the respondent alien has suffered severe physical or mental pain or suffering.  In these cases, the forensic psychologist (expert witness) writes a psychological evaluation reflecting the consequences of such torture inflicted on the respondent alien.  Many times the psychological evaluation includes diagnostic impressions or mental health diagnoses that include posttraumatic stress disorder (PTSD) and other serious conditions such as depression and anxiety.

According to the conventions against torture (asylum), the respondent alien must have suffered intentionally inflicted severe physical or mental pain or suffering. The torture of the defendant must have included some form of proscribed purpose.  Proscribed means that the torture inflicted on the respondent alien was ban or outlaw even the respondent alien’s country of origin.  The forensic psychologist (expert witness) conducts a psychological evaluation to assess the consequences of the torture on the defendant.  The impressions and diagnoses are likely to include posttraumatic stress disorder (PTSD) and other serious conditions such as depression and anxiety.

The conventions against torture (asylum) tells us that the torture not only has to be severe physical or mental pain, but it also has to be proscribed and with the consent or acquiescence of the government in the respondent alien’s country of origin.  This means that the willful blindness comes into play when a public official, government entity allows encourages and willfully turns blind eye to the torture of the respondent alien.

The conventions against torture (asylum) also tells us that the respondent alien has been tortured if he is in custody of physical control of the respondent alien’s country of origin.  When the torture is not the result of lawful sanctions under the respondent alien’s country of origin.  It is not the job of the forensic psychologist (expert witness) doing an evaluation for immigration court to investigate whether all criteria for the conventions against torture (asylum) are met (i.e., severe physical or mental pain or suffering, intentionally inflicted, proscribed purpose, with consent or acquiescence or a public official and with willful blindness, whether under the custody or physical control, and not as result of lawful sanctions).

Instead, the forensic psychologist (expert witness) has the task of doing an objective psychological evaluation for immigration court to explore whether the respondent alien has some psychological issues resulting for torture.  These issues may include posttraumatic stress disorder (PTSD) and other serious conditions such as depression and anxiety.

According to immigration law, there are bars to the respondent alien’s petition for protection under the conventions against torture (asylum).   The respondent alien is not eligible if he has the possibility of firm resettlement, if the respondent alien committed particularly serious crime in the United States (US) (for withholding of removal only); if the respondent alien petitioning under the conventions against torture (asylum) has committed some terroristic activities or the respondent alien has had a terroristic membership. The respondent alien applying for asylum under the convention against torture can be denied if he is a threat to national security.

Immigration law/immigration court allows some benefits when asylum is granted under the convention against torture.  The respondent alien is allowed to remain in the united states (US).  However, the respondent alien before immigration court is not given lawful permanent residence (LPR). The respondent alien does not receive derivative status for relatives.  One positive aspect of the petitioning the immigration court for protection under the convention against torture (not asylum) is that there is no time limit on application.  Additionally, the respondent alien does not have to prove to the immigration court that there is a nexus to a protected group.  specific or particular protected social group or condition (race, religion, nation, sexual orientation, homosexuality, gay or lesbian) and the well founded fear of persecution.

When a respondent alien goes before immigration court and asks for protection under the convention against torture (not asylum) the respondent alien has the burden of proof.  The respondent alien has to show that the is more likely than not to be tortured if returned to the country of origin.  The applicant or respondent alien has to show that there is a clear probability of torture if the immigration court denies the application under the convention against torture (not asylum) and he is returned to his country of origin.  In quantifiable terms, the respondent alien must show to immigration court that there is greater than 50% (fifty percent) chance that he will be tortured if his application under the convention against torture (not asylum) is denied and he is sent back to his country of origin where there will be persecution torture, physical or mental pain or suffering.

There are some draw backs to an application for protection based on the convention against torture (not asylum) before the immigration courts of the united states (US).  When the respondent alien makes this application, his release from immigration detention is not guaranteed.  The respondent alien who is applying for relief under the convention against torture (not asylum) may be sent to a third country as indicated by immigration court because it is felt that the respondent alien can do a firm resettlement and will not be tortured or persecuted by the government, unlike the country or origin.  When the respondent alien is granted a petition under the convention against torture (not asylum), the respondent alien can be recalled by immigration court and the status is easily terminated if the immigration court finds cause.

the convention against torture (not asylum) uses as a resource the Istanbul protocol, which is a best practices manual that describes effective investigation and documentation techniques when torture cases are being considered.  The Istanbul protocol was created by the united nations high commission of refugees (UNHCR).