January-February 2012

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The Making of a Great Partnership The Mental Health Expert The Immigration Lawyer BY H. RAYMOND FASANO offer a clinical observation and diagnosis of the client. Mental health or medical experts can convert clinical findings into legal terms that meet the standard of "extreme hardship" while remaining within the scope of their expertise. Immigration attorneys who submit Form I-601, T Application for Waiver of Grounds of Inadmissibility, have the burden of establishing extreme hardship to a qualifying relative if the waiver is not granted. The bar to reentry can be waived if "the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien." INA §212(a)(9)(B)(v). To qualify for a waiver, the foreign national must show extreme hardship to their qualifying U.S. citizen or lawful permanent resident spouse. Congress legislated the extreme hardship standard in the INA, but did not define it. Accordingly, it is up to immigration counsel, in consultation with medical and/or mental health professionals, to define that term on a case-by-case basis. By craſting the extreme hardship standard to meet the particular facts and circumstances of the client, attorneys and health care professionals provide the adjudicator with a clinical analysis upon which to make a favorable finding of extreme hardship. Know the Factors Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 16 VOICE he Sisyphean task of advocating for a waiver of inadmissibility has a greater likelihood of success when an immigration practitioner partners with a mental health expert who can Comments? VOICE use your 565–66 (BIA 1999), is the leading Board of Immigration Appeals (BIA) case to enumerate the factors an adjudicator may take into consideration in determining whether a foreign national has established extreme hardship. These factors include: (1) a qualifying lawful permanent resident or U.S. citizen spouse; (2) the qualifying relative's family ties outside the United States; (3) the conditions in the country to which the qualifying relative would be forced to relocate if the waiver is not granted; (4) the extent of the qualifying relative's ties to said country; (5) the financial impact of departure from the United States and relocation abroad; and (6) the health of the qualifying relative, including the availability and suitability of medical care abroad. The best method of demonstrating extreme hardship is to present these hardship factors in their totality rather than independently. Matter of O–J–O–, 21 I&N Dec. 381 (BIA 1996). An attorney must work with the health care professional to enumerate the hardship factors in a manner that does not merely repackage legal conclusions, but instead, conveys to the adjudicator that the clinical diagnosis meets the legal burdens of proof. The effective health care professional uses a combination of medical jargon and lay terminology in the report to support clinical conclusions that meet the extreme hardship standard. This approach is effective in demonstrating to the adjudicator that the client meets the extreme hardship standard enumerated in the statute. The health care professional must earn credibility with the adjudicator so the medical and psychological conclusions are given the appropriate weight. All references to psychological trauma or a psychological ILLUSTRATION BY BRADLEY AMBURN SHUTTERSTOCK.COM

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