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Adam Walsh Act Forensic Evaluations: Psychosocial Evaluation of Family-based Immigrant Petitions

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Adam Walsh Act Forensic Evaluations: Psychosocial Evaluation of Family-based Immigrant Petitions

On July 27, 2006 President George W. Bush enacted the Adam Walsh Child Protection and Safety Act. This law was meant to protect children from sexual exploitation in violent crimes, prevent child abuse and child pornography, and to promote Internet safety. However, the act also amended INA Section 204 and effectively prohibited US citizens and lawful permanent resident aliens who have been convicted of any “specific crime against a minor” from filing any family-based immigrant petition on behalf of any beneficiary. In this program, forensic expert Mark Silver presents an overview of the Adam Walsh Act as it pertains to immigration defense lawyers who assist clients with family-based immigration petitions. Mr. Silver will also address how clinical evaluations help advocate for the family members.

Presenters

Mark Silver
Attorney & Clinical Social Worker
Criminal & Immigration Mitigation Expert

Transcript

Eric Cervone:    All right. Thank you for tuning into Quimbee CLE. I am your host, Eric Cervone. Today, I am honored to be joined by Mark S. Silver. Mark as a New York state licensed clinical social worker, and is admitted to practice law in New York and New Jersey. Mark works as consultant for law firms throughout the United States, conducting psychosocial evaluations and writing formal reports in forensics and mitigation, immigration and criminal cases. He's worked with clients from 40 countries throughout the world on various individual, family, and mental health issues related to criminal conduct and immigration cases, and often provides expert testimony. Mark, thanks so much for being here.

 

Mark S. Silver:  Thank you.

 

Eric Cervone:    So Mark, today, we are talking about the Adam Walsh Act. We're talking about forensic evaluations related to the Adam Walsh Act and how they relate to immigrant positions. Before we even dive into the subject, could you give us a little bit of background on the Adam Walsh Act and how it's relevant to immigrants.

 

Mark S. Silver:  Sure. The Adam Walsh Act, as I have in the slides, really emanates from concern regarding the safety of children. And it was originally meant to protect children from sexual exploitation, prevent child abuse, limit child pornography, and to promote internet safety. But really the core issue here for us is that had the effect of amending the Immigration and Nationality Act. And it effectively prohibited US citizens and lawful permanent residents that is people with Green Cards who have been convicted of any specified offense against a minor from filing any family-based immigrant petition on behalf of any beneficiary that is an adult or child, unless the Secretary of the Homeland Security determines in his or her sole unreviewable discretion that the petitioner poses no risk to the beneficiary.

  So usually in immigration work, we're evaluating clients because they've come to the United States illegally and they have some sort of problem. These are unique cases because it's the American citizen who has a problem because of their history of committing some kind of offense against a minor often sexually-based. And now that American citizen is trying to petition most often for his spouse or fiancee to live or come to the United States and be in his family as a permanent resident.

 

Eric Cervone:    So let's talk about these forensic evaluations. What is a forensic evaluation? When does that need to be considered in one of these petitions?

 

Mark S. Silver:  Well, forensic evaluations are broad psychosocial assessments to help lawyers better understand in a holistic way, anything and everything that can advocate for the client, given their psychological history, their social wellbeing. It's particularly important for immigration lawyers because in a lot of these cases, we're proving, especially in deportation and waiver cases, we need to prove hardship for family members. In asylum cases, we want to know about psychosocial background because of history of persecution or human rights violations, for example. In spousal abuse cases, for example, we want to know about the history of abuse that the person suffered. It's particularly crucial in something called criminal immigration cases or crimmigration, where there is an element of family hardship and family evaluation that's required. However, there is also a criminal component to the case. Usually it's the alien, then in this case, it's the American citizen who has a criminal history.

  Now usually as I said, we have the alien, who's committed some kind of illegal activity such as coming to the United States through misrepresentation or fraud or committing a felony. But here it's the American citizen who needs to have their criminal history looked at and specifically through something called mitigation. That is, we look at anything and everything in this person's background to help explain and contextualize the person's illegal conduct so that the adjudicator who's reviewing the case will have a much more sympathetic and insightful and broader understanding of the person's criminal history so that they can really be able to identify with any factors that help explain how this person got themselves into so much trouble.

 

Eric Cervone:    And you talk about disabusing the adjudicator of bias. Can you explain with what that is and how mitigation plays into this?

 

Mark S. Silver:  It's extremely important. Mitigation is really from the world of criminal defense lawyers. And in the world of criminal defense, in which I also do a lot of work, there is inherent bias and prejudice against criminal defendants, simply because of their skin color or gender or even kind of clothes that they wear. It's especially relevant in criminal immigration cases with the Adam Walsh Act because the person has committed offense against a minor and there are inherent biases and prejudices on the part of the adjudicator in the USCIS, which is really the core part of the CLE and the slides that we have.

  And it reflects how we need to tackle these biases and prejudices against the client, who's committed this offense against a minor and explain and contextualize the person's conduct so that we're able to recapture the person's humanity. So we're able to recapture the person's sense of community and their positive aspects and so on. Because the biases and prejudices are extremely serious. And for example, one major assumption is that people who've committed an offense against a minor, which of course is a serious thing. The assumption is this person can never be trusted to be around children again, or this person can never be trusted to be around female adults again. And there are biases and prejudices in every case, but they're particularly serious in these kinds of cases where there is such a heavy stigmatization.

 

Eric Cervone:    And how does immigration services consider all the factors that are relevant when determining whether the petitioner pose any risk to the safety of society going forward?

 

Mark S. Silver:  Well, it's a good news and bad news scenario. The good news is that they really do consider all the factors in a cumulative fashion, that is, they take the entire mitigation package as a whole and they consider anything and everything that helps explain it. In fact, that's part of the regulation and that's part of the core of mitigation, explaining everything and everything positive. Unfortunately, the legal standard is that the American citizen is petitioning for his or her family members, must prove that they pose no risk to the beneficiary. It's an extremely high standard, that they pose no risk. And it's under the sole and unreviewable discretion by the Secretary of Homeland Security. So proving no risk is an extremely high bar. And as a result, especially in these kinds of cases, the adjudicators who look at these cases, look at them with skepticism to begin with. There's a lot of bias and prejudice and this particular standard makes it an extremely difficult kind of case to be successful in.

 

Eric Cervone:    What percentage of cases would you say are generally successful?

 

Mark S. Silver:  It's interesting. I don't have a statistic offhand. I've done literally hundreds and hundreds of spousal abuse cases, hundreds and hundreds of criminal immigration cases and waiver cases and deportation cases, numerous asylum cases and consulting for different problems. One of the problems with the Adam Walsh Act is because these cases are relatively unusual, you don't have people that have done hundreds of these cases. I've consulted on a handful of them and I've done a small handful of them. I happen to have done a lot of work for criminal lawyers in a very similar kind of area for sex crimes and pornography and so on. So I have a very good sense of how to approach these cases. But I don't know if we have a great deal of outcome research on exactly what goes into making a winning case versus not. The problem is the standard, which is any offense against a minor is very broad.

  So I've seen quite a few cases where the offense against a minor is one, a relatively minor offense, and two, it happened a long time ago and three, it was not repeated. And then the other end of the spectrum, we have cases, with Adam Walsh Act where the person has repeated sex offenses against a minor. The person does not really show remorse and regret, the offenses against the minor were relatively recently. And so, you have a very wide spectrum of referrals that can come to the expert or to the lawyer. Some are relatively minor and happened a long time ago and some are really very, very serious and happened more recently. And I think the outcomes for these kinds of cases are probably going to be quite different, even though you would approach the case in relatively similar ways, the outcomes could be quite different as one can imagine.

 

Eric Cervone:    And as we're lucky that these cases are relatively rare, let's go through the specific factors one by one, that the court or that Immigration Services will consider when it comes to these petitions. So the first one, you talk about is the nature and severity of the act against the minor. Can you get into that, what exactly does that mean? What exactly do they look at?

 

Mark S. Silver:  Right? So these are a set of crucial factors that are reflected in the regulations and they really get to the core of the biases and prejudices that the adjudicator may have when reviewing these cases. So first factor, and it's probably the most important. And I kind of noted this a little just a moment ago is nature and severity. And I'll give you a very good example. I've done two cases that I've consulted on where there were no human victims involved. Now, how is that possible? These were people who were on chat rooms. They thought they were speaking with underaged females, and in fact they were not. This is all digital, of course. They were communicating in the chat rooms with undercover police officers. And in both cases, this happened once for each of these two cases I saw, two different cases, two different parts of the country.

  It was basically sting operation. These people were subsequently arrested. So in these two cases, the offender had zero physical contact and zero sexual contact with a female and with anybody, right? There's zero physical and sexual contact. So clearly the nature and severity of that is very different from cases where I've seen, where there is direct and repeated physical and sexual contact, and perhaps also emotional, verbal and other abuses to the victim.

  And the circumstances are also very important. This is something else I have underlined in this factor. We want to know the circumstances, not only of the actual offense, but we want to know the circumstances of this person committing the offense. So the subtlety is actually very important. The first one concerns, obviously the interaction of the perpetrator of the crime with the victim. The second concerns, the perpetrator's actual contextual life issues at the time. Was that person contending with major life stressors, was that person contending with traumas in that person's life for one reason or another, and so on. So the bias on the behalf of the adjudicators in this factor is that it must necessarily have been a horrible offense. That anybody commit, anybody who's arrested for an offense against a minor must necessarily have done something that's just horrific. When in fact in these two examples I gave you of people in chat rooms, chatting, not with a human at all, but with digitally through the computer to an undercover police officer, it's very different in kind of nature from dealing with an actual human being.

  And that's really the first thing you want to get across. You want to eat at that bias that the adjudicator might have. Now, this is not to minimize the wrongdoing of the perpetrator. This is not to minimize or to sweep under the carpet or in any way to condone chatting... that the person's, thinks he's chatting with an underage female, and that it's fine. Obviously it's not fine. Obviously it should be criminal. Obviously it should not be allowed. Obviously this is something we don't want in our community, our society, but we need to contextualize it. We need to understand the nature and the severity of it. And that's the first major factor, and it's probably the one that really speaks to the other factors and allows them a much greater insight.

 

Eric Cervone:    Right. And the next factor is criminal history. And that obviously does play a role in the first factor. So can you talk about criminal history specifically?

 

Mark S. Silver:  Right. So you're going to have clients that committed this sex act, for example, against a minor female, and the person has no other criminal history and it happened 20 years ago. Well, that shows something very positive, right? The inherent bias in this factor is that it's only the tip of the iceberg. The inherent factor, inherent bias is that, well, yeah, this guy committed one criminal act 20 years ago, but he was only caught once. Really, this person probably committed a whole bunch of other similar kinds of criminal acts against minor females, but we're only aware of this. That's the bias, that's the prejudice. And we need to tackle that by saying, no, this person in fact has no other criminal history and you can't assume other criminal history, unless it's concrete. And it's crucial to show that this person has a clean record and it's reflected through other things such as his rehabilitation having, for example, a very consistent work history, a very consistent and healthy relationship with family members, a consistent and healthy set of ties with his community, perhaps with his church and interest, hobbies, and so on and so forth.

  On the other side, if there is a criminal history and I've seen many cases where the person has that offense against a minor and then subsequent arrest for other things. For example, I had a referral from Ohio just this week where the person has an offense against a minor and then subsequent charges for stalking and other problems over the course of three or four or five years, we want to know what those arrests are. We don't want to sweep them into the carpet. Are these violent arrests, are these not violent arrests? Do these pertain to alcohol or drugs?

  Are they related to the arrest against that minor? Or are they completely separate? We don't want guesswork. This is a huge part of disabusing people of bias and prejudice. We don't want people to fill in the blanks. We want to fill in the blanks for the adjudicator. We don't want people to make assumptions about what may or may not be there. We want to, as the experts, whether it's the immigration defense lawyer or the forensic expert, to be able to provide to the adjudicator sufficient information so that they can make an informed decision absent of bias or prejudice. And that's, I guess the most important part of this particular factor.

 

Eric Cervone:    And what are the best practices for trying to prevent those biases? Because it seems like so much of it would be just on the part of the adjudicator, whether or not they're biased. What is it that you can do specifically to try to overcome that bias?

 

Mark S. Silver:  Well, in the subsequent part of the slides and certainly immigration lawyers can review it on their own, there are specific strategies in this kind of case, but in any kind of criminal mitigation case that you can utilize to help explain not only the person's conduct historically, but to explain safety issues now. And we can get into one or two of them now. For example, in many of these cases, the American citizen is petitioning for a wife who is right now in the United States. And they've often been living together for not months, but for many years together without any problem whatsoever and sometimes their stepchildren involved and they go to work and kids go to school and they're involved in the community. And it's because these criminal incidents happened often 15, 20, 25 years ago. They were not repeated. They happened in a particularly, a terrible point in the person's life where they were dealing with stresses on. And over the years, the person with this criminal history gains a great deal of stability and security in their lives.

  And they've developed these very healthy support systems and so on, including relationship with their wife and children or stepchildren and so on. And so one thing that needs to be explained to the USCIS is if they're really concerned about the safety of the beneficiary, that is, if they're really concerned about the safety of the alien wife, for whom the American citizen is petitioning for, then the best thing to do, if they're really concerned about her safety is to maintain that stability, is to maintain the security and the support system that that American system has enjoyed for 5, 10, 15, 20 years to have those supports in place with mental health supports and community supports and family supports and the same job every day and the same home where it's safe, and so on.

  That predictability, that certainty that that American citizen is enjoying and keeping him away from problems for such a long period, is exactly what we want in place. And that's a major strategy that needs to be explained to the USCIS officer through the Adam Walsh petition that sometimes they don't understand. In their view, removing that alien, the wife, for example, who's the beneficiary from the home, could promote safety. It's just the opposite. If this person's been living safely and in a healthy way for all these years, we want those support systems to remain in place.

 

Eric Cervone:    Yeah. I'm sorry to take you on off track. I had to ask that question though.

 

Mark S. Silver:  No problem.

 

Eric Cervone:    To get back to the factor, so we're on factor number three is mitigating circumstances. Let's talk about that one.

 

Mark S. Silver:  Yeah. So this is the nature of severity in mitigating circumstances of any arrests, convictions, history of alcohol abuse, other arrests against children, domestic violence, or anything else that may pose a risk to the safety of the beneficiary. In other words, this is mitigation in and of itself. I mean, we're talking about doing a mitigation case here, the word mitigation is actually coming up. The USCS wants to know anything and everything positive in this person's background. At the same time, they also want honesty to explain anything and everything that may be negative, right? They want a very complete picture. The inherent bias here is that is no excuse. The inherent bias is that there's always a risk, right? The inherent bias is that once a person has committed an offense against a minor female, they can't really be trusted.

  And clearly if there's a history also of alcohol or drug use within the home, or certainly, alcohol or drug arrests, it, in the view of the adjudicator, it just magnifies everything. And the way to battle this is to show that the person in fact has enjoyed a very healthy lifestyle, that the person goes to the same job every day for 20 years, and they're doing well in their job. They have letters of recommendation. And for the last 20 years, they've engaged with their extended and immediate family members in a very normal and healthy way. They have letters of support from them, that their hobbies and activities within the community are consistently good and praiseworthy. They're may be involved with the school and their church or whatnot. So we want to really reflect this person really has a very normal life. Now, clearly the more removed we are when evaluating these cases from the original crime and the more consistent this person's life history, the more we can show rehabilitation in and of itself, and the less bias and the less prejudice you're going to have that on the part of the adjudicators.

 

Eric Cervone:    And number four, we're going to talk about relationships with.

 

Mark S. Silver:  Right. So this is the relationship of the petitioner to the principal beneficiary any derivatives. In all the cases that I've done and all the cases I've consulted on, and there's a handful of each, it's an American man petitioning for his wife to get a Green Card. I think in two, it's an American man petitioning for his fiancee to get a Green Card. And in half the cases, that the alien woman has children, okay. Sometimes the children are not coming with her, and sometimes they're in the United States. It depends on the situation. So this factor looks at the beneficiary. It looks at the relationship of the American to the beneficiary. The inherent bias here is that this factor suggests that the beneficiary cannot protect herself. In other words, they're saying that the fact that this petitioner, this American citizen, 10, 15, 20, 25 years ago, committed an offense against a minor female, necessarily me means that this woman cannot protect herself. She doesn't know what she's getting herself into, and that she cannot protect her children.

  Clearly, as a result of this, we need to closely examine the relationship itself. And in fact, I just had, the case I was referred to last week, this case in Ohio, the American citizen, he's living here in Ohio and his wife is in Ghana, in Africa. And it's a problem because I want to interview these people in the same room, I really want to get at the heart of their relationship. How they know each other, how they met, how they fell in love, what attracted them to one another. I want to show that this woman is in this relationship, they've been together now for about three or four years. I want to show that they're in this relationship with their eyes open, that she's fully aware of what's going on. How long have they known the quality and scope of the relationship? That will really battle the bias of the idea that the beneficiary cannot protect herself?

  The cases I've seen, where the husband and wife are both together in the United States, they've been living together for many years are really very different than a case as I'm dealing now with this woman in Africa, because they're living with each other day in and day out. The wife is aware of this, of her husband's criminal history, and they lead a very normal life. He's rehabilitated, he's doing well. And that's what we get at. We get at the quality of the relationship with the beneficiary. Now, the second part of that is derivative. So for example, I saw another case actually in Ohio, just by coincidence, where the wife in the case also had a young child from a previous relationship when she met my client, the American citizen. So that young child is a derivative beneficiary. In other words, if his mother were to get a Green Card with a successful granting of the Adam Walsh Act petition, he too would be included in the case and would get a green card and be able to remain to the United States as a lawful permanent resident.

  But the second part of this really asks to what extent can the child protect himself or herself. And that's a little bit more tricky because it's not an adult. And in that case, we have to look holistically, again, at the family, look more broadly at the quality of the relationship between the mother and the child and so on. So it's really a very relational-based evaluation. I mean, we're looking at the client's history, criminal history. We're looking at quality of the home life and his rehabilitation and so on, but we're looking at the relationship. And I speak to the wives in these cases where the beneficiary is very openly, and we talked very openly about the criminal history and exactly what the husband did regarding the offense against the minor, whenever it was 5, 10, 20 years ago. It's a very difficult subject to talk about.

  And actually I had a case where it was very overwhelming. It was overwhelming for the American citizen and it was overwhelming for the wife. And they actually did not continue with the case. And to me, that's a good thing. Maybe she felt something that she was quite inherently uncomfortable with, that maybe she ended up severing the relationship and ending the relationship. Or maybe he felt he had something to hide and that's completely appropriate. Maybe that suggests that they should not be together. So the relationship itself is an extremely important factor in the Adam Walsh Act case and battling this bias that the beneficiary or the derivative beneficiary cannot protect herself.

 

Eric Cervone:    When you do have two people on different continents, how do you show the judge or the adjudicator that they are going into this with their eyes open? I feel like that would be such a difficult thing to prove when they're so far apart.

 

Mark S. Silver:  Right. So plan A is actually to interview everybody together. And I've done this. I mean, sometimes I fly to different parts of the United States to gather people together, but I've also flown outside of the United States where I had to see people together, because I just felt an audio visual wasn't enough. I have to say with the international COVID-19 pandemic, it's forced people to undertake evaluations by audiovisual. And they're more accepted now, but I have to tell you, nothing replaces a face to face evaluation. And in another course, I teach on criminal immigration, I had a very serious case. A husband, an American husband had married a woman from South America and they had a child together and the child was an American citizen, and she couldn't get back into the United States. And he loved his wife and he loved his child, which is completely understandable, and he wanted to live with them.

  So he moved to South America. The petition is a hardship petition, and he has to prove that he can't live without his wife, and he can't live in South Americas because it's too dangerous. And yet he is been living with her for four years. And I told the family, I said it would be very expensive, but I think what I really need to do is see this family in person. And by seeing them in person and working with them, and this is pre-COVID, I was able to derive a lot of information about the relationship and the quality of life in South America and how poor the quality of life was and why it was so important for them to come to the United States. I was also able to elicit from the wife, who's from Brazil, why she tried to enter the United States illegal.

  She was previously sexually abused as a child, and it explained why she previously tried to enter the United States illegally. And that, I don't think would have necessarily been able to have been elicited through an audio visual evaluation. Same is true here. And I've had this in Adam Walsh cases where the life is outside of the United States, it's very difficult. And it's made all the more difficult if that woman has children. And in the case, I'm working now with the woman in Africa, she has two children and I, as a general rule, I don't interview children through audio visual.

  I don't know if they're feeling safe, if they're going to be open and honest because adults are close to them. It's a very serious situation. And both of these children are as a result of a very traumatic background that this woman had in Africa. And so it's very serious. And one of the things I strongly suggested, can we meet somewhere else like in Canada, which is very close, and I've done that. I've actually met clients in Canada from the United States where a spouse has been from Europe or somewhere else. Because of course the flight to Canada's only about an hour away, but it's a very serious problem when you're trying to explain relationships and audio visual through Zoom and so on is okay, it's not great. It's not great.

 

Eric Cervone:    So the next factor, and again, it's interesting how all these factors do tie together. You can see this here. The next factor is the age and the gender of the beneficiary. Can we talk about? We kind of talked about that a little bit, but specifically, how does age and gender play a role?

 

Mark S. Silver:  Right. So in all the cases I've seen, and I would assume the vast majority of cases in the United States, the petitioner is an adult male who has had an offense against a minor who is petitioning for his wife or his female fiance to get a Green Card to either come to the United States or stay in the United States. So the beneficiary will almost always be female. Additionally, there may be beneficiaries, and those obviously children could be female and they tend to be young. So the inherent bias on this point is that young girls are always target of this petitioner, meaning that, even if the adult female who's been married, perhaps for many years to the American citizen really has her eyes open, a child cannot really know what's going on. They don't have sufficient understanding about context and the history, that undoubtedly many of these children have not been told about the criminal history of the stepfather for good reason. They need to be told in an appropriate age and in an appropriate manner.

  So there's a natural bias to err on the side of caution for the minor females, assuming that they really can't protect themselves. And sometimes there's this bias and this is also important that the mom may really be in love, hopefully she's in love with her husband. And as a result, she may be taking that relationship, which she loves so much with her husband as a priority over her responsibility to protect her child.

  Now, age is also a factor if the person is elderly. And I have seen two cases where an American citizen who is in his 60s or 70s is petitioning for his wife and she's also past the age of having children and she has no children. So in that case, derivative beneficiaries, meaning children, will not be a factor. I had another case where a woman was the beneficiary. She was a very successful surgical nurse in Philadelphia. She had been living here for many years under her own visa actually. And she had three adult children. The youngest I think was in their early twenties and then high twenties or early thirties. And they were living in the Far East and they had no plans to come to the United States. They were married, they were there.

  So, although these were children of the beneficiary, these were adults, they had their eyes open. They were very much aware of what was going on. And so age, in fact, age and gender in that case really only pertained to the wife herself. But it can be a serious factor. It's, again, this idea, this bias that this perpetrator against a female minor in this crime 5, 10, 20 years ago is always going to be a perpetrator and that children, or if this young couple, if they're younger, want to have children or plan to have children will necessarily be in a situation where the children who come into this marriage will be vulnerable.

 

Eric Cervone:    Right. And that plays into the next factor, which is whether the petition or beneficiary will be in the same household or at least living in proximity to one another.

 

Mark S. Silver:  Exactly. And you can have a mixed situation. In this case, I was just talking about this very successful surgical nurse near Philadelphia. The petitioner, the American citizen, he had two children from a previous marriage and they were living in New Jersey, not so far away. And I saw the children. I interviewed them to include them and I saw two extremely healthy, happy, well adjusted children. They had a very appropriate emotional bond with their father, physical attachments and so on, involved in healthy activities and so on. Unfortunately, the children's biological mother would not write a letter of support or become involved, which was a point of concern.

  But the proximity, the fact that they live within a short drive was something that made me want to interview them and know what was going on versus the beneficiaries children who I just said were in their twenties and maybe early thirties, living in the far east, very far away, not planning to come to the United States. Clearly, household's very important. If the children are living within the household, then I really want to interview the children and say hello to them. See what's going on and so on.

  And by the same token, you want to look at the actual house, I do home visits for these cases whenever possible. I go in, and the last case I did was in Ohio, but I wanted to see, what's the quality of life like. And they had a very normal middle class home. This guy had a job for many years and he was a gardener and they were involved in all sorts of fun stuff. They're barbecuing and I got to see the home at just a very normal neighborhood, very safe, and it's important, therefore, to understand, not just proximity in terms of physical distance and so on, but proximity in an immediate sense in terms of household makeup, quality of life in the home and so on.

 

Eric Cervone:    And the next factor is rehabilitation. And this is something that's, rehabilitation just in criminal justice in general is so controversial. How much is rehabilitation possible? How effective is it? So I'm sure it's the same thing here.

 

Mark S. Silver:  Yes, it's absolutely crucial. The inherent bias in this factor is that rehabilitation is not really effective. That once you're an offender against a minor in a sex crime, you are always suspect and you're never really rehabilitated. You always have it in the back of your mind as the offender, you may do it again and so on. That's the bias. The second bias, and this is also very important as part of the factor is that the passage of time does nothing to alleviate sexually deviant impulse or obsessional thoughts or feelings or behaviors. In other words, the fact that you were caught 20 years ago and you have not committed another crime, and perhaps you truly have not even engaged in this for 20 years. It's not that you haven't committed, but you have not had any behaviors of this client that nonetheless the passage of time has not done anything to cure you of this.

  That's the inherent bias. And that's the actual factor. I mean, I'll read it to you, the degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between the incidents of violent criminal abusive behaviors in the submission of the petition. Rehabilitation and passage of time, rehabilitation and passage of time. And the adjudicators look at this and say, get real. 5, 10 years have passed. You're not rehabilitated, you're hiding it. You have this in the back of your mind. And your wife and the children that may be coming into your home and may be coming into part of your life, these are clearly potential victims. The way to battle this again, is looking very holistically at and empirically at the quality of relationships and what's going on in the home and how well these people know each other and so on.

  We need to include any and all therapeutic interventions at any point, which in any way may have reduced the risk posed to the beneficiary. It shouldn't just be anecdotal evidence. If possible, concrete documentation for mental health professionals or programs could be submitted as evidence. The passage of time issue is very harmful. It's a very harmful idea, but it can be quite if the crime obviously occurred a long time ago. It's sometimes crucial. And sometimes, just the fact that you have not had any bad behavior is in itself proof of rehabilitation. Sometimes just living a healthy and normal life in community, a healthy and normal life with family members and within the home is proof of rehabilitation. Clearly, if this crime occurred just a year or so before this petition is going forward, it's a very, very real problem.

  One of the paradoxical advantage, however, of crimes committed relatively recently is that the person has probably been through the court ordered to attend therapeutic programs and AA, perhaps if that was involved or support groups and so on. And there's probably much better documentation in the last 2, 3, 4, 5 years for someone who's committed a relatively recent crime, versus someone who's committed a crime 20, 25 years ago, where there may be no documentation. And I had a case where the person committed just this one crime a long time ago. It sounds good. The problem is there was no available records from the mental health clinic or other supports that he followed up on for the 5, 6, 7, 8 years after this happened. So there are advantages and disadvantages with both and they both need to be investigated.

 

Eric Cervone:    Before we move on to mitigation strategies, is there anything you want to say to wrap up these factors?

 

Mark S. Silver:  It needs to be understood that the adjudicator who's looking at this case has biases and prejudices, but they also have something else. They don't really care about the client. This is something you see in the criminal defense world also. The prosecutor does not care about the criminal defendant, even though they should, and their inherent biases that we have against them. And it's important to understand that with each factor, what the bias is, in order to be able to gain a very broad psychosocial background with information to counter those biases. Because without that, as I said earlier, the adjudicator is going to keep in the back of their mind, these assumptions, some of which may be terribly false and misleading, but which necessarily will lead to the person not granting the case.

 

Eric Cervone:     So let's move on to mitigation strategies and you start this section with the heading unity is safety. Can you explain what that means?

 

Mark S. Silver:  Right. It's the idea that as I mentioned before, someone who's committed a crime 20 years ago, especially if they haven't repeated the crime and they don't have unsafe, unhealthy habits, such as drugs or alcohol, they're working the same place every day, predictability and certainty in these kinds of situations is extremely therapeutic in and of itself. And if we really want to keep the beneficiary and the derivatives safe and healthy, that's where we want them. We want them in a situation with the American citizen, where everybody is living a safe and healthy normal life and where family supports are in place and so on. Having the person who is previously committed of this crime go to a place that is unfamiliar, go to a place where support systems are not in place, go to a place where he may not have familiarity with the geography or culture, or even language of the area, and where protective factors for the potential victim are also not in place. I mean, that's not helping anybody.

  If you're really concerned about the beneficiary, you want them to remain in a place where the American citizen has thrived in terms of their personal health and mental health and personal development and so on. And so there's unity and safety in that sense.

 

Eric Cervone:    And you say there's 10 Rs of mitigation, and bring me back to law school with all these, the 10 Rs and... So, explain to me what are these 10 Rs.

 

Mark S. Silver:  In regular mitigation cases for criminal lawyers, this is what I look at. I actually look at these slides to have an outline, and it's again, to try to get at the biases and assumptions of the adjudicators in these cases. The first are, and I'll just go through them very, very quickly. Reality. And that is looking at a full narrative. There are a lot of biases and all sorts of things. What's going on in your mind when you see a case with there's been a sex crime against a minor. Well, you just, your mind goes nuts because it's such a terrible thing. You want to know really what occurred in a very empirical way. As I said, I had these cases where men were digitally communicating, with individuals who they thought were minor females, in fact, they were undercover cops.

  These men never had any physical or sexual contact whatsoever with minor females. Were they doing something good? No, they shouldn't be doing, we shouldn't condone it, but it's far different. It's a far different reality, far different narrative than a direct sex abuse case. The next is mens rea, I think I spelled it right there. It's not intent like we learn in law school. It's more broadly volition. We want to know what was going on with this person when he committed this crime 5, 10, 20 years ago. Were there major stressors, not just intent in terms of direct, what led to the direct sexual abuse against the minor, but really what was going on in this person's mind in a much more broad way that helps us inform the person's decision making and judgment and so on. Recency, we saw this in the factors. When did it occur, how recent it was.

  Repetitive. Is this something that happened once? Is that something that happened multiple times in different contexts with the same people. Rank, the next R? How serious is it, right? In law, we learn about robbery. First degree, second degree, third degree, and so on. Is this something that's a first-degree kind of issue, is something that's much less serious. Restorative, has the client righted the wrong in some fashion? The next R, rehabilitation. We spoke about, has the client changed? Will the client changed? Maybe this client is just fundamentally different. Now, I see a lot of cases, for example, where the client committed a crime at age 19, 20, 21. And now the client's 40 years old, the client has literally lived a second equal part of their life and time. And the person is just a different person. They're doing different things they think differently and so on. The next R is remorse and regret.

  Does the client really understand and accept his actions? And I will be honest, I've seen one or two consults where I did not think the person really understood their actions as wrongful. And that was really a red flag that perhaps we should not continue. Role, again, double role, not just the client's role within the crime, which is very important and their relationship to the victim and the relationship to their family members now, but their broader role within the community, unity.

  I mean, are there things that this person does within the community that really suggests their lifestyle now and last R, and this is really for criminal defense lawyers, but recommendations. What can be fixed, who could be helped. But again, the major R in this case, the recommendation as the last R is, as we had before unity. The major recommendation is if this client has been living with his wife who he's petitioning for, for the last four or 5, 6, 7 years, and everything has been fine every single day, and they have a healthy, wonderful relationship, and there's no problems, well, let's keep that in a consistent, predictable, safe environment. That would be the best R for that situation.

 

Eric Cervone:    And you have a note here specifically on remorse and rehabilitation. Are those especially important Rs? Is that why you have a note here specifically on that?

 

Mark S. Silver:  Yeah, and it, yes, because you really want to look very holistically at rehabilitation, remorse and regret, because it can happen for different people in different ways. And recognition can happen for different people in different ways. It's quite complicated. Some people commit crimes when they're really out of it. And by that, I mean, for example, they may have been at a point in their life where they're abusing drugs or alcohol. And I do a lot of spousal abuse cases and there's a number of cases I see where the abuse occurs every Friday night and Saturday where the husband comes home after a long week. He's cashed his check and he uses his check to buy drugs and alcohol. And by Saturday evening, Sunday morning, he barely remembers what happened or he may even have experienced blackouts. And so sometimes people really don't remember. So, and it happened at such a distant point. So you want remorse, regret, and rehabilitation to be understood very subjectively from the perspective of the individual, not just objectively.

 

Eric Cervone:    And then you talk about strategic thinking and all of these lapses in judgment that can occur. Can we get into that?

 

Mark S. Silver:  Right. I use this, again, these are exactly strategies in ways of thinking I use for criminal mitigation cases in relatively minor crimes. And I've done rape, murder, all sorts of gun possession, all sorts of crimes. The first thing I think of is this aberrate. In other words, do we have a client who's committed this crime against a female 5, 10, or 20 years ago, but it, in no way reflects who they are. It was just an aberrate, stupid thing that they did at that one moment. Is it misguided? Were they guided to do this because of something that was going on in their life, that again does not reflect really their general decision making and behavior. Was it an error in judgment? And this happens. I saw a case very recently where an individual was with someone who was underage, but she was in fact even much more underage.

  He thought she was at 16, which also is obviously not an excuse, but she in fact turned out to be, I think 13 or 14. It was a stupid error in judgment. He should not have been there, to begin with, but clearly, it did not reflect a person who was trying to have a physical or sexual relationship with a 13 or 14-year-old. Is it just foolish conduct that happened at some point? Is it something that just happened in an unthinking moment? This is very important, because we want to, if at all possible, show that there's no animus. It's more difficult because of the nature of these kinds of cases. But in general, in criminal mitigation, you want to show that the person is not evil, that the person has no real ill will towards society. That they've just shown bad judgment or aberrate decisions as they have, but that they've lived in many other ways as a very good community member and family member and so on.

  And the last strategic thinking issue is life stressors. I've mentioned this before, but it's crucial. Did this crime occur where there were major life stressors in this person's life or more importantly, cumulative life stresses, maybe 2, 3, 4 life stressors. A parent died, there's severe financial problems, the living situation's very difficult, there be employment challenges, and so on and so forth. It's not just one problem, but 3, 4, 5 different problems come together in a period of months or years. And that cumulatively, these stressors, unfortunately, prohibit the person from having sound reasoning or good judgment or sound decision making and so on. And as a result, they get involved and commit this crime against a minor. Again, we're not trying to excuse a person's behavior. We're trying to contextualize it and explain and humanize the person.

  The book I have, which has a chapter on this, the Adam Walsh Act case, which I have at the beginning of the slides, the book has as a subtitle, Humanizing the Client Towards a Better Legal Outcome. The evaluators don't care about the client and you need to humanize the client and explain their thinking and who they are, and really that they've engaged in something that they're deeply regretful about, but it happened in a particular context and taking the guesswork out of that is important. So these are some of the major strategic thinking issues.

 

Eric Cervone:    And we've already talked so much about bias. One of the other biases that you talk about here is psychopathology bias. Can we get into that and what that means?

 

Mark S. Silver:  Right? So the assumption is there's something terribly wrong with the person if they've committed this crime. And the answer is there may have been something terribly wrong with the person when they committed the crime. It doesn't mean there's something terribly wrong with the person now. Mental health issues come and go just like medical issues come and go. And it could be helpful in some cases to actually say, what's not wrong with the person. The person does not have any history of psychosis. That means they've never been out of touch with reality, they don't hallucinate, they don't have delusions and so on. The person has never had any major interpersonal problems. The person perhaps has never abused drugs or alcohol. In other words, there's no other red flags within this person's larger mental health history that would suggest that this person is a danger.

  And so too, if this person has benefited from ongoing interventions like therapy or drugs to help them remain stable, to ensure that mental health issues don't arise or stay at a very low level, that should also be included, and all sorts of other things, including the person's history of personality disorders or impulsivity, addictive conduct and so on and so forth. It's helpful, again, not to allow people to think, well, in the report, they didn't talk about this person's interest in drugs, or alcohol. This is the kind of person I normally associated with you abusing drugs or alcohol. Don't allow that person to guess, explicate these issues.

 

Eric Cervone:    And we've talked a little bit about this no risk standard, which does seem to be kind of irrational to say that there has to be no risk. I mean, I got into a bar fight in college. I can't say that I'm no risk to society. Okay, let's talk a little bit about this no risk standard and what it really means.

 

Mark S. Silver:  The no-risk standard is exceptionally high. Immigration, in general, has extremely high standards. Deportation standard is exceptionally an unusual hardship when you're proving hardship case. It's almost impossible to prove. And the answer is there is no such thing as no risk. It's impossible to predict the future. Yogi Berra once said, "I never make predictions, particularly about the future." But you can infer a fantastic amount about how the person will behave tomorrow and a year from now from a history of good conduct. A person who's worked in the same job for 10 years and has a stable relationship for 10 years and has not had any trouble with their family for 10 years and has not had any subsequent convictions and has never abused drugs or alcohol, and so on and so forth, tells you a very, very great deal, and it's the best way to tackle the no-risk standard.

  I have seen cases where basically the evidence shows extremely low risk or almost no risk, and then the adjudicator will come back and say, well, I think there's still some risk. So it really is extremely a serious problem. I have no problem saying that there's no risk. Psychologists generally when they do evaluations are unable to say that. They can say very, very low risk, and it's a huge issue to overcome.

 

Eric Cervone:    And you say that there are two types of evaluations to show that there's no risk. What are those evaluations?

 

Mark S. Silver:  So some of these cases can be bifurcated and some lawyers are probably not aware of this. It basically means that, and I had a case like this many years ago, it was a sex case on an airplane. And the lawyer suggested we have one... The lawyer suggested I do the criminal mitigation cases I always do, explain about person's psychosocial history, mental health history, relationships, and so on. And then he had another expert use an objective measure, meaning a paper and pencil test you give to the person, a research tool to use to evaluate risk. And basically, these two tools, my evaluation, and the objective measure should complement and balance one another.

  It's a way to make the adjudicator who's having to review this case, which is quite difficult to feel more comfortable that two experts have reviewed the case in two very different ways, one from an objective measure, looking at the person's behavior and risk factors and impulsivity in their thinking and so on and so forth. And another expert looking at the person's psychosocial history, mental health, community involvement, family relationships, and so on. And hopefully those two together will provide a much more compelling picture.

 

Eric Cervone:    And we have a few minutes left. I want to talk a little bit about obstacles. Let's talk about USCIS, and what their goal is, punishment versus adjudication. Talk to me about that.

 

Mark S. Silver:  Right. There's no question then, in some of these cases, the adjudicator is trying to be a judge, meaning they're trying to retry the petitioner 5, 10, 20 years later, saying I'm going to punish you for what you did. That's not their job. And that needs to be clear. The person has already been punished and sometimes I say this very clearly in reports, the person has already been terribly punished by their crime. They've lost family, they've lost their jobs, they've lost so much. They had to rebuild their lives. This is not an opportunity to re-punish this person. This is an opportunity to evaluate a case, to consider the risk to the beneficiary. That's what the case is about. And that needs to be clarified in the evaluation for the adjudicator.

 

Eric Cervone:    And you talk about even embarrassment. There's so much embarrassment associated with this.

 

Mark S. Silver:  Right. I mean, a lot of clients are just horribly embarrassed by what happened, as you can imagine. They're humiliated. They may have not have talked with family members. Some clients don't want to participate in these evaluations and they don't go through with them because they don't want to revisit very negative memories. In some cases, the wives are aware of what happened, but not fully. They're not aware of the full range of details because they're so horrible. In some of these cases, the clients become very uncooperative and argumentative and they may pull away. Sometimes the embarrassment actually leads to an opening up of a very honest discussion of what happened. Because again, if in many of these cases, the crimes happened a long time ago and the client has moved away from it, not just in terms of temporally, not just in terms of time, they've moved away psychologically and emotionally. They're a very different person and they may not have talked about it for many years.

  And these Adam Walsh Act evaluations trigger extremely painful memories, which is appropriate. It should be a painful memory for what this adult did to a minor child. But it's important to understand it clinically so that we can work with the client so that they're sufficiently comfortable, they feel enough trust that they're to continue in the evaluation in such a way that we can elicit information to adequately understand their history and how to help and advocate for them.

 

Eric Cervone:    Well, Mark Silver, I could talk about this all day. This is fascinating important work. Thank you so much for your time. We are out of time. For all of you watching. Thank you for tuning in to Quimbee CLE. Sorry mark. Go ahead.

 

Mark S. Silver:  Yeah. The only thing I would say is if any immigration defense lawyers are interested, please don't hesitate to email me. And I can point out the chapter of the book where it's found as an outline that covers really, almost all the material we talked about today.

 

Eric Cervone:    Excellent. And all of Mark's contact information is in your documents, in your files. You can download from Quimbee. Thank you for tuning to Quimbee CLE. Go to quimbee.com for all of your legal education needs. If you know someone's studying for the bar exam, if you know someone in law school, if you just want to brush up on a particular legal topic, we have all of that at quimbee.com. Thank you all so much for your time. Bye-bye.

 

Mark S. Silver:  Thank you. Bye-bye.

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