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What are the immigration consequences of suicidal and self-harming behavior?

It is surprisingly common for individuals to engage in self-harming behavior, such as cutting. Under  U.S. immigration law, when this behavior is linked to a mental illness and is likely to recur, the person is barred from the country. This article offers advice to immigration attorneys, who are likely to encounter these issues with clients. We offer advice on identifying clients likely to engage in self-harm, and strategic advice for handling such cases.

This piece was originally published as: Mental Health Inadmissibility: Helping Clients Who Engage in Self-Harm, Julia McLawsen and Greg McLawsen, 20 Bender’s Immigr. Bull. 973 (Sep. 1, 2015)

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Research indicates that between 4% to 13.4% of all young adults in the United States report have engaged in self-injurious behavior.[1] Some studies have found that self-injurious behavior may be even more common amongst high school and university students, with estimates ranging from 20% to 40%.[2] In fact, it is far more common to engage in self-injurious behavior than to be diagnosed with a mental illness such as depression, bipolar disorder, or schizophrenia.[3] While many believe that women engage in self-injurious behavior more often than men, research shows that both women and men are equally likely to engage in self-injury, and hurt themselves in similar ways.[4] In short, it is reasonable to presume that most immigration attorneys will encounter clients who have engaged in self-harming behavior.

In this article we explore mental health inadmissibility caused by self-harming behaviors.[5] Section I briefly summarizes the Immigration and Nationality Act (INA) provisions underpinning mental health inadmissibility and identifies mental disorders commonly associated with self-harming behavior. Section II explains how immigrant visa and adjustment applicants are screened for self-harming behavior, and details the process of seeking a waiver under INA Section 212(g). Section III gives an overview of the most effective treatment modalities for self-harming behavior, and explains their application to the specific disorders identified in Section I. Finally, Section IV concludes with recommendations for implementing self-harm screening protocols within law practices, and advocacy tips for clients who exhibit self-harming behavior.

I. What is self-harming behavior and why does it matter?

A. Self-harm as a ground of inadmissibility

United States immigration law has long excluded persons with certain mental abnormalities.[6] Early statutes barred “idiots,”[7] “insane persons”[8] and the “feeble minded.”[9] Today’s law continues to bar certain individuals with mental illness. INA Section 212(a)(1)(A)(iii) renders inadmissible any alien who is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior. . .[10]

In this article we address a specific subset of inadmissibility under Section 212(a)(1)(A)(iii)(II): those with a mental disorder associated with self-harming behavior. The myriad of disorders associated with harm to others – pedophilia and the paraphilias, for example – are beyond the scope of this article.

The most important guidance for assessing mental health inadmissibility comes from the immigration examination instructions promulgated by the Center for Disease Control (CDC).[11] The Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders (“Technical Instructions”) are publically available online and have separate editions for panel physicians (responsible for medical evaluations at consular posts)[12] and civil surgeons (who conduct evaluations domestically).[13] The two editions of the Technical Instructions appear to be substantively identical and contain only procedural differences specific to the visa or adjustment processes.

For practical purposes, “mental disorder” means a condition diagnosable under the Diagnostic and Statistical Manual of Mental Disorders (DSM).[14] The Technical Instructions state that mental disorders are “health conditions that are characterized by alterations in thinking, mood, or behavior (or some combination thereof).”[15] The Technical Instructions explain that the DSM is “an authoritative source on the classification of mental disorders and should be considered for the purpose of this examination.”[16] While this language leaves open the possibility that a condition would constitute a mental disorder even if it did not meet diagnostic criteria under the DSM, for practical purposes the DSM guides assessment of mental health issues. Note that the Foreign Affairs Manual expressly defines mental disorders by reference to the World Health Organization’s Manual of International Classification of Diseases (ICD).[17] Whereas the Technical Instructions defer to the ICD for assessment of physical disorders, the Instructions refer to the DSM for assessment of mental conditions.[18]

“Harmful behavior” refers to an action associated with a mental disorder that causes injury to the alien or to another.[19] To fall within the meaning of “harmful” for purposes of Section 212(a)(1)(A)(iii)(II) refers to:

  • Serious psychological or physical injury to the applicant or to others (e.g., a suicide attempt or pedophilia);
  • A serious threat to health or safety (e.g., driving while intoxicated or verbally threatening to kill someone); or
  • Major property damage.[20]

Where the noncitizen has engaged in harmful behavior in the past, the panel physician is required to use clinical judgment to assess whether the behavior is likely to recur.[21] As a general rule, however, the examiner will expect to see at least a twelve-month window since the most recent harmful behavior in order to determine that the behavior is in remission.[22]

In the field of clinical psychology, “self-harm” and “suicidal behavior” are distinct terms of art. Clinicians understand self-harm as behavior that causes intentional, immediate physical injury to one’s own body without intending to die.[23] Such behaviors include cutting, burning, biting, and hitting oneself. These forms of self-injury are distinct from smoking, using drugs, bingeing, purging, and other behaviors that gradually harm the body over time, even if the resulting harm is serious. Suicidal behavior is understood to involve intentionally engaging in self-destructive behavior with the immediate goal of killing oneself.[24] As used in this article, the term refers to behavior that would quickly result in death (e.g., exsanguination, overdose, hanging, suffocation) and not behaviors that, if repeatedly engaged in over time, may increase one’s risk of dying (e.g., risky sexual behavior, unhealthy dietary habits, neglecting to properly care for a chronic medical condition).

B. Understanding clients with self-harming behavior

This Section gives a brief overview of why individuals engage in self-harming behavior and identifies mental disorders commonly associated with self-harmful behavior. Understanding the motives behind self-destructive behavior can help attorneys identify and engage with at-risk clients.

In short, people engage in self-destructive behaviors because they derive immediate short-term benefit from doing so. One common way that self-destructive behaviors yield immediate benefit is through negative reinforcement, which involves removing or reducing an unpleasant experience. For example, let’s imagine that Robert feels sad because his romantic partner Susan just ended their relationship. Robert starts feeling better right after he burns himself with a lighter, which means that his emotional relief has negatively reinforced burning, making him more likely to burn himself in the future. The most common reasons people engage in destructive behaviors are because these behaviors yield quick relief from unwanted feelings, thoughts, situations, and sensations.[25]

Another common way that self-destructive behaviors yield immediate benefit is through positive reinforcement, which involves bringing about a desirable experience. For example, when Robert texts Susan to say he has just burned himself, she texts him back, expresses concern for his well-being, and offers to come over and keep him company. Now Robert has just gotten something he wants: Susan’s support, affection, and – soon – her companionship. Susan’s reaction has positively reinforced burning, making him more likely to burn himself in the future.

While self-destructive behavior can temporarily reduce unpleasant thoughts and feelings,[26] the longer-term consequences often perpetuate the very problems the person sought to alleviate through self-destructive behavior. In this way, self-destructive behavior triggers a cycle whereby transient reinforcement paves the way for harmful habits. The more an individual self-harms, the more likely they are to continue self-harming.

While self-injurious and suicidal behaviors can occur independently from a psychiatric disorder,[27] they are commonly associated with four principal conditions: borderline personality disorder (BPD); posttraumatic stress disorder (PTSD); major depressive disorder (MDD); and eating disorders (e.g., anorexia nervosa, bulimia nervosa, binge eating).[28]

Borderline Personality Disorder. BPD refers to a longstanding pattern of instability in one’s relationships, self-identity, mood, and behavior. Often, people with BPD use maladaptive coping strategies (e.g., destructive behavior, drug use) that provide temporary consolation yet end up making their problems worse. Approximately 75% of people diagnosed with BPD engage in self-destructive behavior,[29] and 25% of all people who engage in self-destructive behavior meet diagnostic criteria for BPD.[30] The strong link between BPD and self-destructive behavior is likely due to the fact that recurrent self-injury and suicidal behavior are one of the nine diagnostic criteria for BPD. Other diagnostic criteria for BPD include: frantic efforts to avoid abandonment; a pattern of unstable relationships; a persistently unstable self-image; emotional instability; impulsive behavior that jeopardizes one’s physical well-being; feelings of emptiness; and transient paranoid ideation or dissociation. To be diagnosed with BPD, a person must fulfill five of the nine diagnostic criteria. This means there are 151 different ways of meeting criteria for this diagnosis.

Posttraumatic Stress Disorder. People diagnosed with PTSD suffer emotional distress when they re-experience a traumatic event. Although these episodes of re-experiencing the traumatic event are not actually dangerous in and of themselves (i.e., the original threat is no longer present), the person still experiences these memories as threatening and therefore tries to avoid situations that trigger these memories. When PTSD is associated with self-destructive behavior, it is usually because these behaviors can help people temporarily escape emotional distress, albeit at the expense of aggravating problems that make it more difficult to recover from PTSD over the longer term.

Major Depressive Disorder. MDD and other diagnoses involving depressed mood include a range of symptoms such as changes in appetite and/or weight, sleep patterns, energy level, and thinking. People who suffer from MDD and related disorders sometimes engage in self-destructive behaviors as a form of self-punishment, and sometimes use self-destructive behavior to distract from or otherwise temporarily alleviate upsetting thoughts and emotions.

Eating Disorders. Eating disorders include such conditions as anorexia nervosa, bulimia nervosa, and binge eating disorder.[31] Approximately 44% of people who have engaged in self-destructive behavior also meet diagnostic criteria for an eating disorder.[32] Disordered eating by itself would unlikely trigger inadmissibility, the harm being neither sufficiently proximate nor of adequate severity. Yet the high rate of comorbidity with other self-harming behavior makes eating disorders an important warning sign.

II. Inadmissibility findings and waivers.

A. Health screenings

All applicants for immigrant visas are required to undergo a physical and mental examination.[33] Such examinations are not generally required for nonimmigrant visa applicants but may be ordered by a consular officer with “reason to believe” that health-based inadmissibility grounds apply to the alien.[34] Findings made by a panel physician on health inadmissibility issues are binding on consular officers.[35]

Panel physicians characterize the results of an examination as follows:

(1) No apparent defect, disease, or disability;

(2) “Class “A” – a communicable disease of public health significance, immigrant visa applicant vaccination refusal, a physical or mental disorder with harmful behavior or history of such behavior likely to recur, or addiction or abuse of specific substance on the CSA; or

(3) “Class “B” – physical or mental defect, disease, or disability serious in degree or permanent in nature amounting to a substantial departure from normal physical or mental well-being.[36]

Class A findings require the alien be found inadmissible.[37] Class B findings indicate that the alien is not inadmissible on health-related grounds, though the consular officer or USCIS adjudicator may determine whether the medical condition renders the alien inadmissible on other grounds such as public charge.[38] The panel physician may elect to refer an applicant to a “specialist consultant” if the physician is unable to reach a diagnostic conclusion.[39]

Practice pointer. Only a panel physician or civil surgeon has the authority to find a noncitizen inadmissible under a Class A diagnosis. Hence the noncitizen’s own admission to USCIS adjudicator or consular officer concerning harmful behavior associated with mental illness by itself cannot support an adverse Section 212(a)(1)(A)(III) finding.[40] Counsel should carefully examine the medical evaluation to assess whether an adverse finding was actually made.[41] Note that whereas panel physicians generally will not share copies of evaluations with applicants, civil surgeons will generally provide the applicant with an unsealed copy. Given the large number of civil surgeons in most metropolitan areas, advocates may prefer surgeons willing to provide unsealed copies of all reports.

B. Seeking a waiver

A noncitizen inadmissible due to a mental disorder associated with harmful behavior may seek a waiver to overcome such inadmissibility.[42] The procedures for requesting such a waiver are complex.

Regardless of whether the intending immigrant is applying for a visa at a consulate or attempting to adjust status within the U.S., her waiver application will be adjudicated by USCIS.[43] The decision to grant the waiver is discretionary.[44] Unlike waivers for criminal inadmissibility or unlawful presence, the applicant is not required to demonstrate extreme hardship to a qualifying relative. In a consular case, an intending immigrant found inadmissible on mental health related grounds should be instructed by the consulate to file a Form I-601 waiver application with the Nebraska Service Center (NSC).[45] In both adjustment and immigrant visa cases, NSC will adjudicate the waiver following the procedures discussed below. The crux of the waiver application is to demonstrate that the applicant will take adequate steps to reduce the likelihood of self-harm as it relates to her mental illness.

Step (1) – Form I-601 is filed. First, the applicant must submit a medical report, along with her Form I-601, that addresses each of the following issues:

  1. The mental disorder and the behavior associated with the disorder that “poses, has posed or may pose in the future a threat to the property, safety, or welfare” of the applicant or others;
  2. Details of “any hospitalization, institutional care, or other treatment” received in relation to the disorder;
  3. “Findings” regarding the mental condition, “including a detailed prognosis that should specify, based on a reasonable degree of medical certainty, the possibility that the harmful behavior is likely to recur or that other harmful behavior associated with the disorder is likely to occur;” and
  4. “A recommendation concerning treatment that is reasonably available in the United States that can reasonably be expected to significantly reduce the likelihood that the physical or mental disorder will result in harmful behavior in the future.”[46]

If the applicant is “incompetent,” the regulations allow for a family member to submit the Form I-601 on behalf of the applicant.[47] The term incompetent is not defined by reference to any particular legal status or lack thereof. Hence a family member should be able to submit a Form I-601 on behalf of an applicant who is functionally unable to do so, regardless of whether a civil authority has made a formal finding of incompetence such as by appointing a guardian.

Step (2) – Initial review by CDC. USCIS will forward the medical report to the CDC for initial review.[48] The purpose of this initial review is for the CDC to confirm that the individual in fact has a Class A condition. If the CDC determines that the noncitizen does not have a Class A condition, then no waiver is necessary.[49] CDC will typically respond within four weeks,[50] though expedited review is theoretically possible.[51]

Step (3) – Document treatment strategy within the US. If the CDC agrees that the applicant’s condition is Class A, the applicant will be asked to provide documentation of how she will seek treatment for her condition within the U.S.[52] Such documentation is made by completing the Form CDC 4.422-1, which USCIS is instructed to make available to the applicant.[53]

The Form CDC 4.422-1has three parts.[54] The Part I is completed by Department of Health and Human Services Public Health Service (PHS) upon receiving the panel physician’s evaluation of the applicant’s current condition.[55] Part I confirms that the applicant does in fact have a Class A disorder.[56] Part II is completed by “a clinic, hospital, institution, specialized facility, or specialist in the United States approved by the U.S. Public Health Service.”[57] The institution or specialist certifies that he/she will take responsibility for treatment of the intending immigrant.[58] Part III of the form is completed by the applicant or family member, who must explain how the treatment will be paid for.[59]

Step (4) – Second review by CDC and return to USCIS. CDC will review the Form 4.422-1, and if further information is needed will return it to USCIS for issuance of an RFE. [60] If an “appropriate health care provider has been identified,” however, CDC should endorse and return the waiver packet to USCIS.[61] Normally the waiver will be approved by USCIS if CDC has thus endorsed the health care provided.[62] As with any waiver, USCIS has discretion over the decision to grant the application.[63] Yet, the Administrative Appeals Office has overturned waiver denials where CIS failed to defer to the CDC.[64] Specifically, once CDC has determined that it has no objection to approval, CIS should not use the fact of the mental illness itself to deny the waiver.[65] Any terms recommended by CDC will normally be followed by USCIS, though USCIS is not bound by such recommendations.[66] USCIS may impose requirements on the noncitizen that include payment of a bond, or securing the non-citizen’s agreement that she will agree to see a healthcare provider.[67]

Practice pointer. As ever with consular practice, look for consulate-specific procedures on mental health inadmissibility waivers.[68] And avoid discretion at your peril! While the regulations for mental health waivers focus on treatment of the disorder, the client’s equities should be documented as in any waiver case.[69]

The balance of this article seeks to help practitioners understand the psychological issues that would be addressed in such a medical report submitted in support of a Form I-601 waiver.

III. Treating individuals with self-harming behavior

A. Understanding effective treatment

This section summarizes two forms of evidence-based therapy[70] available for mental illnesses typically associated with self-destructive behavior: Dialectical Behavior Therapy (DBT) and Cognitive Behavior Therapy (CBT). As explained below, DBT and CBT have several similarities as well as considerable differences in how they are carried out as well as what disorders they are typically used to treat.

DBT is widely accepted as the most effective form of therapy for reducing the frequency and severity of self-destructive behavior.[71] DBT was originally developed for chronically suicidal women diagnosed with Borderline Personality Disorder.[72] In the last two decades, DBT has gained widespread use for people suffering from a range of problematic behaviors associated with emotional sensitivity, emotional reactivity, and a slow return to emotional baseline.[73] Generally, people reach maximal benefit after participating in DBT from between six months to a full year[74]

DBT consists of individual therapy sessions and concurrent group skills training sessions. Skills training sessions are divided into four modules, each focused on a different set of skills: mindfulness, distress tolerance, emotion regulation, and interpersonal effectiveness. Mindfulness skills help clients learn how to direct their attention effectively, address maladaptive thought processes, and practice self-monitoring and self-regulation. Distress tolerance skills are strategies to manage impulsive or harmful behaviors when faced with upsetting emotions and other life stressors. Emotion regulation skills address mood instability and affective dysregulation, and include strategies for identifying emotions, changing emotions, and reducing emotional vulnerability. Interpersonal effectiveness skills help clients act more effectively in relationships by learning how to get their needs met without violating the rights of others.

In addition to group and individual treatment, DBT involves telephone consultation and a consultation team. In the former, therapists provide brief telephone-based skills coaching to clients between sessions, primarily to help clients use adaptive problem-solving skills in lieu of self-destructive behaviors. In the latter, DBT therapists attend a weekly consultation team meeting designed to ensure they are providing their clients with the best possible therapy.

CBT refers to several different types of therapies that help clients develop more adaptive patterns of thoughts and behaviors. A fundamental assumption of CBT is that our thoughts affect our feelings and actions. Therefore, CBT emphasizes teaching clients how to change their thoughts, as well as how to change the way they respond to their thoughts. CBT therapists often encourage clients to learn how to challenge harmful beliefs they maintain about themselves, others, and the future. As discussed later in this article, research indicates that CBT can be an effective form of therapy for a range of different mental health conditions.

While DBT is strongly influenced by conventional CBT, DBT’s theoretical underpinnings lead to important differences between the two forms of therapy.[75] First of all, DBT places a greater degree of emphasis on suicidal and self-injurious behaviors (what DBT therapists refer to as life-threatening behaviors).[76] These behaviors are considered high priority treatment targets because they not only interfere with a client’s ability to benefit from therapy (e.g., a suicidal client may end up missing therapy due to involuntary hospitalization) but they also interfere with a client practicing more adaptive ways to cope with emotional distress.

Additionally, whereas CBT emphasizes changing thinking and behavior patterns, DBT balances acceptance of current behavior with an understanding that the client’s current behavior is not working for them and therefore needs to change. Another difference is that DBT emphasizes the therapeutic relationship as critical to prevent a client from dropping out of therapy and encourage the client’s progress. DBT’s differences from CBT make DBT an especially relevant intervention for treating people who engage in self-destructive behavior.

B. Treating specific types of disorders.

Certain psychiatric diagnoses are more closely associated with self-destructive behaviors than other psychiatric diagnoses. Often, meeting criteria for one of these diagnoses implies a particular course of treatment that will be most efficacious for reducing the frequency and severity of self-destructive behaviors associated with the mental disorder.

Borderline Personality Disorder. Research indicates that when people are effectively treated for BPD, they are unlikely to relapse.[77] There is robust evidence that DBT is extremely effective treatment for both BPD as well as for reducing the frequency and severity of self-destructive behaviors.[78] Dr. Marsha Linehan and colleagues compared DBT to standard treatment (i.e., non-DBT) for BPD and found that although both forms of therapy helped reduce self-destructive behaviors, DBT was more effective when it came to reducing medical risk associated with self-destructive behaviors.[79]

Left without treatment, one study found that most people (74%) hospitalized and diagnosed with BPD stop meeting diagnostic criteria after six years.[80] Indeed approximately a third (35%) of people hospitalized and diagnosed with BPD may cease meeting diagnostic criteria after just two years.[81] Remarkably, nearly half (49%) of those who had been hospitalized had not relapsed four years later, while 69% still had not relapsed six years later.[82] Although research shows that the majority of BPD symptoms will remit with time alone, treatment typically helps people recover far more quickly than simply letting the clock tick.

Posttraumatic Stress Disorder. The most effective treatment for PTSD is a type of CBT called Prolonged Exposure (PE),[83] which involves helping a client experience upsetting memories and feelings instead of avoiding them. This process allows a client to habituate to the disturbing memories and feelings, and learn that the memories and feelings in and of themselves can be experienced without adverse effects. When a client suffers from PTSD and is also engaging in self-destructive behaviors, the best practice is to combine DBT with PE,[84] and to treat the PTSD only after the client has stopped engaging in self-destructive behaviors.

Major Depressive Disorder. The most well-studied form of therapy for depressed mood is CBT.[85] This treatment has two major emphases. First, CBT involves changing negative thinking patterns such as beliefs about oneself (e.g., I’m unloveable), the world (e.g., everybody thinks I’m awful), and one’s future (e.g., I’ll never get a fair shot in life). Second, CBT involves behavioral activation, where the goal is to become more involved in enjoyable activities that increase one’s opportunity to feel capable and experience positive reinforcement. Some research suggests that the behavioral activation component of CBT works so well that it can help people recover from depression without any focus on changing thinking patterns.[86] These studies indicate that simply changing behavior is enough to change one’s thoughts and feelings.

Interpersonal Therapy (IPT) is another form of treatment that research has shown to be effective for treating depression.[87] In IPT, the therapist focuses on helping their client improve relationships, as opposed to thoughts and behaviors.

Eating Disorders. Generally CBT is the most effective treatment for eating disorders. In CBT for anorexia nervosa, the therapist helps their client reach a stable and healthy body weight, improve self-esteem, learn more adaptive thinking patterns, and improve relationships. Approximately 40% to 60% of clients diagnosed with anorexia nervosa maintain a normal weight following treatment.[88]

In CBT for bulimia nervosa, the therapist helps their client change thinking patterns that lead to purging, establish stable and healthy eating patterns, practice adaptive coping strategies, and develop a relapse prevention plan that will help the client avoid resuming old behavioral patterns. In over fifty studies of people who received CBT for bulimia nervosa, clients experienced an 80% reduction in bingeing and purging during treatment. By the end of treatment, between 40% to 50% of people had ceased bingeing and purging.[89] DBT also shows promise as an effective treatment for bulimia nervosa as well as binge-eating without purging. In fact, one study found that up to 89% of clients had stopped binge-eating by the end of treatment.[90] It is encouraging that DBT has shown such positive treatment outcomes, as that means DBT could be used to treat both the eating disorder as well as the associated self-destructive behaviors.

IV. Practice recommendations for attorneys

We conclude with recommended practices that attorneys can adopt both to identify clients with self-harming behavior that may trigger inadmissibility, and proactive steps to position such clients for a successful waiver application.

Screening clients for self-harming behavior. We recommend that attorneys incorporate basic mental health screening as part of their routine on-boarding process for new clients. Attorneys should systematically inquire about such matters, both during consultations and via intake questionnaires. Attorneys should explain to new clients why they need to know certain information about their mental health history. A client should be asked specifically whether he has ever been diagnosed with a mental health disorder and/or deliberately hurt himself.

If a client discloses a history of self-injurious behavior, suicidal behavior, or has been diagnosed with a mental illness associated with these behaviors,[91] learn: (1) what sort of therapy your client has undergone; (2) when your client participated in therapy; (3) when your client most recently engaged in self-destructive behavior; (4) what circumstances trigger your client to engage in self-destructive behavior; and, (5) what healthy coping strategies your client uses in lieu of self-destructive behavior. Finally, have your client fill out a release of information allowing you to request records from the health professional(s) who provided treatment for this condition.

Proactive steps for clients exhibiting self-harm. What should an attorney do if an immigrant visa or adjustment client exhibits indicia of self-destructive behavior? First, we recommend that the attorney refer the client for evaluation by a clinical psychologist. Most attorneys – including the second author of this article – are not professionally competent to evaluate or diagnose mental illness. The evaluator should be asked to report on four referral questions:

(1) whether the client currently meets diagnostic criteria for any mental disorder under the DSM;

(2) to characterize the nature and severity of any self-harming behavior exhibited by the client to date;

(3) to assess the likelihood of future self-harming behavior by the client; and

(4) whether treatment will be effective to reduce the likelihood of future self-harming behavior.

For a client who meets diagnostic criteria for a mental disorder, the attorney will want to assess the timeline of self-harming behavior. If the behavior occurred within twelve months of the anticipated date of the immigration medical evaluation, the attorney should explain the advantages of delaying the visa or adjustment application.

The attorney should consider advising the client to engage in therapy. Engaging in competent therapy will increase the likelihood that a civil surgeon or panel physician will determine the mental illness is in remission.[92]

Resources for locating qualified therapists practicing DBT or CBT
Behavioral Tech, LLC
http://bit.ly/1C7qZ2N
An organization that provides training to mental health care providers, maintains a searchable directory that lists providers who have completed one of several intensive DBT training programs
Association for Behavioral and Cognitive Therapies

http://www.findCBT.org

Maintains a searchable database that lists CBT therapists (as well as CBT therapists who also provide DBT) across the globe
Also consider consulting a local mental health association, or a local university’s psychology or psychiatry departments.

We urge caution when assessing whether a therapist is a qualified practitioner. Some recommended questions to ask the provider include:

  • “How often do you work with clients who engage in self-destructive behavior?”
  • “What training have you had in treating clients who engage in self-destructive behavior?”
  • “Where does self-destructive behavior fit in the hierarchy of therapy goals?”
  • “In your experience, how many sessions does it take before a client stops engaging in self-destructive behavior?”
  • “What percentage of your clients relapse or need “booster sessions” after therapy ends, and how these sessions are arranged?”

Attorneys who refer clients for clinical assessments should be aware of the features a robust evaluation may expected to contain. The assessment should address the client’s history, present functioning, prognosis, and – if relevant – treatment recommendations. Typical assessment methods may include: a clinical interview;[93] mental status assessment and behavioral observation;[94] symptom inventories;[95] structured or semi-structured interviews;[96] and collateral sources.[97] After completing the assessment, the clinician should write a report summarizing findings and recommendations.

Historical and current self-destructive behavior – as well as urges to engage in self-destructive behavior – should be assessed thoroughly via symptom inventory and semi-structured interview. While there is no standard list of questions a clinician must ask to assess the referral questions described above, the clinician should obtain information including:

  • immediate suicide risk factors;
  • factors that are protective against suicidality;
  • self-destructive behavior methods used;
  • frequency of self-destructive behaviors;
  • triggers for self-destructive behaviors;
  • perceived function of self-destructive behaviors;
  • severity of self-inflicted injuries; and
  • coping strategies used in lieu of self-destructive behavior.[98]

The clinician can use this information, in combination with other information obtained from the assessment, to guide estimates of a client’s immediate, short-term, and lifetime risk for engaging in self-destructive behavior.

These assessments are conventionally conducted in person. However, a clinician may be able to conduct the assessment remotely. Doing so would depend on rules governing the clinician’s ability to practice outside of their jurisdiction, confidentiality concerns about certain communication methods, and the possibility that there may not be computer-based administration protocols available for certain psychological tests the clinician would like to administer. If a client is interested in obtaining a remote assessment, they should contact the clinician with whom they would like to work to determine if this would be possible.


 

[1] John Briere & Eliana Gil, Self-mutilation in clinical and general population samples: Prevalence, correlates, and functions, Vol. 68(4) Amer. J. of Orthopsychiatry, 609, 612 (1998); Thomas F. Klonsky et al., Deliberate self-harm in a non-clinical population: Prevalence and psychological correlates, Vol. 160(8) Amer. J. of Psychiatry, 1501, 1504 (2003); Sarah V. Swannell, et. al, Prevalence of nonsuicidal self-injury in nonclinical samples: Systematic review, meta-analysis and meta-regression, Vol. 44(3) Suicide and Life-Threatening Behavior 273 (2014).

[2] Kim L. Gratz et. al., Risk factors for deliberate self-harm among college students, 72(1) American Journal of Orthopsychiatry, 128, 132 (2002); Sandra C. Paivio & Chantal R. McCulloch, Alexithymia as a mediator between childhood trauma and self injurious behaviors, Vol. 28, No. 3 Child Abuse and Neglect, 339 (2004); Salih S. Zoroglu, et. al, Suicide attempt and self-mutilation among Turkish high school students in relation with abuse, neglect, and dissociation, 57(1) Psychiatry and Clinical Neurosciences 119, 121 (2003).

[3] Kim L. Gratz & Alexander L. Chapman, Freedom from self-harm (2009) (hereinafter Gratz & Chapman (2009)), 2.

[4] Kim L. Gratz, Measurement of deliberate self-harm: Preliminary data on the Deliberate Self-Harm Inventory, Vol. 23(4) J. of Psychopathology & Behav. Assessment 253, 258 (2001); Kim L. Gratz & Alexander L. Chapman, The role of emotional responding and childhood maltreatment in the development and maintenance of deliberate self-harm among male undergraduates, Vol. 8(1) Psych. of Men & Masculinity 1, 7 (2007).

[5] See INA § 212(a)(2)(A)(iii).

[6] Cf. Charles Gordon et al., Immigration Law and Procedure § 63.02 (2015).

[7] Immigration Act of 1882, 22 Stat. 214.

[8] 1903 Amendments, 32 Stat. 1213.

[9] Immigration Act of 1907, 34 Stat. 898.

[10] Emphasis added.

[11] The CDC’s regulations were most recently formally updated through notice and comment rulemaking in 2008. Medical Examination of Aliens – Revisions to Medical Screening Process, 73 Fed. Reg. 58047 (Oct. 6, 2008) (interim final rule); Medical Examination of Aliens – Revisions to Medical Screening Process, 73 Fed. Reg. 62210 (Oct. 20, 2008) (correcting amendments). Cf. 42 C.F.R. § 34 (governing medical examination of aliens). The CDC subsequently updated the Instructions to reflect the most recent revision of the Diagnostic and Statistical Manual. Frequently Asked Questions (FAQ): Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders, http://1.usa.gov/1LMLXay (last visited July 3, 2015). Cf. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, fifth edition (2013) (hereinafter DSM-5).

[12] U.S. Dept. Of Health and Human Services, Technical Instructions for Physical or Mental Disorders With Associated Harmful Behaviors and Substance-Related Disorders (rev’d Feb. 3, 2015) (herein after Panel Physician Technical Instructions), available http://1.usa.gov/1CQOFDC.

[13] U.S. Dept. Of Health and Human Services, Technical Instructions for Physical or Mental Disorders With Associated Harmful Behaviors and Substance-Related Disorders (rev’d Dec. 18, 2013) (hereinafter Civil Surgeon Technical Instructions), available at http://1.usa.gov/1LMMhpO.

[14] USCIS, 8 Policy Manual B.7, available at http://1.usa.gov/1BbxL4X (hereinafter Policy Manual) (mental disorders “are diagnosed according the Diagnostic and Statistical Manual of Mental Disorders (DSM)”).

[15] Civil Surgeon Technical Instructions, supra note 16 at 5; Panel Physician Technical Instructions, supra note 15 at 5. See also 9 FAM 40.11 N11.1(a)(2) (“mental disorders” refers to “conditions that are characterized by alterations in thinking, mood, or behavior (or some combination thereof)”).

[16] Civil Surgeon Technical Instructions, supra note 16 at 5 (emphasis added); Panel Physician Technical Instructions, supra note 15 at 5 (emphasis added).

[17] 9 FAM 40.11 N11.1(a)(2) (“Only mental disorders that are included in the current version of the World Health Organization’s Manual of International Classification of Diseases (ICD) are considered for visa medical exams”). The ICD is available online at http://www.who.int/classifications/icd/en/.

[18] Civil Surgeon Technical Instructions, supra note 16 at 5 (Only physical conditions that are included in the current version of the World Health Organization’s Manual of the International Classification of Diseases (ICD) will be considered for the purpose of this examination”); Panel Physician Technical Instructions, supra note 15 at 5 (same). Whether the ICD’s guidance for mental disorders varies meaningfully from the DSM is an inquiry beyond the scope of this article.

[19] Civil Surgeon Technical Instructions, supra note 16 at 6; Panel Physician Technical Instructions, supra note xx at 6. See 9 FAM 40.11 N11.1 (same).

[20] Civil Surgeon Technical Instructions, supra note 16 at 5; Panel Physician Technical Instructions, supra note 15 at 15. See 9 FAM 40.11 N11.1 (same).

[21] Civil Surgeon Technical Instructions, supra note 16 at 5; Panel Physician Technical Instructions, supra note 15 at 15. 9 FAM 40.11 N11.1(a)(5) (same).

[22] Civil Surgeon Technical Instructions, supra note 16 at 5; Panel Physician Technical Instructions, supra note 15 at 15.

[23]Gratz & Chapman (2009), supra note 6, 11-14.

[24] Alexander L. Chapman & Kim L. Gratz, The borderline personality disorder survival guide: Everything you need to know about living with BPD (2007) (hereinafter Chapman & Gratz, 2007), 96 (hereinafter Chapman & Gratz (2007)).

[25] Milton Z. Brown, et al., Reasons for suicide attempts and nonsuicidal self-injury in women with borderline personality disorder, Vol. 111(1) J. of Abnormal Psych. 198, 199 (2002). Cf. Alexander L. Chapman, et al., Solving the puzzle of deliberate self-harm: The experiential avoidance model, Vol. 44(3) Beh. Research and Therapy 371 (2006).

[26] Cf. Alexander L. Chapman & Katherine L. Dixon-Gordon, Emotional antecedents and consequences of deliberate self-harm and suicide attempts, Vol. 37(5) Suicide and Life Threatening Behavior 543 (2007); Aviva Laye-Gindhu & Kimberly A. Schonert-Reichl, Nonsuicidal self-harm among community adolescents: Understanding the “whats” and “whys” of self-harm, Vol. 34(5) J. of Youth and Adolescence, 447 (2005).

[27] Crucially, “[p]eople can have multiple harmful behaviors that are not associated with a. . . mental disorder,” and only harmful that is associated creates a basis for inadmissibility. Civil Surgeon Technical Instructions, supra note 16 at 6; Panel Physician Technical Instructions, supra note 15 at 6. Some researchers conceptualize self-injurious and suicidal behaviors as mental illnesses in their own right, rather than as correlates or symptoms of other mental disorders. To this effect, the most recent edition of the Diagnostic and Statistical Manual includes “suicidal behavior disorder” and “nonsuicidal self-injury” as proposed conditions for further study. DSM-5, supra note 14, at 801, 803.

[28] The Technical Instructions identify the following disorders as most frequently associated with harmful behaviors generally: major depression; bipolar disorder; schizophrenia; and mental retardation. Civil Surgeon Technical Instructions, supra note 16 at 15; Panel Physician Technical Instructions, supra note 15 at 15. This article, however, specifically addresses individuals engaging in self-harmful behavior.

[29] Gratz & Chapman (2009), supra note 6 at 30.

[30] Margaret S. Andover, et al., Self-mutilation and symptoms of depression, anxiety, and borderline personality disorder, Vol. 35(5) Suicide and Life-Threatening Behavior, 581, 586-588 (2005).

[31] People diagnosed with anorexia nervosa restrict food intake to prevent weight gain. People diagnosed with bulimia nervosa binge-eat and then attempt to eliminate the calories they have consumed by vomiting, taking laxatives, or exercising excessively. People diagnosed with binge eating disorder compulsively eat large amounts of food without trying to compensate for the calories they consumed as is the case in bulimia nervosa.

[32] Caron Zlotnick, et al., Clinical correlates of self-mutilation in a sample of general psychiatric patients, Vol. 187(5) J. of Nervous and Mental Disease 296 (1999). See Gratz & Chapman (2009), supra note 6, at 70-72 (discussing reasons for such comorbidity).

[33] INA § 221(d); 9 FAM 40.11 N3.1. Medical examinations have been authorized since the very first efforts to codify U.S. immigration laws. Act of March 3, 1891, ch. 51-551, 26 Stat. 1084

[34] 9 FAM 40.11 N3.2.

[35] 9 FAM 40.11 N3.1.

[36] 9 FAM 40.11 N7.3 (emphasis added).

[37] 9 FAM 40.11 N7.4-1; 8 Policy Manual B.11(A). See also 9 FAM 40.11 N3.1 (findings of panel physician are binding on COs).

[38] 9 FAM 40.11 N7.4-2; 8 Policy Manual B.11(A).

[39] 9 FAM 40.11 N11.4. Civil Surgeon Technical Instructions, supra note 16 at 18; Panel Physician Technical Instructions, supra note 15 at 19.

[40] Matter of [Redacted], 2013 Immig. Rptr. LEXIS 10228, (AAO Jun. 11, 2013) (“Because section 212(a)(1)(A) of the Act states that all medical-related grounds of inadmissibility are determined ‘in accordance with regulations prescribed by the Secretary of Health and Human Services,’ the applicant’s own admission is not sufficient to uphold a finding of inadmissibility on medical grounds. A medical examination performed by panel physician designated by the Department of State or a civil surgeon designated by the district director is required.”) (citing Hill v. INS, 714 F 2d. 1470 (9th Cir. 1983)).

[41] See, e.g., Matter of [Redacted], 2011 Immig. Rptr. LEXIS 11301, at *30 (AAO Mar. 14, 2011) (“Based on the record, the AAO finds that the applicant is not inadmissible under section 212(a)(1)(A)(iii) of the Act. The record reflects that the panel physician classified the applicant as having a Class B medical condition, Affective Bipolar Disorder, without harmful behavior or history of such behavior unlikely to recur.”); Matter of [Redacted], 2008 Immig. Rptr. LEXIS 16641 (AAO Oct. 14, 2008) (overturning inadmissibility finding where DS-2053 stated the applicant had only a Class B medical condition).

[42] INA § 212(g)(3). If the noncitizen is incompetent to file the waiver application a family member may do so on the noncitizen’s behalf. 8 C.F.R. § 212.7(b)(1).

[43] 9 FAM 40.11 N12.1(b) (Immigrant visa waiver applications in consular cases are adjudicated by USCIS at the Nebraska Service Center (NSC)).

[44] 9 Policy Manual 4.B(5).

[45] 9 FAM 40.11 N12.1(a).

[46] Form I-601 Instructions (rev’d May 22, 2015), p. 10, available at http://1.usa.gov/1FmzPqh; 8 C.F.R. § 212.7(b)(2) (setting forth requirements for report). See also USCIS, Immigrant Waivers; Procedures for Adjudication of Form I-601 For Overseas Adjudication Officers, p. 16 et seq. (Apr. 28, 2009), AILA InfoNet Doc. No. 09061772.

[47] 8 C.F.R. § 212.7(b)(1).

[48] The reviewing officer submits the following documents to the CDC: (1) a cover letter that identifies the adjudicating USCIS office; (2) a copy of the waiver application, though the officer may elect to remove supporting documentation deemed not medically relevant; (3) a copy of the medical report from the panel physician evaluation; (4) any supporting medical report recommending course and prospects of treatment; and (5) copies of all other medical reports, lab results and evaluation, even if not associated with the disorder subject to the waiver application. 9 Policy Manual 4.B(2).

[49] Id.

[50] 9 Policy Manual 4.B(4).

[51] 9 Policy Manual 4.B(3).

[52] 8 C.F.R. § 212.7(b)(2)(ii)

[53] 9 Policy Manual 4.B(4).

[54] id. The officer will issue an RFE, if needed, to obtain this information from the applicant. Id.

[55] See, e.g., Matter of [Redacted, 2012 Immig. Rptr. LEXIS 14975, at *7-8 (AAO Dec. 5, 2012) (explaining parts of the form).

[56] Id.

[57] 8 C.F.R. § 212.7(b)(2)(ii).

[58] See id.

[59] See 8 C.F.R. § 212.7(b)(2)(ii)(B) (requiring affirmation that, “[t]he alien, the alien’s sponsoring family member, or another responsible person has made complete financial arrangements for payment of any charges that may be incurred after arrival for studies, care, training and service”).

[60] 9 Policy Manual 4.B(4).

[61] Id.

[62] 9 Policy Manual 4.B(5).

[63] Id.

[64] Matter of [Redacted] (AAO Aug. 22, 2005), AILA InfoNet Doc. No. 08022074 (“when a [Public Health Service] reviewing official has indicated that PHS has no objection to an applicant’s entry to the United States, and in the absence of current documentation that supports that the applicant’s mental health status poses a threat, CIS may not deem the applicant’s present mental health status to be a negative factor in evaluating an application for a waiver”).

[65] Id.

[66] Id.

[67] 8 C.F.R. § 212.7(b)(3); 9 Policy Manual 4.A.

[68] See, e.g., http://london.usembassy.gov/niv/add_mental.html (last visited March 6, 2015) (requiring personal data form for waiver applicants at London consulate).

[69] See, e.g., Matter of [Redacted], 2011 Immig. Rptr. LEXIS 12609, at *8-9 (AAO Dec. 14, 2011) (in finding appellant eligible for mental health waiver: “The adverse factors are the applicant’s disorder with harmful behavior history, unlawful presence, and unauthorized employment. The favorable factors include the applicant’s U.S. citizen spouse and two daughters, letters attesting to the applicant’s good moral character, and an approved 1-130 Petition.”).

[70] Evidence-based therapy is an intervention whose design is based on the best available research data indicating how and why a particular treatment works for a particular mental health condition.

[71] Cf. Marsha Linehan, Cognitive behavioral treatment of borderline personality disorder (1993) (hereinafter Linehan (1993a)); Marsha Linehan, Skills training manual for treating borderline personality disorder (1993) (hereinafter Linehan (1993b)).

[72] Cf. Marsha Linehan, et al., Cognitive-behavioral treatment of chronically parasuicidal borderline patients, 48 Archives of General Psychiatry 1060 (1991).

[73] Alec L. Miller, et al., Analysis of behavioral skills utilized by suicidal adolescents receiving dialectical behavior therapy, Vol. 7(2) Cognitive and Behav. Practice 183 (2000); Susan Wolpow, et al, Adapting a dialectical behavior therapy (DBT) group for use in a residential program, Vol. 24(2) Psychiatric Rehabilitation J. 135, 138-140 (2000).

[74] Marsha Linehan, et al., Two-year randomized controlled trial and follow-up of dialectical behavior therapy vs. therapy by experts for suicidal behaviors and borderline personality disorder, Vol. 63(7) Archives of Gen. Psychiatry 757, 763-764 (2006) (hereinafter Linehan, et al. 2006)

[75]Cf. Linehan (1993a), supra note 74.

[76] Early on in therapy, DBT therapists often remind their clients: “One of the few groups that will never ever benefit from DBT are dead people.”

[77] Chapman Kim L. Gratz (2007), supra note 27, 63.

[78] Over a dozen randomized clinical trials have compared DBT to other forms of treatment for BPD, and found DBT more effective for reducing the frequency and risk of self-destructive behaviors, improving anger problems, reducing impulsivity, improving relationship problems, and preventing people from dropping out of therapy. Chapman & Gratz (2007), supra note 27 at 153.

[79] Linehan, et al. (2006), supra note 77, at 762.

[80] Mary C. Zanarini, et al., The longitudinal course of borderline psychopathology: Six-year prospective follow-up of the phenomenology of borderline personality disorder, 160 Ame. J. of Psychiatry, 274, 277 (2003).

[81] Id.

[82] These remission rates are more optimistic than those observed for depression and bipolar disorder, which are more likely to relapse during a person’s lifetime. Chapman & Gratz (2007), supra note 27 at 64.

[83] Cf. Edna B. Foa, et al, Effective treatments for PTSD: Practice guidelines from the International Society for Traumatic Stress Studies (2004).

[84] Cf. Melanie S. Harned & Marsha M. Linehan, Integrating Dialectical Behavior Therapy and Prolonged Exposure to treat co-occurring borderline personality disorder and PTSD: Two case studies, 15 Cognitive and Behavioral Practice 263 (2008); Melanie S. Harned, et al., Treating PTSD in suicidal and self-injuring women with borderline personality disorder: Development and preliminary evaluation of a Dialectical Behavior Therapy Prolonged Exposure protocol, Vol. 50(6) Behav. Research and Therapy 381 (2012).

[85] Cf. Aaron Beck, et al., Cognitive therapy of depression (1979).

[86] Sona Dimidjian, et al., Randomized trial of behavioral activation, cognitive therapy, and antidepressant medication in the acute adults with major depression, Vol. 74(4) J. of Consulting and Clinical Psych. 658, 665-667 (2006); Neil S. Jacobson, et al., A component analysis of cognitive-behavioral treatment for depression, Vol. 64(2) J. of Consulting and Clinical Psych. 295 (1996).

[87] Myrna M. Weissman, et al., Comprehensive Guide to Interpersonal Psychotherapy (2000).

[88] Gratz & Chapman (2009), supra note 6 at 73.

[89] Cf. G. Terence Wilson et al., Psychological treatment of eating disorders, Vol. 62(3) Amer. Psychologist, 199-216 (2007).

[90] Debra L. Safer, et al., Dialectical behavior therapy for bulimia nervosa, Vol. 158(4) The Amer. J. of Psychiatry 632, 633 (2004); Christy F. Telch, et al., Dialectical behavior therapy for binge eating disorder, Vol. 69(6) J. of Consulting and Clinical Psych. 1061, 1063 (2001)

[91] For a discussion of disorders commonly associated with self-harming behaviors see Section I.B above.

[92] See Civil Surgeon Technical Instructions, supra note 16 at 15 (“At a minimum, the underlying physical or mental disorder must be either in remission or reliably controlled by medication or other effective treatment”) (emphasis added); Panel Physician Technical Instructions, supra note 15 at 15 (same).

[93] The clinician poses questions to the client to learn current and historical information

[94] For example, observation of factors such as the client’s emotional expression, speech, cognitive ability, physical presentation.

[95] Standardized questionnaires designed to collect information about particular mental illnesses.

[96] Algorithms the clinician follows, often to guide diagnostic decision-making or reach opinions about future risks of engaging in certain behaviors.

[97] Where the clinician obtains information from a third party familiar with the client such as an employer, family member, or previous therapist.

[98] Examples of potentially useful semi-structured interview guidelines can be found at http://blogs.uw.edu/brtc/publications-assessment-instruments/ (last visited July 21, 2015).

What are the immigration consequences of suicidal and self-harming behavior?
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Greg McLawsen

I’m proud to be the founder of Sound Immigration. My job is to work behind the scenes to ensure our clients have an outstanding experience at our firm. I’m passionate about reinventing the practice of law to make it work better for those we serve. I work hard to identify the best available technology to make our firm convenient for clients. I look to other industries, like real estate and the restaurant business, to learn about practice that will help serve our clients better.

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