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Mitigation of Illegal Behavior for Immigration Defense Lawyers: How Crimes, Fraud, Misrepresentation, and CIMTS can be Explained Through the Help of Clinical Forensic Evaluations

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Mitigation of Illegal Behavior for Immigration Defense Lawyers: How Crimes, Fraud, Misrepresentation, and CIMTS can be Explained Through the Help of Clinical Forensic Evaluations

Among the most important topics in immigration defense today is CRIMMIGRATION, that is, the consideration of how to contend with and explain criminal issues, including fraud, misrepresentation, illegal activity and crimes involving moral turpitude, for immigration clients. This seminar will consider how to tackle this extremely important issue separate and apart from proving hardship issues in 601-waiver petitions by using MITIGATION, just as criminal defense lawyers use mitigation to defend and explain their client’s criminal behavior with prosecutors or in court.


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


Mark Silver:  Good morning. My name is Mark Silver, and today I'm going to be presenting a CLE. It is entitled, Mitigation of Illegal Behavior for Immigration Defense Lawyers. The subtitle is, How Crimes, Fraud, Misrepresentation, and CIMTs Can Be Explained Through the Help of Clinical Forensic Evaluations. I'm a forensic evaluator in New York. I've undertaken about 2000 cases for immigration defense lawyers, primarily in the Northeast, but also throughout really everywhere in the United States. At this point, I've lectured too about 10,000 lawyers. And what I'm talking about today is what I think is the most important issue for immigration defense lawyers from the perspective of a forensic expert. Almost all referrals to clinical experts such as myself, occur for extreme hardship cases which occur with waivers and deportation cases of course, referrals for VAWA, asylum, competency hearing for matter of M-A-M and so on. With extreme hardship cases, which can either be for waivers or cancellation of removal, there's another component. And that's what we're going to be talking about today. And that concerns if the client has their own problem.

   In other words, we're not only looking at in these cases, the extreme hardship that qualifying family members can can suffer if the person is forced to leave the United States. But in these kinds of cases for mitigation, we're looking to actually mitigate the wrongdoing of the client who has come to the United States. The wrongdoing can be in the form of some crime, an arrest, fraud, misrepresentation, or CIMT. And that's the core of the CLE. And it's to argue that mitigating the issue that the client has, the crime, fraud, misrepresentation, or whatnot, is as important or more important in 601 waiver and cancellation removal cases as explaining the extreme hardship for qualifying family members.

   I have a book which is called Handbook of Mitigation and Criminal and Immigration Forensics. And the subtitle is Humanizing the Client Towards a Better Legal Outcome. The seventh edition was just published about two, three months ago, and the subtitle really focuses on what I want to talk about today. That is humanizing the client towards a better legal outcome. Usually with extreme hardship analyses, we consider exact criteria, psychological, emotional, medical, family, community, healthcare, employment, safety issues, and so on and so forth. However, we also need to have criteria for examination in these cases where we're mitigating illegal activity on the half of our client. And the core is to humanize the client just as we want to humanize the qualifying family members who are going to suffer extreme hardship, so too, we want to explain that this client who has committed fraud or misrepresentation, or has a criminal record, whatever, there are reasons for this.

   We want to be able to contextualize it and humanize this individual to explain his decision making and how he got to be in so much trouble. There is a specific chapter in my book on criminal mitigation, as there are specific chapters on VAWA, extreme hardship, asylum, matter of M-A-M and so on. However, the first part of the book is for criminal lawyers. The second part of the book is for immigration lawyers. However, in some cases, the immigration lawyer would really benefit from reading the first part of the book, which focuses broadly on criminal mitigation. And that's what this is. Criminal mitigation for clients who have these issues.

   I try as best to integrate theory and practice and I have a redacted sample of a forensic report. Please don't hesitate to email me. Put crimmigation sample in the subject, and please put all your information in the email, so I know it's not spam. Put your full name, your address as an attorney, your phone number and so on. I promise I will send you no spam, nothing whatsoever. I will just send you back the redacted copy, but unfortunately I get a lot of spam. I just want to weed them out. The point here is I want to really integrate theory and practice. I really want to be able to show how in the context of, let's say a 601 waiver case where obviously extreme hardship considerations are first and foremost, we also need to mitigate, criminally mitigate the illegal behavior on the part of our client.

   I have to say criminal mitigation is not something that immigration lawyers normally think about. It's not part of their ordinary practice and thought. As I said in 601 cases and cancellation removal cases, the primary focus is document, document, document with regard to the extreme hardships. However, the reality is that in many of these cases, the outcome, the case being granted may rest on the quality of mitigation to explain the illegal behavior. ALA National does not offer CLE in this area. Although I have to tell you, I'm a member of ALA, a long time member and there are many areas of forensics and clinical examination for immigration defense lawyers that ALA National is just not interested in and I have no idea why. I will tell you ALA chapters, they are interested, and I've actually done a number of CLEs for ALA chapters throughout the United States. And hopefully have several more set up for this coming year.

   The only parallel I can think about is criminal defense lawyers. Criminal defense lawyers regularly have not really considered the immigration consequences to plea deals in criminal court until more recently. And so too, immigration defense lawyers really need to consider criminal mitigation as a regular part of their practice because of course, so many of the clients that I see have been referred, not only because of the extreme hardship issue, but also because of the illegal issue. Now, the illegal issue by the way, can come up in other contexts as well. I have had for example, asylum cases where the person has petitioned to the United States fearing returning to his country of origin because of concerns of persecution or human rights violations. But that individual also has during their years living in the United States committed a crime for example, and that may need to be included there.

   So, let's start off with then, a general definition of criminal mitigation. Criminal mitigation is a bio psychosocial evaluation of the client's social, psychological history informed by the facts of the criminal case with appropriate recommendations as a means to minimize the negative legal outcome, either in court or within adjudicate. Mitigating circumstances reduces the degree of moral culpability or blame, which in fairness, sympathy or mercy may lead to a more favorable outcome for the defendant. This definition is the actual criminal mitigation definition that I give when I teach criminal lawyers throughout the United States for both state and federal crimes. It's the exact same definition word for word. Why? Because the mitigation evaluation we do for the client, which we're going to talk about serves to elicit the same kind of information to help understand who the client is to contextualize and explain the client's decision making that led to the illegal behavior.

   Then we can hopefully have the adjudicator or the immigration judge or whoever become more informed and sympathetic about the client and why he acted in this particular way. And that could be very important. I have a case I'm just finishing literally this morning and a concerned a person who relocated to the United States on a valid visa, but clearly to work, not to visit, even though it was a valid visitor visa. And then he wished to reenter and he left the United States about six years after being here. And the circumstances of his entering the United States and exiting and wishing to enter again, really were very sympathy. He entered the United States originally because his family members were suffering from dire poverty in Uzbekistan, where they lived without food or basic necessities, such as electricity indoor flush bathroom, clean water and so on. And he came here to work. Now, clearly overstaying his visa and working when he was not supposed to is wrong, but that's the whole point of criminal mitigation to explain the client's wrongdoing.

   Also, of course, I was explaining the extreme hardship for his qualifying family members. The client then left the United States as I noted after several years returning to Uzbekistan. Why? Because his nine year old daughter had been diagnosed with a rare form of cancer. And then he subsequently wished to relocate again to the United States and his son was petitioning for him. But this is just a wonderful example that I saw just this very week of a person who made decisions to do things that were clearly wrong, such as overstaying his visa and working when he wasn't supposed to and so on. And there's some real context with it. So, when to use mitigation, first, clearly are the Adam Walsh Act cases. It's a completely separate CLE. It's very, very complicated. We can't go over it now and I'll be happy to do a CLE on it subsequently.

   But basically, the Adam Walsh Act is in itself mitigation. Everything is about showing rehabilitation, showing the individual's ability to live in the community, behave and act in a responsible and mature manner with family and outside of family and to contextualize and explain the client's arrest whenever it occurred. The main focus, I would say secondarily for the Adam Walsh Act criminal mitigation, is the fact that the adjudicators at USCIS or anybody one would think, sees these individuals who have committed crimes against minors, sexual acts against minors are so reprehensible that it attaches severe biases and assumptions. And I mentioned this later. So that the adjudicator thinks, "Well, this guy was arrested 15 years ago for this particular sex crime, but really this person cannot be rehabilitated because it's such a severe thing." Or the person thinks, "Oh really this person has committed many other crimes that he simply was not caught doing. He was just caught doing this one particular sex act with a minor." So there are many biases in the Adam Walsh Act analysis through the criminal mitigation. And that's why psychosocial evaluations are absolutely crucial for it.

   The next kind of area where mitigation is used is clearly those where the client has entered the United States through fraud or misrepresentation. And this of course can encompass falsifying marital status, falsifying names or birthdays and so on. The absence of children and many other issues, including the client's identity itself. The next area of mitigation is of course criminal arrests and convictions. This encompasses both felonies, but also misdemeanors. Some clients of course may have one arrest five, 10, 15, 20 years ago, but other clients may have multiple arrests. And then you have a category of clients who may have one very serious arrest and then other arrests which are more minor. This is actually something I've seen a number of times with the Adam Walsh Act referrals, where the person has the criminal arrest for the sexual assault of a minor female for example, he does not repeat that, but he has perhaps two arrests for DUIs.

   And although it would seem that the Adam Walsh Act criminal mitigation focuses just on the criminal arrest for the sexual assault against the minor. In fact, you have to look at all criminal arrests for that particular case and explain how and what way they may inform or qualify the more serious criminal issue. And finally that all catch categories CIMTs crimes involving moral turpitude. So, when to use mitigation. Let's look at specific areas. Bond hearings. I have to tell you that I've done literally 2000 cases. I started my practice in 2002 and I've only got about six phone calls for bond hearings and I've only done a few cases. And it makes no sense. This is a perfect area for criminal mitigation. The bond hearings in the immigration world is similar to the criminal world in that we're looking at risk to community and flight risk.

   The truth is in the immigration cases of course, the flight risk is extremely low because the person is I'm sure very reluctant to return to his or her country origin, but those are the standards. The bond hearing criteria may have little or nothing to do with the actual hardship analysis, but the hardship can be part of the analysis in criminal mitigation for the bond hearing. In other words, when I do a psychosocial assessment for a bond hearing for a client, I don't just look at that individual client, I look at the risk of flight or risk to community. I don't just look at the client's rehabilitation in their life and how they've improved and their connections to work, family, church and so on. I look at hardships to family members. It makes it much more sympathetic. It also makes it much more honest to have that inclusive.

   It's also very, very important to note that many or all, I guess individuals who are going to have bond hearings are going to need a 601 waiver for one reason or another. The criteria and information that is included in the bond hearing that is mitigating the client's issues and bringing in the extreme hardships as related to family members, is basically the same body of information that is needed for the 601 waiver. In other words, you're killing two birds with one stone and the report can be used for two functions. There's a parallel in the criminal world where sometimes criminal defense lawyers get a mitigation report, a criminal mitigation report as we're talking about for pre-plea purposes, that is before the client even has a plea. The criminal defense lawyer wants to say to the district attorney, "Look, this is who my client is. These are issues related to his life. These are mitigating factors. This is the context. These are things you should know about."

   And if it falls through, if the pre-plea deal falls through for one reason or another, you can use the exact same criminal mitigation report for pre-sentence purposes. Again, you're killing two birds with one stone. So it's very, very similar... Clearly for bond hearings, if the person has a criminal arrest that has to be front and center, especially if for example, there have been issues related to drugs or alcohol. So you want to really show that the person has completed their rehab programs, they're involved with whatever it is, counseling and anger management and so on. And especially their good moral values and ties to the community in many, many ways. As I said at the beginning, I've only had a few referrals for bond hearing. Sometimes lawyers will sort of pick my brain about how to pursue it beyond the risk to community and flight risk criteria, and in my opinion as a criminal mitigation expert, just do a criminal mitigation evaluation. Do a formal evaluation, because you're going to need it for the 601 waiver anyway.

   The other thing is these are really difficult hearings and very similar to the extreme hardship analysis where the rule's document, document, document. There's no reason not to have the same rule for bond hearings. Document, document, document. So, that's my recommendation. It's a major use of criminal mitigation, which unfortunately is underutilized by immigration defense lawyers in the United States. The next major area are 601-A provisional waivers. Now in 601-A provisional waivers, the client has entered the United States basically without inspection. In the cases I see, the clients don't have crimes they haven't been arrested for felonies or misdemeanors, they don't have issues of misrepresentation or fraud or CIMTs or whatever.

   So if you're listening, you're thinking, "Well, why in the world does this person need a criminal mitigation consideration in a 601-A provisional waiver?" And the answer is I love it for these particular cases. When the 601-A provisional waiver is weak. That is when the extreme hardship factors are weak. And I'm going to give you a wonderful example that I use all the time. And that is women. Women who come from central and south America in particular, where they experience in their communities, frankly, high rates of sexual abuse and even outright rape for children and adolescents and young adult females, where these females live in communities where they have to defer to their fathers and brothers and husbands because of machismo. And these females are really second class citizens. They don't have the same legal, social, education, employment, religious, and community opportunities. What happens, many of these women are simply traumatized by the abuses that they have suffered.

   They have very limited kinds of lives and they want to leave and who could blame them? If it sounds familiar, of course, it sounds like an asylum case. Individuals who suffer persecution for a particular reason here simply because they're female, they have no source of social support, they can't go to the police in the community and they wish to flee where they've been abused and they come to the United States. When I put that information in, it's extremely sympathetic. It humanizes the client who's entered the United States without inspection. It gives a reason to their decision making. It's not just that they came here to work to find a better job, which may indeed be part of the reality. However, it really underpins their history. Now, this is really super important, not only for criminal mitigation reasons to mitigate why the person entered the United States without inspection, but it does something else. It speaks to an extreme hardship factor. Because this female, let's say her husband is petitioning for her to stay in the United States. She may well have a daughter or two daughters.

   And if the American husband and the American children are forced to relocate with this woman to her country of origin, her daughters are going to be living in that same environment and they're going to suffer the same extreme hardships because they're going to be at risk of being physically or sexually abused. And as females, they're also going to have very limited opportunities for education, employment, and they will be restricted in the community. So, it not only helps to explain why this person entered the United States without permission to do so, it helps to explain why this person should not relocate with her family to that country, given extreme hardship factors. And some of these are extremely concrete.

   Another issue that pertains to this. And I put this in my extreme hardship lecture, goes to the quality of maternal paternal care. It's a very important area that is not usually talked about. But what it means is that if this woman who has suffered for example, history of sexual abuse or sexual violence in her country of origin before relocating to the United States, and as a result, she suffers clinical trauma. What's called post-traumatic stress disorder, or depression, anxiety, or worse. She may have suffered suicidality, chronic panic attacks and so on. If she's forced to relocate there with her husband and daughters, it could trigger for her deep-seated fear, anxiety, uncertainty and so on, so that she in turn may not be able to provide proper maternal care to her children. That is, she may not be able to function optimally as a mother.

   And therefore, her American kids that are living with her in that country are not going to benefit from proper parental support. So again, just like bond hearings, which are not really considered for criminal mitigation, so too 601 provisional waivers, when I'm referred cases, I'm always told, "Oh, we need an extreme hardship analysis." But my concern adjacent to that is also a consideration of criminal mitigation. And as I said earlier, criminal mitigation in the much broader sense, just in the idea that the person has entered the United States without inspection, but the person actually has no criminal issues as such, or anything else, the person is not in the United States through fraud or misrepresentation.

   The next major issue is called cancellation of removal. Cancellation removal is another area where 95% of the time when I'm in court and cases I've done for cancellation removal or where I testify, the very strongest part of the focus is on extreme hardships, which is understandable. This is particularly because extreme hardships extends intergenerationally, it extends for the respondent to parents, spouse, and also children intergenerationally, who are qualifying family members. However, many clients I see for cancellation removal cases also have a history of arrest. And those arrests in my opinion need to be explained because we don't know if the immigration judge is ultimately going to grant the decision or deny a decision based just on the extreme hardship analysis and or the criminal issue. And I've actually been to court several times, particularly in Florida, where the judge has opened up the case by simply saying that he's not interested in entertaining evidence pertaining to the extreme hardship analysis, because he feels the case should not go forward because of the criminal issue.

   I want to give an example here about how it could be very relevant and useful. I see a lot of clients who have arrests for driving while intoxicated, driving under the influence of alcohol. Many of these clients have multiple arrests over multiple years. What's very interesting is the large majority of these clients stop drinking at some point or minimize their drinking. And when I see them most often, they have not had arrests for many years, five years, six years, 10 years and so on. Clearly the case is much more complicated and requires much more sophisticated criminal mitigation if the arrest has occurred much closer in time. However, what's high happened is when these clients become rehabilitated and they stop drinking, sometimes they go to AA meetings or social support groups or whatnot. It's not only good for them as respondents in immigration court clearly to show that they're rehabilitated.

   However, it's also very important to show that they are much better fathers because they're no longer drinking. They're providing much better care, love, and support to their American children. Now, if deportation occurs, this guy who, let's say is from a small town in Mexico is going to be returning to a place where alcoholism may be prevalent, there may have been a history of alcoholism in family, the individual may not have the availability of social services, supports AA meetings and so on. Additionally, he may be very depressed, not only because of the lack of healthcare intervention here, but because in Mexico, he may not be working. He may become depressed. He may feel worthless as a father. And these things may trigger him to drink again. In other words, it's very important to understand that if this person is deported with his family, to the small town in Mexico, that there will be extreme hardship consequences directly to the children if this guy starts drinking again. It's also very important when this occurs with alcoholism in the family of origin. And I think I'll just mention it now in this context.

   If this client came from a family where there was pervasive drinking, then the children would be going back to the home of extended family members in Mexico to the small town where they too would be exposed to pervasive drinking. And whether there's pervasive drinking, frankly, there's often pervasive verbal, emotional, physical, and even sexual abuses. And I actually had a case like this about two years ago, where a couple had just two very wonderful young children, but there were no real extreme hardship issues. However, the male respondent had a history of alcohol drinking, not very serious, but much more importantly, his father who was in the United States was an alcoholic and he had two brothers in Mexico who were alcoholics.

   And I testified, I said, "Look, we would never want a child in any other situation, whether it's a foster care or an adoption evaluation or whatever, to relocate to a home where alcohol abuse is pervasive, how in the world could we allow this child to relocate with her parents, to the small town in Mexico, in a home where alcohol is a very, very real problem?" So to me, the criminal mitigation of the respondent in this kind of case who has a history of alcoholism is important in and of itself to show hardship issues as well, but also to show hardship issues if indeed this person is deported to, as I said, a small town in Mexico, for example, where supports will not be available and how the environment itself is toxic, can have a very negative effect on his children who are qualifying family members.

   One of the things I really try to ask myself is what is needed in a particular evaluation? Because we've looked now at the major purposes of criminal mitigation and what kinds of cases it's used. And I really try to ask myself how important is it in a particular case versus the extreme hardship analysis. And one of the things I've found over the years, and I've done a lot of appeals for other experts and so on, is that the majority of the decision is based on the extreme hardship issues. But always tucked away is the fraud misrepresentation crime or so on. And it seems to me that it can be used as a crutch to deny a case. And it's very important therefore, to understand the relative importance of each issue, let's say in a 601 waiver can case comparing and evaluating the extreme hardship issues as compared to the need for detailed criminal mitigation.

   And certainly I have a completely separate CLE on waivers with ext... I apologize. A completely separate CLE on extreme hardship criteria for waivers and cancellation removal cases. And in that CLE too, I consider a note, the question, what is really being evaluated here? What needs to be evaluated the most? And the best example of course, is when you have extremes. For example, if you have a extreme hardship evaluation and the American spouse for example, who is petitioning for his wife to stay in the United States, sees an oncologist because of a history of cancer and receives chemotherapy and radiation therapy and is very weak and is in need of support, well, clearly you have an overwhelming medical extreme hardship concern. However, there are other cases and I see this quite regularly and I mentioned this for the 601-A provisional waivers where the hardships are really very weak.

   And the kids get up in the morning, they go to school, the parents get up and they go to work. Everybody's healthy, there are no psychiatric problems. They're well integrated into the community and really the hardships are minimal if any. And in those kinds of cases, looking at criminal mitigation or country of origin extreme hardship criteria, can be extremely helpful. I want to look at the actual purpose of criminal mitigation as understood in both the context of the criminal cases I do for federal state and so on and also for the immigration defense lawyer. First and foremost clearly is to humanize the client through a sympathetic outcome, whether it's for bond hearings or waivers or cancellation removal, whatever, whatever the issue is that is the focus, misrepresentation, fraud, whatever it is we want to humanize the client. And that is, as I noted the beginning, the subtitle of my book. Just as we want to humanize the individuals who have extreme hardship concerns, we want to humanize our client who has committed this wrongdoing.

   Why? We want a sympathetic narrative to induce empathy into the reader so the reader can identify with various challenges and in issue that that client has had. And that's the core of criminal mitigation. Again, my favorite cases are these females who've suffered sexual abuse or sexual assault in the country of origin, their lives were extremely limited because they're females in terms of education, employment, and other opportunities because it really reflects deprivations and privations as children or adolescents or young adults as females in their country of origin. And it's very, very sympathetic.

   Many times when I have been in court, the TA brings in the disposition from the criminal case. The disposition from the criminal case in my mind is nearly useless. It has the outcome of the criminal case, but it gives you nothing about the context about why the person was initially arrested or mitigating issues or whatever. And so a main purpose then of criminal mitigation is to counter that simple piece of paper and to provide a much broader holistic under standing about the client and their history. We want to document the client's life history and contextualize their conduct of course, but we also want to explain the family's physical, psychological, and financial hardships as it pertains to criminal mitigation. And I mean this in the country of origin. For example, many people come to the United States, and I noted this example at the outside of the CLE. I had the client who came from Uzbekistan where his family, he had three children, literally did not have enough food eat. They lived without basic necessities such as electricity and clean water and they had no bathroom and so on and so forth.

   And really showing the extreme hardships that his family suffered in those years, even though they're not qualifying family members, really sheds light on the reason for this person relocating to the United States and overstaying his visa. Clearly, as in all these cases, you want to illustrate the client's community educational employment ties, but very essentially, we want to express the client's remorse and regret. This is very important in criminal court. It's important for immigration defense lawyers to understand also that the client should say, "I'm sorry," in one form or another. They should show contrition for the fact that they were arrested for something or that they committed fraud or misrepresentation, not just to explain it and to explain the context which is crucial, but literally to say that they're sorry. This is more difficult in USCIS cases, because it's all paperwork, it's more palpable in immigration court where the person who's been arrested for DUIs five and 10 years ago can say, "I'm sorry, I did this at a time in my life when I wasn't thinking I didn't have the help I needed.

   Now I have family support. I've become rehabilitated through AA meetings or through social service support or whatever." And just to say to the court, "I'm sorry, and this not happen again. This is no longer who I am as an individual." This really dovetails into the next issue, which is that professional expression can replace self expression. And that means that we have clients who are frankly, very uneducated, very unsophisticated, they cannot advocate for themselves. And just like they need a lawyer to provide them legal counsel and legal direction and strategy and so on and so forth, they need a clinical expert in almost every cancellation removal case, every extreme hardship analysis, every case I have ever seen. And probably for 90% cases of clients that don't have this, they need a clinical expert who knows forensics to evaluate their case to provide professional clinical expression. These clients cannot explain themselves and they need a clinical expert to do so. That's why this is not just a mental health report. And in fact, we have many cases where the mental health issues and psychological issues are not at the forefront at all.

   It is a holistic understanding about these clients and their lives and how they live their lives, thoughts, feelings, behaviors, and so on. This is a huge element that I explained in the extreme hardship CLE called Local Parentis, where you have clients, for example, that deeply love their children and they're caring for them and so on, but they're working extremely hard as first generation immigrants, they're very uneducated. They cannot advocate for their children in their school system or recognize educational problems that the children may have. And so they rely on the school system or the healthcare system to evaluate and intervene when necessary. So too, they go to an immigration defense lawyer because they cannot advocate for their legal needs. So too, they absolutely require a clinical expert to evaluate their issues because they cannot explain their issues themselves. So, many of the cases have a great deal of documentation. Of course, the rule's document, document, document, especially for extreme hardship cases. So too with criminal mitigation and the immigration defense lawyers sometimes really inundates the TA.

   For example, a judge with a lot of documentation, which is well meaning, but overwhelming. And it can be helpful to take snippets of it in even one or two paragraph form to highlight education or community ties, employment considerations and so on. So, another purpose of the mitigation or the forensic report in general is to bring in these different issues as a single document that can be read and digested by the reader incorporating these different elements. Sometimes it can be a counter to the government's documentation. This is most prominent in Adam Walsh Act cases. In Adam Walsh Act cases, it's not just that the USCIS has the disposition to a criminal case, they have significant documentation. And as a result in the Adam Walsh Act analysis cases, you have to really have a very comprehensive criminal mitigation, evaluation and report to counteract their documentation and also to counteract and undermine any prejudices and biases that they may have.

   The last purpose of mitigation is really to allow the adjudicator to have something to hang their hat on. This is an expression that I heard from a immigration judge in New Jersey. This goes back about 15 years, but he was really inclined to grant the case. And the reality is he just didn't feel he had enough substantive information in the extreme hardship analysis. And I'll never forget. He said, "Look, I just need something to hang my hat on. I think it's a valid case, they are wonderful people. They don't want these wonderful American children to be forced to leave the United States." And criminal mitigation could do that. It could provide just a little bit more information above and beyond the extreme hardship analysis. As I said, but it really needs to be repeated in the slide where the assumptions that the government has when there's a criminal issue involved and the biases and prejudice. Again, this is so prominent in Adam Walsh Act cases, is such that it really needs to be tackled in and of itself.

   And when it's tackled, what we're able to do is disabuse the other party of biases. And we don't allow them to fill in the blanks, to fill in assumptions on their own. In other words, we disabuse, we disallow guesswork. This is really crucial. And again, we don't allow this for extreme hardship cases, we document, document, document. And we, we really elicit a very profound and holistic understanding about the extreme hardship for the qualifying family members. So too for the extreme hardship, if at all possible, we want to do this. And I really want to emphasize that in some of these cases with the criminal mitigation, it's not necessarily that profound. Sometimes in just a few paragraphs or a few pages, you can contribute a fantastic amount of understanding as to why people do the things they do such as in this case from Uzbekistan, which I noted at the beginning of the CLE, where he's literally coming to the United States to put food on the table, literally to send money back to put food on the table for his family.

   And he eventually left the United States and went back to Uzbekistan for the reason that he needed to care for his nine year old daughter who was diagnosed with cancer. And he needed to escort her to a multiple surgeries in Germany, Switzerland and elsewhere. In other words, this was a person who was doing things that were wrong, but based on very good intention from the heart. And we're not here to excuse him. What we're here to do is to explain his decision making. In criminal mitigation, there are several key ideas that are used, and I thought it would be very valuable to include them here. One is aberrant decision. Someone's committed a crime, is it an aberrant decision? Is it something that does not reflect their usual decision making? Is it misguided? Is it something that they did as an error of judgment? Something that was just foolish. And I always think about myself or friends or family as teenagers or young adults decisions or conduct that we did, which was really foolish or worse. And we sort of rehabilitate ourselves.

   We've gone through college and we're good family members, good citizens and so on. Is this what occurred to this particular individual? Is it something that was just done in an unthinking moment? Something that the client had done impulsive as a knee jerk reaction. Another key idea is diminished capacity. This is really important. Not diminished capacity in the criminal sense for defense purposes, as we learn in law school, but diminished capacity in the sense that are there cumulative stressors in this per life over a period of months or even years that informs the client's poor decision making? That overwhelming stressors over a period of time can very much impact our judgment. Another thing we want to get across, and this is particularly true where the client has a serious a felony. And especially, I must say in Adam Walsh Act analysis, is that the person is not evil, is that although the person has committed some criminal wrong, or perhaps multiple criminal wrongs, the person is not evil.

   And we want to try to explain who this person is as best as possible. And this goes, and I hate to go back on it again and again, but it's so central in Adam Walsh Act cases for example, there is this inherent bias that a person who's committed a sexual act against a minor is inherently an untrustworthy person. And that they're evil. We want to explain that they are for whatever reason misunderstood or that in some manner, their behavior although wrong can be afforded some sort of exploitation. If possible, you want to talk about redemption, right? How the person has been redeemed through rehabilitation. The best proof of rehabilitation is simply good conduct.

   If you've been arrested for a serious felony 10 years ago and after the matter is cleared up, you work every day in the same job and you come home every day and you act as a good father and family member and you integrate and you are a part of the community in a safe and healthy manner and you pay taxes and so on and so forth. Well, those good behaviors are proof in and of itself of redemption, of rehabilitation. Sometimes there is the concern of balancing justice with deterrents and so on, which is a huge consideration, obviously in the criminal of cases I do. I think they have some validity here as well, because you have the extreme hardship analysis. In many of my cases in the criminal world, I have one right now I just finished this week, is an individual who could be sentenced to four or five years in prison. He's an outstanding father to his two biological children and two stepchildren. I mean, he cares for them, he takes them to appointments.

   He plays with them. In many ways he's a good role model, gives them hugs and kisses. It's wonderful. In the criminal justice system, there's no legal standard to say, "Look, these are American children who will suffer deeply and they'll go on the wrong path if their father's incarcerated." But we do have that in immigration, right? It's the extreme hardship standard itself. So, if we are to balance this person's wrongdoing with the extreme hardships that his family members would now suffer, then I must say, we're in good shape. It's very interesting. The case I did in Uzbekistan, this client is now trying to get back into the United States. Because as I said, he came to the United States, he over his visa, he was working and so on.

   He now wants to come back to the United States because his daughter who was nine years old at the time with that diagnosis of cancer is now in the United States, she has a green card. Unfortunately she's become substantially more sick with multiple, multiple medical issues. And his wife is here who also has a green card. And she also has multiple medical issue is, and his coming to the United States would really help the extreme hardships, medical and physical extreme hardships that these immediate family members are suffering. And so there's a real balance and it can be very helpful.

   Let's move on. Another set of criteria, I guess you call it that I use for criminal mitigation. I also want to share with the immigration defense lawyers, is what's called the 10R's of mitigation. And this is an actual chapter in my book. And the 10R's, is just an outline of how to conceptualize for the immigration defense lawyers just as criminal defense lawyers use mitigation. The first R is reality. Looking at the client's felony, a full narrative of not just the deposition, that is the full narrative of what actually occurred so we can understand the seriousness of it. Next mens REA. Unfortunately I think I spelled this with an H, there's no H in the Latin, but not intent as we think of in law school. But volition. That is the wider thinking decision making of this particular client in committing the wrongdoing.

   Next R is recency. When did this occur? This is not very helpful for criminal cases for criminal defense work, because very often the criminal act occurred just months before. However, in the immigration world, this is a fantastic R, recency. Because many of these clients have committed their crimes five, 10, 15, 20 years before and sometimes have not committed another crime. So, that could be very helpful. Repetition. Look at the overall client's record. Has this client repeated their crime? Have they been arrested for different things? And so on. Rung, what is the seriousness that's involved in the particular crime? This is crucially important, especially in Adam Walsh Act cases. I come back to it again and again. I know I have a separate CLE on it because you can have a sex crime against a minor, which is just horrific and overwhelming and it's repeated.

   And I've also done two cases in Adam Walsh Act where there was a non person. These are digital of cases. In other words, it's the least serious kind of Adam Walsh Act, where the person thought he was communicating digitally with a minor through the internet, but in fact it was an undercover police officer. So the R, the rung, the seriousness has a lot of effect in criminal mitigation, especially in this kinds of Adam Walsh Act analysis. The next R is restorative. Has the client righted his wrong? The next R, rehabilitation, which is very similar. Has the client changed? Will the client change? Again, if there's five or 10 years between your analysis today and the crime, well, the client may have shown rehabilitation in and of itself through good contact in the community, through good contact going to work every day, through good conduct as being a good family member and so on and so forth.

   Has the client shown remorse and regret? The next Rs. Does the client understand and accept his actions? Roles. What is the client's role in the community? Who is this client? Is he a responsible individual? And lastly, recommendations. This is particularly helpful in criminal mitigation where you try to understand what can be fixed and who can be helped in this particular situation? The role of the criminal defense of the immigration defense lawyer and the forensic experts such as myself, should compliment and balance one another so that the lawyer can advocate for the client in a more complete manner. The point here is that doing the analysis, not only elicits information through my psychosocial assessment, so I can write something that can explain the case, but it's also so that the lawyer himself or herself can better understand the facts case whether with regard to the extreme hardship analysis or with regard to the criminal mitigation analysis so that the lawyer can be a better lawyer.

   It's mental health issues and psychosocial history with all mitigating factors that need to be interweaved into a coherent whole. Who should evaluate these cases? A systemic analysis is required. It's not just mental health issues. Forensic experts know what they look for. Therapists may contribute progress notes rather than a detailed summary, which is really unhelpful. Many therapists are very frightened to write forensic reports. They feel they're not being paid for it. They really feel liability. They're concerned they're going to be sued or somehow held accountable. Many therapists have never testified in court and they have no interest in testifying in court. They feel very threatened by it. The other thing is submitting the notes of a psychotherapist alone is very dangerous. And I'll tell you why. When I started in 2002, I would go to court 2002, 2003, 2004. And I could tell the TAs were looking for psychological or very specific medical problems for let's say qualify young children in deportation cases.

   And one of the things I tried to do over the years was try to explain when I'm testifying that it's an extreme hardship analysis. That's why I was referred the case. I wasn't referred the case because of depression or anxiety, I was referred the case for an extreme hardship analysis that is a holistic understanding of any and all hardships. And so you may have children for example, who are the qualifying members in a particular case who have no depression and no anxiety, no mental health problems. They may be very psychologically stable and secure. And so if you're submitting just mental health notes, you're really doing a disservice to the case because you are undervaluing the wider range of criteria in the extreme hardship analysis. So too, with criminal mitigation.

    You may have a client who has a DUI, which is serious from five or 10 years before and you submit therapist notes about how this person has progressed. Well, that's fine. It shows the is not drinking, but you also want to show what this person is doing in the last five or 10 years after not drinking to show that they're good community members and good parents and that they're responsible and that they show remorse and regret. And that's not possible through therapist notes, but rather through a forensic evaluation. Nothing replaces client meetings face-to-face because of the international COVID pandemic. I've had to do a lot of Zoom cases as one can imagine, but I have to say nothing replaces face-to-face evaluations. Some of the Zoom meetings have been very good, some have not been so good.

   I also do a lot of detention cases. Some of the jail interviews I've done have been quite clear in terms of sound and picture and others have been very blurry with a very poor quality sound. These are extremely serious cases and it's a problem. I really like to go to jail if at all possible to see these clients, I don't just want to and information from immediate family members, multiple meetings may be necessary. There could be cost involved. It's a serious consideration, but these are also serious cases. When the focus of the case is criminal mitigation itself and not just extreme hardship. And this is especially true if there's a serious criminal mitigation issue to look at such as multiple arrests or when the extreme hardship analysis is obviously very weak, then having an opportunity to speak with the client directly and undertake the analysis of the criminal mitigation. Again, should be done directly with the client if at all possible. Psychiatric issues are very, very important, both for extreme hardship, analysis, and also for the criminal mitigation piece.

   It's important to understand that we need to look at mental health issues very broadly to look at subclinical and atypical issues. This is by the way, also very important for extreme hardship because many times I see children who do not have diagnoses of depression or anxiety, but they do have subclinical or atypical issues, meaning that they're showing symptoms or signs of depression or anxiety, but not enough signs or symptoms that qualify for a formal diagnosis. Many clients also have undocumented issues. This is extremely important, especially in criminal mitigation. Many clients come from places where psychiatric care is anathema to the culture or mental health diagnoses are stigmatized. By the way, many of our clients, and I see this a lot from my Caribbean clients, especially from Jamaica who never go see psychotherapists, they get enormous mental health support from their churches and fellow parishioners and pastors.

   And some of these pastors are by the way trained in mental health counseling for a wider range of issues. So, understanding psychiatric issues, both for extreme hardship analysis and also for the purpose of criminal mitigation for the client, is very important. And the fact that the client comes to you without documentation should not preclude the evaluator from considering mental health issues very broadly and in a systemic manner. Additionally, I really try to get what's called parallel histories. And this occurs when you're speaking with the client and you have concern about the client providing you the whole truth or the client is reluctant to speak about an issue for one reason or another, you speak to the client's wife or sister or brother, and they provide a parallel history about the client's early childhood development, life, challenges, traumas, stressors and so on. And you get a trove of information.

   Interview someone's wife or interview someone's husband about the other spouse, and you will just get a flourish of information which is extremely positive because you want insight into the person's daily functioning, their life, their particular sense of stability, security, the challenges that they've suffered and traumas and so on. What to do if you get a denial, I've helped clients with many, many denials over the years. When I get a denial referral from another expert, I simply start again. I take it de novo. My joke is there are two kinds of lawyers, those who get denials and those who get denials, but won't admit that they get denials. Denials happen. It happens to everybody unless you really, really cherry pick your cases. And it could be a second bite at the apple. Not only do I start de novo, but I re-interview everybody even if they've been interviewed. I obviously ask if there's anything that was not previously present, information that was not previously present, documentation.

   In many cases, clients just don't listen. I say to a client, "Look, I think I can best evaluate your case by having family member X, Y, and Z present." And they'll say, "No, family member X goes to school or family member Y has a job and can never come in." And at the end of the day, you can't force clients to do things, you can only give them your best recommendation. But when they get a denial or an RFE, suddenly the client wakes up and they say, "Oh, we got to take this really seriously." So it can be a second bite at the apple. The other thing is, I really look at denials that are sent from lawyers or RFEs whatnot. I try to read between the lines. I really try to look at it and ask myself what are the two or three main concerns?

   It seems to me in RFEs and they could be wrong. But it seems to me that the USCIS, they're on the fence, they're on the fence in RFEs where they feel they just need a little bit more information to grant the case. But clearly, and I just saw an RFE last week in a VAWA case where I really thought they were on the fence ready to deny the case. And it's worth noting this was an individual who had forgotten or was unable to present crucial information about his wife who he claimed to be abused by. And in fact, when I saw him, he literally could not remember some very fundamental information about his wife. And I was concerned that he had a neurocognitive problem. And after I assessed him, I referred him to a neurologist because in fact, he may have a outright medical issue or something. He's relatively young, but who knows what it could be. But we want to do this in especially appeals and RFEs because we want to consider anything and everything that we did not consider before.

   Clients who most benefit from criminal mitigation are clearly clients with mental health problems, those who've suffered extreme hardships, childhood traumas, abuses where there's family interdependence, clients who have poor language communication skills. As I said earlier, those clients who cannot adequately advocate for themselves, clients who fear authority, and especially if there's a confluence of mental health and social deficits. Again, in criminal mitigation cases, we're looking for anything and everything in the person's background to help better understand who they are in their decision making to explain why they have this felony or CIMT, or why they try to enter the United States through fraud or misrepresentation. In terms of USCIS versus IJ cases, clearly, it's always better to explain things in person, especially for criminal mitigation issues. The adjudicator may not read the report in full, or if they read the report, they may not to understand it or internalize it.

   I write very comprehensive and long reports, they could be 10,000 words. And of course, when you go to immigration court, the advantage is you can really summarize and explain things in just five, 10 minutes and answer a few questions, the TA or judge to help them fill in the gaps where they may have some questions. I have to admit very often I go to court and I see the TA quickly reading my report and they're reading the conclusions so that they have not really focused on the body of the report. And some of these are very, very serious cases. And the negative consequences of having a case denied is extremely serious for qualifying family members.

   In some of these cases, travel be necessary, travel to immigration courts throughout the United States, and it could be costly, but it could also be very necessary. And these are certainly issues that need to be reviewed with the client. Well, thank you very much. What I've tried to do today is provide an overview of criminal mitigation that is explaining the context of felonies or CIMTs or fraud or misrepresentation of the part of clients trying to enter the United States and taking that as seriously as we consider the extreme hardship analysis in the 601 waiver and cancellation of removal cases. Please, please if you want to sample redacted copy, don't hesitate to email me, put all of your information in the email so I know who you are as a real lawyer, name and address, phone number and so on. I'll be happy to send it back to you as an attachment in word format. And I hope to see you for another CLE in the future. And I certainly hope this was helpful for you today. Thank you.

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