Barry Rosenfeld, Ph.D., a professor in Fordham’s department of psychology, spoke to students and faculty over Zoom on Oct. 8 about the role psychologists play in immigration court.
In his lecture, “The Role of Psychologists in Immigration Court: Ethical, Legal and Practical Challenges,” Rosenfeld outlined how mental health professionals navigate complex legal, cultural and ethical terrain to evaluate trauma, assess competency and advocate for immigrants seeking asylum or facing deportation.
He emphasized that understanding the humans behind each case is as important as understanding the law itself. In immigration court, he said, the stakes are much higher.
“When something happens to someone in the criminal court, they get punished right? They get sent to prison, they get sent to jail, they have to pay a fine.” Rosenfeld explained. “In immigration court, they get expelled from the US.”
Another difference found in immigration court is the ability to have attorney representation.
“We don’t have the same right to an attorney that you hear when you watch Law & Order,” Rosenfeld said, referring to Miranda rights, which are the legal rights that police must inform suspects of when they are taken into custody and before any interrogation.“That doesn’t happen in immigration court. You can have an attorney, if you can afford one.”
After a brief overview of the area of forensic psychology, Rosenfeld explained the specific work that psychologists perform in immigration court. A major focus, he said, is requests for asylum, which require applicants to meet strict legal criteria.
“It can’t just be anyone that’s afraid to go back to their country.” Rosenfeld said. “It has to be that you’re being persecuted because of your race, your religion, your membership in a political group…it has to be specific to your country of origin.” He added that an evaluation of competency to stand trial normally is required to proceed.
Applications for asylum are not the only issues. There are also deportation risks for criminals who have been convicted, even if they immigrated to the U.S. legally. In his powerpoint, Rosenfeld shared U-Visa as a resource for “immigrants who are victimized by criminal activity (and have suffered substantial harm) while in the U.S.,” and noted the Violence Against Women Act as another resource “for women suffering serious intimate partner violence inflicted by a US citizen or legal permanent resident.”
The role of psychologists expands far beyond asylum. Not only do psychologists and other mental health professionals provide legal validation for trauma, but they also assess competency to stand trial, provide intel on applications for bail relief, treatment for any mental illnesses and assess other mitigating factors.
There are plenty of challenges for psychologists in these roles, mostly concerning the adaptation to the legal system.
“We have to know something about the law, we have to know not just what it is that we’re trying to speak to, but we need to know how to do that in a way that we can communicate it with the judges. This is very different from what most psychologists do in most contexts,” Rosenfeld explained.
Another factor is knowing the cultural significance of the case being worked.
“We certainly need to demonstrate and have as much cultural competency as possible to work in a setting like immigration court,” Rosenfeld said.
Rosenfeld also discussed the mental health toll of immigration detention, noting that the issue extends beyond the threat of deportation.
“Over the last 15 years or so a growing number of studies … have demonstrated just how bad it is on [their] mental health,” he said. “Rates of depression are somewhere between 50 and almost 90% of people who are in immigration detention.”
Rosenfeld also discussed pre- and post-migration trauma, citing trauma as a common reason for migration. He also explained stressors post migration as a link to not only deportation fears but also the entire migration process.
There are challenges to impartiality more often associated with immigration evaluations in comparison to criminal and civil law. Rosenfeld noted the increased risk of “adversarial allegiance,” as he said that, “immigration evaluations are almost entirely requested by attorneys for (or representatives of) the respondent.” Rosenfeld shared that to minimize risk of bias, a psychologist must acknowledge that the bias is present.
Professor Celia Fisher, Ph.D., took questions from the audience following the presentation, but first asked one of her own.
“At the end of the last Trump administration, APA asked for an immediate halt to the government and ICE getting confidential psychotherapy notes from unaccompanied children … what is going on now with children? What are the forensic issues with an unaccompanied child or children of other individuals or adults who are here illegally?” she said.
Rosenfeld responded by noting that juveniles are eligible for deferred deportation, but that he currently understands that at the moment, children are being deported just like adults.
An audience member asked if there were any special considerations or lack of consideration for people with physical disabilities.
“Some of the more compelling arguments for those are people who have either a medical condition or a physical disability that is just not going to make it possible for them to live in the environment that they might be forced to return to,” Rosenfeld said. “It’s widely variable based on the judge’s attitude towards all of this … that’s really by far and away the biggest predictor of outcome.”
