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Extreme Hardship Criteria in Waiver and Cancellation of Removal Cases: Clinical Strategies and Challenges for Immigration Lawyers

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Extreme Hardship Criteria in Waiver and Cancellation of Removal Cases: Clinical Strategies and Challenges for Immigration Lawyers

In this seminar, forensic expert Mark Silver provides the immigration lawyer with a detailed analysis of criteria considered by clinical experts when undertaking a psychosocial evaluation in extreme hardship cases for waivers and cancellation of removal cases. Here, Mr. Silver integrates important legal considerations with the psychosocial criteria offering new and different insights to better advocate for the clients and their family members. He also reviews the different challenges that have an impact on extreme hardship considerations. Additionally, he addresses how to best present these issues to help your client.


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


Mark Silver:  Good morning. My name is Mark Silver. I am a forensic social worker and lawyer working in New York City. I have done consultation and forensic evaluations for lawyers. Since 2002, I've undertaken about 2,000 cases at this point. And my specialty is really for criminal and immigration lawyers, specifically looking at hardship and family issues, and also mental health issues for individuals within the context of cancellation of removal cases and 601 waiver cases. The topic today is called Extreme Hardship Criteria in Waiver and Cancellation of Removal Cases. The subtitle is Clinical Strategies and Challenges for Immigration Lawyers. What I'd like to look at today are not just the extreme hardship criteria in waiver and cancellation cases, but specifically how I as a forensic expert understand these criteria, and how the clinical challenges can help inform the lawyer's case to advocate in a more complete and a more holistic way to understand the client better and much more importantly, advocate for the client in a much more complete way.

   So the hope here then is to integrate theory and practice. And I really encourage anybody that wants to see a sample to just email me, put in the subject line hardship sample one. Please put your name as a attorney, your full address, phone number and everything. I promise I'm not going to mail you back spam or anything, quite the opposite. I get a lot of spam. I just want to make sure it's a bonafide lawyer, and I'll be more than happy to send you a redacted copy of a waiver or cancellation removal case so we can literally integrate theory with practice, that is to integrate from the slides that we're going to be looking at, the criteria of hardships and the challenges in doing these evaluations, with what a real forensic evaluation can actually look like that could be submitted either in immigration court or to the USCIS. Everything we're going to be talking about today is covered in a brand new edition of my book. It's the seventh edition, came out 2021, just this year. It's called Handbook of Mitigation in Criminal and Immigration Forensics. And the subtitle is Humanizing the Client Towards Better Legal Outcome.

   And indeed the goal here is to humanize the client, because so many of these clients are demonized because they've entered the United States illegally or through fraud and misrepresentation. Many of our clients of course have felonies, or they've come into the United States without proper documentation or without inspection. We want to humanize them. We want to get at the humanity and the individual's needs, the family issues at a humanistic level to understand the client, and therefore allow the client for a better legal outcome in the sense that we want to advocate for the client as I noted earlier, in a more complete and a more professional manner. The kinds of cases that I do for immigration defense lawyers are pretty wide ranging, but I'll just go over them very quickly. Certainly I've done hundreds of VAWA cases. Those are spousal abuse cases including the I-751s, deportation and removal cases, the criteria for hardship which we will be talking about today, waiver cases, the 601s of course, including 601A provisional waiver. I've done many asylum, one year bar issues over the years. And by the way I've given CLEs on all these topics, and you can certainly look at those CLEs for more detail and specifics for those issues.

   U visas of course, detention cases, those are individuals of course who are being detained by ICE in different parts of the United States, often because they have criminal issues. Bond hearings, these are for individuals who are trying to establish bond with the immigration lawyer, and a forensic report can help explain that they are not a flight risk, that they should be in the community because of hardship issues and so on. Adam Walsh Act cases which many are familiar with, motions to reopen appeals, and of course, criminal mitigation which is another separate CLE, which concerns understanding not just the hardship issues in a particular case, but understanding and mitigating the client's crimes or CIMTs, fraud, misrepresentation and so on. So the purpose and goal here is to get a excellent overview of the extreme hardship criteria from a clinical forensic perspective to understand the challenges that I face, and that any immigration defense lawyer faces in these kinds of petitions, and also to know and anticipate the factors of what a denial may look like, why they occur. It's extremely important to understand and this is what I consider at every case, why am I writing this report? Why am I giving this evaluation? Who is the target audience?

   For example, am I doing this case simply because we need a hardship evaluation, or is it that we need a hardship evaluation, but also the client has entered the United States through misrepresentation, and that could be a serious issue and I need to mitigate that. So really they're two separate issues that need to be considered. I certainly consider the standard. In other words is it a standard of extreme hardship, or is it the extreme and exceptional unusual hardship standard, which is one of the highest in all of jurisprudence. Standards are extremely important in immigration work for forensics, especially for cases such as the Adam Walsh Act because of the no risk standard there. I want to know the audience. Am I writing my report for an immigration judge for USCIS, or is it possible that it's really being written for the TA? Sometimes the judge may be inclined to grant a case, but it's the TA who has reservations about the case for one reason or another. Many of these cases unfortunately, the legal standard is counterintuitive. My favorite example is I see a lot of clients who've had sexual identity issues in their country of origin.

   They come to the United States because they've suffered human rights violations or persecution, and they suffered because of their sexual identity in their country of origin. And yet because of that suffering, in the United States they can get a green card and they can petition for asylum and stay in the United States. It's very counterintuitive, and many times the law's applied inconsistently, especially from jurisdiction to jurisdiction. There could be confusion on the part of the respondents and frankly, there can be confusion even on my part sometimes understanding why a case has been denied, why an RFE has come up and so on when a lawyer calls me to undertake a clinical evaluation either for an individual or for a family as a whole. My goal really is to interweave the facts of the case with clinical issues. In other words, I'm not just providing a forensic evaluation for the lawyer so that they could have more information, I'm providing a forensic evaluation so that there is a underpinning to the legal argument being presented by the immigration defense lawyer.

   The hope is that my work will compliment and balance the lawyer's work so the lawyer can be a better lawyer. And this is what I felt when I was in law school. I felt that at times when I was reading case law, that I didn't have enough understanding about the facts of the case. And I would've liked to have had an expert opinion, whether it's mental health or whatever the situation or context was of the facts, to help me gain a better understanding about the plaintiff and defense positions. Another extremely important issue is to disabuse parties of bias, prejudices and so on. We don't want to leave the other side guessing or to fill in gaps or make assumptions. And this is very common in extreme hardship cases because the adjudicator may think well, this looks like a middle class family. The hardships don't seem to be extraordinary, or what we see is something that we see every day. And so to the contrary, we want to be able through the forensic report to explain in detail the mental health and family, community, safety, health, medical, and a wide range of other issues so that in fact the case is humanized, so that in fact this particular individual or this particular family is seen as a particular individual or family so that in reality, the adjudicator will be able to empathize and sympathize with their situation.

   What I want to do now is really jump into the hardship criteria, which really serve as the focus of this CLE program. First, criteria which I think is super important is parental history of hardship. This concerns not the qualifying children for example in a deportation case, but the parents themselves. Now the parents are not qualifying family members, but I look at them as prologue regarding their experiences in their country of origin for quality of life issues for the children. I'll give you a great example. I had a case where a client had asthma and his children both had asthma, and his mom had asthma in India, it was a familial history. I saw the family and the children were doing well, they were on various medications including nebulizer. Then I went to court about six months later and I saw the family, and the dad told me that his mom in India had died of asthma. And I said, "Oh, I'm sorry to hear that. What had happened?" He said there was no electricity.

   And what he meant was that there are rolling power outages in a great portion of India for various reasons. She was using a nebulizer in which medication is placed into this machine. It comes out as vapor, but you need electricity to run the machine. And the power outage was going for many days, she couldn't use the nebulizer, therefore she didn't have medication and she died due to respiratory failure. Well, this was extremely important information about this client's country of origin hardships, even though he and obviously in mom in India is not a qualifying family member, because it shows a direct connection between what these children experience now in the United States which is great quality of healthcare, versus going to some agrarian village where their grandparents lived in India where electricity is often not available and therefore they can't use the nebulizer, and therefore they can't take their medication. So looking at parental and even generational hardships in the country of origin for non-qualifying family members can be extremely helpful, and especially in cases regarding healthcare and medical issues.

   The next issue is loco parentis. This is extremely important. I put this in almost every report, I just love it. I don't know why more people don't use it. It basically says that we have a lot of clients who come to the United States as first generation immigrants. They're working hard, they have children, they're good community members, and they're going to be great community members in the future. However, many of these clients especially from Central and South America are really quite uneducated. And as a result even though they love their children, they care for their children and so on, they don't understand their children's social, academic and healthcare needs. And they also cannot assess and they cannot advocate for their children. I see this almost every week. So for example I'll see kids come in with very low grades, and I'll ask the parents what's going on. And the parents basically shrug because they just don't understand. They themselves are very uneducated, and they've often come from countries where there's poverty and they had to quit school at a young age to support their own parents. So what happens? These children are in the United States and the social service system, the healthcare system and the educational system act in lieu of the parents. They assess the client, the children, they evaluate the children, they intervene and so on.

   And it's really, really important that the adjudicator understand this, that the social service healthcare educational system step in for these parents in a way that the parents cannot do on their own. And if they're forced to go back to whatever country where these parents had originated from, clearly they're going to be able to advocate for their children even less because their children won't be in bilingual schools, the parents are going to have to work even harder in order to survive. This is a crucial element that is missing from I think most evaluations, and I always consider it for first generation immigrants. The next issue is separation hardship, this is gigantic. It basically means that in many cases there's going to be inevitable and perhaps permanent separation of family members if a family member is forced to leave or deported from the United States. This is true in several kinds of cases, I'll just give you one or two examples. First, children of varied ages. You have a family with three kids and the kids are two years old, eight years old and 18 years old. The 18 year old is in the United States.

   The kids are all American, and the 18 year old says look, I don't want my mom or dad or both to be deported, but I'm going to college next year. I want to stay in the United States, I want to make something of myself. Maybe I can stay with an aunt or uncle, or maybe I can get a very cheap studio. I don't want to go back to a country where I'm not going to be able to go to school and I don't know the language, and my life is going to be ruined. And what happens is that if that child stays here as an American citizen which he's obviously entitled to do, then the parents would go back to their country, obviously with the children who are minors, because the young children cannot care for themselves, and it's going to lead to the separation of family members. It's going to lead to the separation of not only parent and child, it's going to lead to the separation of sibling and sibling. And I see this all the time. I particularly see this with older children who have DACA. They're in the United States, they may be teenagers or even young adults with DACA, and they want to stay here with DACA so that they can work or attend college and so on. I also see this a lot with intergenerational care.

   There's this general unconcern of geriatrics, but many of my clients live in intergenerational homes with grandparents or even extended family members including cousins, aunts, uncles and so on, and sometimes these uncles and aunts act as surrogate, maternal or paternal caretakers. And if they're forced to leave, they would be forced to leave these individuals who are sometimes even more important than their own immediate family members. You should be aware that in the United States now, about half of all children live in blended families. That means that half of all children live with step siblings or half siblings or stepparents and so on and so forth. And in many of these cases where deportation is an issue, or someone has to leave because of a 601 waiver, it's going to mean again, the separation of family members. This also impacts something extremely important, which is the quality of maternal paternal care if an individual's alone. I see this all the time. A woman is petitioning for her husband to remain in the United States and she says look, it's not just that I need him here as a wife and I love him and so on, but that if he goes back to his country, the quality of maternal care that I can provide for my children will be terribly diminished or undermined in one way or another.

   The last issue in separation hardship, which is really crucial and it's usually missed, is that even if the family returned to the country of origin as one unit, it doesn't mean they're going to be living as one unit. I see this very often with clients that have come from rural or agrarian towns or small villages, which quite frankly is the large majority of my cases. Why? Because if you go back to a rural or agrarian town there may not be appropriate schools, there may not be jobs available, there may be safety issues and so on and so forth. So even if the family go back together and I've seen this quite a few times, the mom leaves the agrarian town to go to a major city so she can get a job doing house cleaning or domestic work or so on. Or the dad leaves the town because he thinks he can get work on a construction site for example, in a larger town where there may be more jobs. Or I've seen cases where the parents stay in the farming town, and one or more children have to leave because they don't have appropriate schools there. So the fact that people are going back to the parents' country of origin doesn't mean they're going to be living under the same roof. The next major hardship issue is medical. This is an extremely serious problem because hardship medical issues includes everything.

   It's not really medical, it's healthcare. So it includes all major and minor medical issues but also healthcare issues and supports, assessments and interventions, and that includes occupational therapists, physical therapy, speech therapy, chiropractors, and so on. Why I say this is because sometimes we focus on just what a physician is saying, but physicians provide a relatively narrow support system in the healthcare field. There are a lot of other healthcare experts especially in mental health of course, where you have psychologists and nurses and social workers and licensed family therapists, and so on and so forth. So you want all diagnoses small, large and so on. You want symptoms, not just saying the kid has breathing problems because he has asthma, but you want to say in more detail that there's wheezing, phlegm production, shortness of breath, hacking, and so on and so forth. phlegm production, shortness of breath, hacking, and so on and so forth. You also want to put the history. Is this problem five months old or is it five years old? How serious is it? How serious does it get? Does he have to have just medication to maintain him, or does this child for example, go to the emergency room every three months either because something is acute, or because there's a real risk to the child's life, or for some other reason?

   You want to look at recommendations, that is best medical recommendations, and also prognosis. What is the best guess about this child if forced to return to let's say, a agrarian town in Mexico where there is no hospital, no major clinics, medications may be fake. Many clients I see don't have families with cars in their country of origin, or they only have mopeds or they use buses in part because cars are expensive, but actually gas and diesel is very expensive. So understanding medical issues is not just saying someone has asthma. You want to look very, very detailed. There's another part to the healthcare hardship that I want to explain, and that is sometimes they're non-documented healthcare issues. One of the biggest issues excuse the pun, in the United States is obesity. Obesity is rampant here. It's sometimes not noted in medical histories, even though obesity carries a huge risk for cardiac pulmonary disease, diabetes and so on. So the fact that something isn't documented doesn't bother me, I want it to be documented. I'll document it if the client tells it to me. I will then tell the client to return to their physician or specialist or primary care physician or whoever, so that they can document it as well. But look out for things that have not been documented, but should be documented. This is particularly true for children.

   Children that are not doing well in school for example, may have healthcare issues that impact the quality of their ability to undertake their academic studies and so on that are not documented. This also includes physical issues. In other words, let's say someone has a back injury. Well, the back injury may have occurred 10 years ago, but there is daily impact on the person's life. They may have limitations with carrying, walking, going up steps, limitations with cooking, cleaning, caring for children, even hygiene needs, and perhaps they depend on their significant other husband or whoever for those supports. I'm also very interested in country of origin healthcare issues. I see a lot of clients for example, that have children who visit their parents in their country of origin, and these kids get sick because of disease carrying insects and polluted water and pathogens, bacteria, viruses and so on, and the kids develop all sorts of symptoms including flu-like and gastrointestinal problems and so on. And I want to know how they're doing. I also want to know about their healthcare here. Almost all children have healthcare here versus going to the parents' country of origin where such healthcare supports and so on may just be completely unavailable or inaccessible.

   I also like asking about the actual parents. I mentioned this earlier. I'll say to a client, how's your mom and dad doing? They say oh, I don't know. I say well, does your mom or dad have any medical or physical problems? And they'll be very vague. And the reason they're vague is because the mom and dad in the country of origin are not regularly seeing doctors, so they themselves are unaware of their medical issues. And it really reflects something fundamental about how the client's children will be really unfortunately at risk of harm because they themselves aren't going to get what they need. And there are many other issues related to this as well, including young children. For example, in pediatrics there's something called well visits for very young children where they go at a regular basis, particularly to check on early developmental progress in terms of weight and height, movement, speech, interaction, and so on. And those things could also be at risk. The next major issue is education. This is a huge issue. You want to know everything about the children, and I want to start with the positives.

   In other words, some children I see are doing extraordinarily well in school. They're in charter programs, they're in gifted and talented programs and so on. And it's important to understand that their progress may be based on supports within the school, peers and classmates who support them, who guide them towards better academics and inspire them and so on. So we're not just looking at children's problems, we're also looking at positive things because it may provide the children very positive self-esteem. And doing well in school, being an honor student may serve as a core part of their identity, for which they may be very proud. In terms of educational problems, they're huge. Learning disabilities can be generalized. They can include math, reading, comprehension and so on. I've seen clearly clients with all sorts of problems in dyslexia, there could be clear intellectual disabilities. Clients may need special education programs or supports. They may need remedial tutorial assistance. Some of these clients are really being supported also by outside programs such as private tutorial programs within the community. Some clients just are getting along because they get extra help after school.

   We want to know what the client's issues are. A very detailed way to find this out is through an IEP. IEPs are individualized education plans. They're mandated by the Individuals with Disabilities Education Act, and it requires public schools to develop an IEP for every student with a disability who is found to meet the federal and state requirements for special education. Now many clients who are not doing well in school, there will be excuses. The client will say I'm tired, the parents will say the child seems perhaps sad or anxious. We don't know what's going on. Now, are there mental health issues that I want to consider? Of course, and that's why I'm doing the evaluation. But a child who is consistently having problems in school, and certainly if the child is failing a class or is doing especially below average for either other family members or classmates and peers, they should have an IEP. The problem is many boards of education and classes don't want to do them because the family's not paying for them, the Board of Education is paying for the IEP.

   But IEPs are fantastic because they look very broadly at developmental issues. It's undertaken completely objectively by a third party. It's not like I'm saying that a child has any developmental issues, and it looks at everything. And this is why I said we have to look broadly at healthcare previously. It looks not just at the child within the classroom, it looks at the child's speech. It looks at whether the child could benefit from OT or PT. It looks at the child's social interaction, attention, focus, and so on and so forth. So the IEP in the end, even though you may be concerned about a child's ability to read, may in fact come up with two or three different issues within the evaluation by specialists that indicate a wide range of other needs as well. And that's really great, because it means that the child needs support. And very often these children are clearly not going to get comparable support in their parents' country of origin for all sorts of reasons, including resources may not be available, it may be very expensive.

   Many of these clients are going to need bilingual or private programs that are going to be prohibitively expensive or may just not be available, or may be available but very far away from where the parents had originally lived. And of course, there are language issues. The language issue may be such that the client does speak for example some Spanish with the parents, or the clients' child may even think that they are fluent. But I will then ask the client who has a child in eighth grade, can your child read a novel at an eighth grade level in Spanish? In other words, does the client have sufficient language skills to continue an educational program with peers or classmates in the country of origin that you had lived? And often the answer clearly is no. We also find a lot of times that language issues become more serious when they're regional languages. In other words, there's this broad assumption that everybody in Central and South America speaks Spanish, and of course that's true and not true. I do know that there are regional languages including Kichwa in areas including Ecuador, where not only are they spoken by family members which our clients may be cut off from, but they've actually been introduced as ethnic cultural languages into the school system. So they're being taught not just at an oral level, but for writing and reading as well.

   The lack of language can be extremely isolating for a child or for any individual. When you go to a country where you don't speak the language, your ability to integrate and become part of the community can be very difficult, and you may become a pariah or a target. So education is understood similar to healthcare in a very, very broad way understanding positives, negatives, and so on. But some of these education language issues can really if they're not available, fundamentally jeopardize the child's future. One more thing about language. I see a lot of clients, especially spouses, a woman may be married to her husband, he comes from Mexico for example, and the wife speaks a little bit of Spanish but she's clearly not fluent, and she has a professional career here. Well clearly, if she has to go back to Mexico at the age of 35 or 40 or 45 and work as a professional in her career, she needs professional language skills in Spanish, as her colleagues would have in that country. She can't just have a few words or know a few sentences or be able to understand when her husband speaks in Spanish, she needs sufficiently good Spanish language skills. Otherwise, she's not going to be able to work in a country of origin where her husband was from, just as her children will not be able to integrate into the school system.

   The next major issue is safety hardships. Safety hardships are huge. It has to do with crime and drugs and violence. It's very pervasive. I see clients who don't want to venture into the community because there's government corruption and police ineptitude, extortion, alcoholism, and so on. I have a great case I just did. It's very fascinating from I believe it was Mexico, and the woman was living there with her two American children. Her husband's here because he can't take care of them, and she's a school teacher. It was fascinating. I said, "Oh, it must be terrible. Your children are home all day because of the COVID-19 pandemic and they can't go to school." And she said, "Yeah, it's terrible that they can't go to school, but they're much safer." She lives in Hidalgo which is a state in Mexico, central Mexico. And she said, "Look, the community is so filled with drugs and violence and alcoholism and people are kidnapped." She had a cousin that was kidnapped, and a son's aunt was kidnapped just two or three months before.

   She said, "Look, they're at home and they're isolated, but they're safe." And it really reflects something fundamental. Here is a school teacher that doesn't want her own children to go to school because they have to venture into the community each day because it's just so unsafe. Safety issues have a lot to do also with Americans. I know for example, my clients from Guyana tell me they fly in visiting family members, and they're literally followed from the airport because there's kidnapping, extortion, and so on. So safety measures are extremely, extremely important. The next issue is community hardships, which really dovetails with what we've been talking about. Community has to do with community access support. It has to do with extended family members within the community. For many people, their community is an extension of their home life. It's crucial for children to have a structured, predictable, certain environment where they have and enjoy stability and safety in their community, where they feel they can grow and develop, they can go and play in their yard and interact with neighbors and so on. Many community hardships also concern community supports in various ways. Safety as I said, socialization, and sometimes communities can just be very therapeutic in and of itself.

   I had a client whose wife unfortunately had committed suicide many years before. They were living in Boston for many, many years. And it did not seem on the face of it a strong hardship case. I looked at the family, and one of the things I noted was the two children gained therapeutic support just by being in the community, just by going to the same school every day and engaging in the same activities, seeing familiar faces with classmates and peers. Enjoying familial support from teachers and the school system was extremely therapeutic in the aftermath of the loss of their mother from many years before. In sharp contrast, many of these clients and children would be going to communities where they don't have any supports, where they're unfamiliar with their community. And that could be very terrible, especially if they're unfamiliar with the culture and language and geography, and so on. This relates also to cultural hardships, where we see so many clients who in the United States really enjoy their community at a cultural level because perhaps they have a strong ethnic group here. Perhaps they go church or temple. There are language issues as I mentioned before, even dress issues. I have many clients here when they visit their extended family in their parents' country of origin, they have to dress a certain way. They can't wear earrings or have cell phones out. They can't wear watches.

   There are also expectations, values and limitations within cultural hardships that I always try to consider for both the individual family and for the greater culture as a whole. The next huge hardship issue is clearly financial. Financial hardships can concern everything as far as I am concerned. I want to know about as I'm sure the lawyer, does this individual have car payments, monthly mortgage bank payments. Does the client provide educational financial support for the children or even college tuition payments? I have many clients that say if my husband leaves, I'm never going to see him. I say why? And she says well, I got to be honest. Just the cost of flying back and forth with me and my three children is prohibitively expensive. I might go once a year, but that's about it. Plus I have to take off time from work so I'm losing time, my salary will be reduced. Financial hardships clearly concern and impact a wide range of issues in our lives, and clearly it supports us in a fundamental way. Many clients I see are also two income families, which is quite common in the United States. And by having one family member leave who supports 50% of the income for the home, it will be extremely detrimental.

   In sharp contrast, many of these clients come from countries where there's high rates of unemployment, wages are very low, the economy is very poor, the value of the currency is very low and so on. And I often ask clients, I say your brother and sister in Ecuador, what are they doing? And they'll say oh, my brother's working on the farm and my sister is a school teacher. And I will ask for their salaries. What does your brother make in an average month working on the farm, what does your sister make working as a school teacher? And the salaries are terribly low. Very often I also find clients here sending back money, sometimes a lot of money to their parents in their country of origin for medicine, for housing needs because their siblings aren't working. And by the way, quite often when I ask about employment in countries of origin the answer is well, they're not working. And I'll say why. And they'll say well, either jobs aren't available or jobs are sometimes available, but the jobs pay so poorly it's sometimes not really worth it to even work, and they kind of just supplement their income by doing agrarian labor or whatnot. So hardship issues are extremely important. It could also impact as I mentioned before, family unity in the country of origin, it could impact educational support, and just about everything else you can think of.

   One other thing about financial support and that concerns and I mentioned this a bit before, career, as sometimes I see an individual who's working in a career and it provides important financial support to the family, which is wonderful. But the career also provides really important positive self-esteem, and it serves as a core part of the identity for that person. I saw a person the other day working in healthcare here and it wasn't even such a fancy job, but she loved her job. She loved working with the people, she loved the title she had. And if she had to go back to live with her husband in Mexico this job would clearly be lost to her, and a core part of what made herself feel good about herself would be completely lost as well. The next major area are special abilities opportunities, I mentioned this a little bit before. But we see clients of course, that are very engaged in sports and athletics, clients who are engaged in extracurricular activities, clients who are engaged in their religious community in one manner or another, clients who have opportunities for extended family support in the United States, all sorts of things that the client enjoys not simply within their immediate family, but within the greater community as an opportunity or as a special ability, which really would be lost if they have to leave the United States.

   I saw a great case about two months ago where a child was really not doing well in school for various reasons. And he joined the wrestling team, and he did very well wrestling. And he was promoted in rank and he went to tournaments and so on, and his academic grades significantly improved because his self-esteem improved. He gained an identity. He was all of a sudden very admired by other students in his class and so on, and it was just wonderful. Now clearly, if he had to go to his dad's small town or even large city in Mexico, in all likelihood this wonderful wrestling team and his opportunity for athletics would be lost. And it has other impacts as well. Maybe this guy's going to do so well as a high school wrestler that he can use it perhaps as a way to get into college with an athletic scholarship. So special opportunities and abilities are wonderful to consider.

   I want to look at another major hardship issue. There's about three or four or five here that are for some reason omitted, even though they just seem so obvious to me as a clinical expert undertaking forensic cases. And that concerns female hardships. We would never have someone go to another country where they would be the victims of bias or prejudice because of the color of their skin or their sexual orientation, or their political views or their religious affiliation. But we don't hesitate to have women forced to return to a country or go to a country where they would clearly be second class citizens. And in all the years that I've been going to immigration court and I try to stick around to hear decisions, or I come back if the decisions are not done immediately, I have only once in all my years heard female hardships in deportation and waiver cases come up. Clearly if you're a female as a second class citizen in the country, you don't have the same opportunities for education, employment, integration into the community. You may not have same legal access, social access. Your dress may be limited, right? You may not be able to wear the same kind of clothing that you do in the United States because you're going to be targeted for sexual abuse or assault or whatever, or even kidnapping.

   Many of these countries don't have adequate social services. The police don't help in many countries in Central and South America where there's machismo, brothers and fathers and husbands are deemed all powerful within the home. And the female hardships are absolutely crucial. I have two daughters myself. In my eyes right now they have equal opportunity to the males in their classes. There are now more women in college than men. Is there equality in the United States? Obviously not. We have a way to go in many areas unfortunately, but the truth is we're making fantastic progress. And the opportunities for my daughters here would be far greater than if they were to live certainly in South American countries, and certainly even more so in Central American countries. And indeed, I have to tell you very frequently when I ask about country of origin histories, I see women in their 30s and 40s and 50s and older who tell me about incidents of sexual assault, harassment, and even rape, sometimes by multiple individuals throughout their adolescent years, and when they were young adults. The next area obviously that people are interested in are mental health and psychiatric hardships. This is a particularly difficult area because there can be contrasts in needs.

   For example, I see many children without psychiatric hardships that occurred in previous years, but now in the last couple months or perhaps to the last year or so they have developed acute anxiety, depression and so on because of fear and anxiety regarding losing their parents. And they can develop separation, anxiety, learning problems, their focus may go south, and so on. The older you get, the more psychiatric issues. Sometimes I must say that in 601 waiver cases, in a large number of cases, let's say about 90%, the petitioner does suffer from psychiatric issues by history. That includes posttraumatic stress disorder, major anxiety disorder, suicidality. There may be a history of drugs, alcohol and so on. These issues tend to be missed by primary care physicians and pediatricians. Pediatricians God bless them, are terrible with this stuff. I remember taking my kids for years to pediatricians when they were growing up. Pediatricians never asked about mental health issues, or the quality of sleep and appetite and wellbeing of the child. So these are really core psychiatric issues, and mental health problems understood more generally that need to be considered. So those are the major hardship criteria.

   I want to spend the rest of the time quickly looking at the challenges. First and foremost, many of these clients require multiple meetings. Sometimes these clients don't want to come to multiple meetings, but I encourage them. I have strategies for them to return. There is sometimes a diminishing return, so sometimes just one or two meetings is enough, but you never know. Research is important, documentation is extremely important, and I want to know why I'm meeting the client and the family. I said this at the outset, is it just for an extreme hardship evaluation, or is it for an extreme hardship evaluation, but also to mitigate a problem that the client has including fraud, CIMT, misrepresentation and so on. I want to include all family members near and far as much as possible because of COVID international pandemic. Often evaluations are done by Zoom but I really, really prefer face to face evaluations, especially now that everybody's getting vaccines. I have to tell you, I had this extremely serious case in South America where the American husband relocated to live in South America with his wife and his American child because he loved his wife and his American child. It's not hard to understand, even though the lawyer said, "Look. If you stay here, there's separation hardships."

   And indeed it was a very serious case because he'd been living with his wife and child for a couple years and the argument is well, maybe he can continue to live there. And I said, "Look, I think we need a face to face interview." I ended up going with the client's parents who live in New York to Aruba to meet them, because the client lived in such a dangerous area in Brazil. And the evaluation allowed me to elicit incredibly important information about the client's wife, who had tried to enter the United States previously through fraud, and she did so because she was trying to escape an extremely abusive environment. So sometimes face to face evaluations with the inclusion of all family members is fantastic. The next area is particularity of relationships. This is absolutely crucial. You want to show the particularity of relationships. A classic a case I had was a woman who said at a master calendar, I don't know what she was doing there, to deport her boyfriend's sorry ass out of the United States. Why? They had a seven year old American daughter in common, the woman and her boyfriend had broken up and she said, "Look, this guy isn't doing much."

   And indeed this 22 year old client was in jail. It wasn't a very serious charge, but he was in jail. His parents were undocumented, his siblings were undocumented. I evaluated the cases and what I basically found was that this client, this 22 year old was indeed not providing fantastically wonderful support for his seven year old American child. But the standard is hardship for that particular child. And what I said was, "The particular support that this father provides, the few hundred dollars a week, the six hours of babysitting, playing in the park with her, that incremental support may not seem great to you. He may not be the father of the year, but for that child it may mean the difference between growing up and heading in a direction of teenage pregnancy and drugs and all sorts of problems and truancy, and knowing that she has a father that loves her, knowing that her mother can go to college and that she'll have some greater support system through the child's father." I see this a lot, particularity of relationships with gays, where they don't have children and the marriage is seen as valid, but they're not seen as a family because it's two people married to each other, but without children. So you want to show as strongly as possible the connection between those individuals, the dependency, the fears of separation and so on.

   I see this also with elderly people. An eight year old can often take care of themselves better than an 80 year old. So frankly with geriatrics, I try to consider the same level of particularity of relationships as I do with anyone else. This is particularly true if the geriatric is petitioning for their child who is 30, 40, 50 years old to stay in the United States. If they are the petitioners, I want to know about the client's history to understand why their dependence is as it is. The next major area are the hardship challenges. Of course, we want to evaluate hardships that would occur if the client is forced to leave the United States resulting in separation. But we also want to know Column B, which is the hardships that the qualifying family member or family members would suffer if they must return or live with the client in the client's country of origin. Now obviously if the qualifying family is an American citizen, they don't have to leave the United States. But they love the person, they of course want to live for all or part of the year outside of the United States.

   This can have very important implications for all sorts of reasons, including the fact that the environment, the culture, the place the person's going to be living, can really have a direct impact on the individual. And I'm going to give you one huge example. I had a client with two kids and there were no immediate hardship issues in the United States. But the client said, "Look, I come from a family in Mexico where my father and brother are alcoholics, and alcohol is ubiquitous." And in fact, the client's father was living in Long Island, New York and he was still drinking. And we discussed this at length, and what it showed me was that these American children would be forced to live in a home with extended family members in Mexico where alcohol was freely used. There's no support system, there's no Alcoholics Anonymous or rehabs or social supports, and these children would be at risk. We would certainly never have these children if they're moving for example, from New York City to a city in Oklahoma, to a home in Oklahoma where grandparents and aunts and uncles are abusing alcohol, we would never want that relocation. So why would we possibly allow a relocation that would cause hardships because of alcoholism with extended family members in the country of origin? So hardships need to be looked at from that perspective as well.

   It's also important, and this is a challenge that I see less frequently in more recent years, but to outline the expert's qualifications, the expert's understanding about the situation, how often they have met with the person, and also to what extent they have an understanding about the extreme hardship issues, in particular healthcare, education and family needs that are being noted within the evaluation that is undertaken. It's important that because I am not a country condition expert and there are country condition experts, that nonetheless we include country condition material. I'll give you example of this. Many clients I see for example, say that within the state or the area that they're living in within their country of origin, they're high rates of crime. I'm not a crime expert even though I've done literally thousands of evaluations, but still I can go to the State Department or other websites and include material and in fact check on the client, if what they're saying is true.

   And sometimes the opposite is also true, by the way. Sometimes a client will say oh yes, I grew up in a wonderful area, I had no problems. My family were very supportive and I was very happy. And I'll sort of scratch my head because I'm familiar with the area as one of being one riddled with crime or violence or drugs or whatnot. And I'll check the internet and sure enough it says high rates of crime, and there are perhaps even travel advisory warnings. And I'll come back with the client and I'll say look, you said everything was fine there, but then I see all this negative information. The client says yes, but my experience wasn't terrible. And both can be true. It is possible that the client generally grew up with positive memories in their country of origin, but nonetheless the children who are forced to live there, or the spouse who's American who's forced to live there for all or part of the year would indeed suffer extreme hardships because of well documented country origin hardships in websites such as the State Department and so on.

   The next question is of course, who does these evaluations. Therapists should not do them. They're not qualified, they don't have the experience. Many therapists are worried about liability, they don't want their notes to be turned over. Therapists also document mental health problems in a very conservative way, sometimes in a way that's just to match healthcare reimbursement. Me, I'm a forensic expert, I don't care about those things. I care about anything and everything that impacts the clients and with regard to their backgrounds, psychosocial history. This is especially important. If there are no mental health issues, we see clients who are generally mentally stable without psychiatric histories. Does that matter? Of course it doesn't matter, because the extreme hardship evaluation is a holistic. So even if there's no history of psychiatric problems, we're still looking at family hardships and education hardships and healthcare hardships and community hardships and employment hardships, and so on and so forth.

   Moreover, there may be reactive mental health issues that are just in the context of fear and anxiety of what will happen if the case is not granted. So as a result, you really want a forensic expert that's attuned and sensitive to these issues, rather than a therapist who frankly is not doing that kind of work. A therapist works to do clinical work long term. My favorite example, I see this a lot, are in spousal abuse cases. I'll see a client who's been in therapy for months or sometimes years, and they haven't been talking about certain issues within the spousal abuse such as sexual abuse and so on, because it's just so painful and embarrassing. I see the client, and in an hour or two I get the information. Why? Because I ask very specific targeted questions. I need to elicit that information within just a few hours, otherwise I'm not doing my job as a forensic expert, which is so different from the therapist. We have to think of therapy in a mental health diagnosis rather, in a very broad way. As I mentioned before, there could be reactive issues. But many clients also have subclinical mental health issues, atypical mental health issues that are really a major challenge in extreme hardship analysis because they're not documented.

   I don't care if something's not documented. Clearly if it's documented it helps the case, it helps the lawyer explain the case and so on and so forth. And many times if it's documented, the client has previously been referred for therapy. However if it's not documented, I will still document it myself just as I would for a healthcare issue. As I said earlier, the most common example is obesity. I have a lot of clients who are clearly overweight, sometimes seriously overweight, but it's not documented for one reason or another by their doctor. But looking at the person I know that they're obese, and I ask them about it and it could by the way, provide huge insights because obesity may be due to an eating disorder or eating due to anxiety or depression, or all sorts of other things. The other thing is many of our clients don't get mental health issues because it's anathema to their cultural background, they're stigmatized. Many clients don't have financial resources or access. I also have many clients especially from places like Jamaica, who gain wonderful mental health support of various clients through their spiritual leaders, pastors, congregational leaders or fellow parishioners within their church. So just because someone's not going for traditional psychotherapy and not getting medication, doesn't mean that they're not benefiting from mental health support in various ways.

   So the goal of this evaluation is to humanize the client through a sympathetic narrative. We want the reader to feel empathy, we want to document the client's life history, and we want professional expression to replace self expression, especially for extreme hardship analysis. Because the client himself cannot explain the extreme hardships, we need a professional to elicit information through a structured evaluation so that within a single document, we can insert issues related to academic limitations and how a family may be jeopardized, or healthcare may be undermined if the case is not granted. We want to look always at cumulative factors, how hardships are interweaved with the legal standard and ultimately, try to quite frankly, build a brick wall. That is, you have a case where there is physical hardship and there is financial hardship and there is medical hardships but those hardships are not very serious, but nonetheless they are present. However, when you put them together you can build a brick wall and fortify something that is strong and persuasive.

   The hardships must of course include as I said, both hardships here, and hardships upon family members returning to the country of origin because of quality of life issues in general. And just as we're going to take a holistic evaluation of the individual and family about their life here, we want to have a parallel holistic understanding about the client's life in his country of origin, primarily because we are not there. And secondarily because the American spouse or the American children are not there, or maybe they have never visited there. And so it's so important that we have the client explain his experiences growing up what he saw, what his limitations were in life, because it may speak volumes as prologue to what his American spouse or his American children may indeed encounter in his country of origin. The expert's role within immigration court is again a completely separate CLE, but it's the two judge theory of practice that we learned in law school. It's the judge who you stand before, and the judge before whom you're going to have to appeal your case if it doesn't go well.

   I would say beware of stipulations with extreme hardship cases with experts such as myself because sometimes, and I've seen this over and over where the report is seen as wonderful and it's stipulated to in court, but because it's stipulated to, I'm not sure to what degree the judge and/or TA have really read it in detail and internalized it. And these are long reports, especially for 601 waiver cases. There's certainly 10,000 words and they have multiple sections with all sorts of issues and so on. And with stipulations I'm sometimes worried that they're not properly read, even though they're accepted into the record. Nothing replaces live testimony. I had this case in New Jersey years ago, I'll never forget the judge. I had another case with the judge in the morning where I had testified and the judge said, "You know in the afternoon, you're just not going to win the case because it just doesn't seem like there's sufficient hardship material." And I was just horrified. And of course I went to the cafeteria, I went over the case for many hours before the afternoon hearing. I came back, I testified and the case was won. And the judge said, "Look. I think it's won because of cumulative issues."

   Now I think the judge was being nice, but I think it was also because I just had the chance to speak with the judge face to face as two people advocating for these two amazing children whose parents were from the Philippines who were just amazing violinists in doing everything well within the community, volunteer and charity work and so on. So sometimes that can help. I will tell you, I had worked with an attorney who subsequently relocated to the Southwest. He was a TA at 26 Federal Plaza in New York. And he claimed, and he had been at 26 Federal Plaza for many, many years, that experts who contribute evaluations are rarely appealed. I think he said just because it's a pain, because then they have to counter with their own expert, and it becomes impossible. And of course the expert's opinion is not only within the court record, but it's well documented within the case itself. One major last thing is mitigating illegal factors. This is again a completely separate CLE, but we must never forget that it's not just a hardship issue in the deportation and waiver cases that need to be considered, but also from a forensic respective mitigating, explaining why someone entered through misrepresentation or fraud, explaining that this was an abhorrent decision, that it was misguided, why they did it, show that there's remorse, regret, show that these individuals had life stressors and so on.

   And many times I've seen in denials that I can pick up it's not the hardship issue as such which is the problem, but the fact that this person tried to enter through fraud, misrepresentation, or they have a felony or whatever. And finally, finally, finally denials, what to do if you have them. It's de novo. I look at the case very fresh. Whether it's for my own case or someone else's, I insist the family start fresh. We do a completely new evaluation. I get as much information as possible, I think what's missing from the original evaluation of the original case. It's not free, it's a lot of work. It might be a second bite of the apple. It might not be, it's difficult to know. But ultimately when I am referred a case for a denial or even an RFE, whatever it might be, I take the cases if I've never seen it before. And I work with integrity to try and understand the issues that are most meaningful in the extreme hardship analysis for the individual and for the family members.

   Thank you very much. What I've tried to do today is provide an overview from a clinical perspective of the extreme hardship criteria, and also understand the major challenges from a forensic perspective in understanding the evaluation process and the advocacy for clients in these kinds of cases. Thank you very much. And again, please don't hesitate to send me an email if you would like a redacted copy. Thank you.

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