Am I qualified to conduct an immigration evaluation?
Many mental health providers assume they cannot conduct immigration evaluations if they only have a master’s level degree (as opposed to a doctorate degree) or are not yet independently licensed. In reality, several other factors are often more important.
The general principle in immigration proceedings is that evidence, including expert testimony, is admissible so long as it is (1) relevant to the issue at hand and (2) fundamentally fair. And although the Rules of Federal Evidence do not strictly apply in immigration courts (which, unlike federal trial courts, are considered administrative agencies), they do serve as a guideline for determining whether someone qualifies as an expert.
Rule 702 of the Federal Rules of Evidence states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Notice that an expert is defined here as a person with “scientific, technical, or other specialized knowledge” who can “assist the trier of fact to understand the evidence or to determine a fact in issue.” In other words, education, training, and experience in a particular subject matter (in this case, conducting immigration evaluations) weighs much more heavily than any degree or license.
Take the following example:
Susana is a psychologist who has been licensed for three years and whose specialty is substance abuse and eating disorders. She is fluent in Spanish and is adjunct faculty at a graduate university, where she teaches a class in human development.
Jane completed her master’s degree in marriage and family therapy and is accruing hours towards licensure under a licensed clinician. She has been involved with a non-profit that serves undocumented immigrants for 15 years – first as a volunteer, then as an intern, and now as the director of clinical services. She underwent extensive training in working with victims of trauma and abuse and has written two dozen affidavits for clients involved in immigration proceedings. Jane trains and supervises mental health advocates who assist clients in finding them adequate resources to improve their quality of life.
You’re an immigration attorney looking to substantiate your client’s application for asylum. To whom would you refer your client?
Although Susana’s advanced degree, professional status, and ability to speak the client’s language may be persuasive, she will have a hard time withstanding a voir dire cross-examination (the process whereby an expert is qualified to testify on a case). The government attorney will likely highlight her lack of experience working with asylum seekers, her limited training in assessing victims of trauma, and her overall narrow knowledge of the psychological impact of traumatic experiences.
Jane, on the other hand, clearly has the educational background, training, and work experience to bolster her expert testimony. Despite her still being in the process of getting licensed by her professional board, she possesses the knowledge, skill, and experience to effectively evaluate a foreign national seeking asylum in the United States. Her being unlicensed will likely be brought up, but in light of everything else, it will not be dispositive.
If I were the attorney on this case, I would feel much more confident in Jane’s ability to evaluate my client and defend her expert opinion in immigration court.
Of course, it is essential that the clinician be supervised by someone who has the education, training, and professional experience necessary to competently supervise their work and co-sign on reports or any written work-product.
If an individual has questions about whether they qualify to act as an expert, they should raise those concerns with the attorney seeking to use their services, who can adequately assess if their knowledge and experience are sufficient to qualify them as an expert witness.
Judging an expert solely based on their degree is akin to judging a book by its cover.
