Mental Health Professionals and Affirmative Applications for Immigration Benefits: A Critical Review of Administrative Appeals Office Cases Involving Extreme Hardship and Mental Harm
University of St. Thomas School of Law (Minnesota)
Sarah S. Brenes
April 1, 2011
Immigration Briefings, No. 11-04
U of St. Thomas Legal Studies Research Paper No. 11-27
Mental health professionals and mental health determinations have long played a role in the creation and interpretation of immigration law. We narrow our focus here to the Administrative Appeals Office (AAO) and how it views the contributions of mental health professionals in two areas of adjudication: hardship cases (specifically hardship waivers based on family relationships, and trafficking cases) and mental harm cases (Violence Against Women Act claims and victim of crime visas (U visas)).
We discuss the “textbook” differences between forensic assessments and reports based on therapeutic relationships. A close reading of AAO cases reveals that the line between formal forensic evaluation and therapeutic reports is often blurred. Adjudicators are after facts and information, and are not concerned with whether a report is called “forensic” or “therapeutic.” Perhaps ironically, reports created for the purposes of litigation by assessors attempting to adhere to more objective standards may well be given less weight by the AAO than reports by therapists.
In the upside down world of immigration adjudication, AAO decisions often give short shrift to stand-alone forensic evaluations, particularly when there is (1) no evidence of therapy either by the assessor or someone else and/or (2) the assessment is based only upon an intake from the subject in a single, short session. The whiff of secondary gain often overpowers the force of professional opinion. We can understand the desire of adjudicators to rely on contemporaneous therapy notes or on reports written by therapists with ongoing client relationships. We nonetheless point out the shortcomings of such a preference.
Our article not only analyzes case law, but provides practical tips to both attorneys and mental health professionals working with applicants for immigration benefits.
This article “Mental Health Professionals and Affirmative Applications for Immigration Benefits: A Critical Review of Administrative Appeals Office Cases Involving Extreme Hardship And Mental Harm,” 11-04 Immigration Briefings 1 (Apr. 2011), (c) 2011 Thomson Reuters, is posted with Thomson Reuter’s permission. For additional information on Immigration Briefings, visit http://west.thomson.com/immigration-briefings/5086/15867088/productdetail.
Number of Pages in PDF File: 37
Keywords: Immigration, Mental Health, Administrative Appeals Office, Psychologists, Social Workers, Medical Doctors, Extreme Hardship, Human Trafficking, Crime Victims, Violence Against Women Act, Expert Witnesses, Expert Testimony, Mental Harm
Date posted: September 8, 2011