Another Immigration Case

This post deals with an immigration case that is currently under litigation. I have omitted the names of the principles and some of the factual information in order to protect the identities of the parties. Please take no reference from this article that I am referring to any particular parties. This post is about a case that is rather typical but it is based on real-life circumstances.

Earlier this year, I received a call from an immigration attorney wanting polygraph tests. This attorney hoped to support his client’s statements regarding why they got married. His clients contended that they married for love and other typical matrimonial reasons. This attorney hoped that the polygraph tests would help prove to immigration authorities that his clients did not get married to evade immigration regulations or laws.

This particular couple met each other over six years ago and continually dated until around 2009 when they got married. Like most couples they had various arguments and brief separations from each other. The unusual part of their case was they both were immigrants from other countries. The wife was an immigrant from Europe and her husband was immigrant from Pakistan.

For the rest of this article, I will refer to this couple as husband and wife to protect their identities. The wife in this case was naturalized as a US citizen around 2003. The wife had been recently divorced from her US citizen husband when she met her current husband. He had entered the country on a student visa but later dropped out of school and re-applied for a visa to work for a family owned business.

As most people know, immigration rules take a lot of time. The husband was trying to comply with everything but at some point was denied an immigration work visa. He was soon to be deported. His then girlfriend, soon to become his wife, agreed to marry him quickly before his deportation. As you might imagine, immigration thought that this marriage was being consummated to evade deportation regulations. The couple insisted, that the timing of their plans to get married might have been influenced by the deportation order but they were getting married because they love each other. The timing of the marriage could not have been worse from the standpoint of immigration authorities.

The relevant questions on their respective polygraph tests were about:did this couple get married for love or was it to evade immigration law. Both the husband and wife took polygraph tests and passed. Polygraph supported the husband’s and wife’s contentions that they were married for love. This case is currently being adjudicated and when I have an outcome of the case I’ll post it on this blog.

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Use of Polygraph in Immigration Cases

The Immigration Case
 Based on a true polygraph case

 

An ever increasing number of immigration cases are utilizing polygraph tests to determine the immigrant’s truthfulness about deportation issues.   This article is based on a resent polygraph examination.  I have not included and identifying information about the immigrant.  No one should infer or claim that this is about any pending case.  The following described polygraph case is about an immigrant who pled guilty to a drug charge and also lied to the sentencing judge under oath.  He told the judge he was a U.S. citizen.  Somehow U.S. Immigration Services found out about his guilty plea conviction and his perjured testimony. 

The immigrant claimed when confronted that he lied but was acting on advised from his attorney.  He made the false claim of U.S. Citizenship because he was directed to do so by counsel.  During the hearing the judge asked the emigrant directly if he was a U.S. citizen two times. Both times, the immigrant claim to be a citizen.

Then a few months ago immigration authorities came knocking at the immigrant’s door. The emigrant was incarcerated in a local jail without bail pending an investigation and possible deportation.  An interesting relevant polygraph issue for testing developed because of this case.  It was the opinion of the immigrant’s attorney that if his client was telling the truth about being instructed to lie in court, immigration Services’ decision on deportation might be effected.  The current defense attorney believed that if his client passed a polygraph, Immigration Services might look more favorable toward his client and the fact that he passed the polygraph would help to keep him from being deported.   

The first polygraph examination session with this emigrant didn’t go very well.   This examiner found the emigrant to be highly nervous and unable to sit still. After collecting three polygraph charts the test was discontinued.  No opinion could be obtained from the collected chart.   The following week this examiner again conducted another polygraph session with the immigrant.  During this second session the immigrant continued to claim that during his initial meeting with his counsel he had a discussion regarding his immigration status and that his attorney told him to lie to the court if asked about his immigration status.

During the second session with this examinee, the polygraph charts were collected without any notable anomalies on the immigrant’s polygraph charts, movements, deep breathing, etc. Upon evaluating the polygraph charts however I found indications of deception.  It is my opinion and belief that this immigrant was lying when he said that his attorney told him to lie in court.  I believe that he is making up the allegation against the attorney as a defense to avoid deportation. Based on the polygraph analysis, I do not believe that the immigrant was telling the truth on this relevant issue.  

In this particular case the emigrant was unfortunately lying but had he been telling the truth the U.S. Immigration Service and U.S. Attorney were willing to accept the polygraph results in support of the immigrant’s claims about what his defense attorney told him. It would have been interesting to see what a truthful polygraph result would have had is this case.  

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Why I don’t do polygraph tests in client’s home!

Recently there was a true story printed in the Virginia Polygraph Association’s New Letter, April 2012 Addition, about what can go wrong when you do a polygraph test in a client’s home. The full article can be read at http://vapolygraph-org.webs.com/vpanewsletter.htm.
I don’t do polygraph tests in client’s homes. This article, although extreme, points out why an examiner should not do tests in a client’s home especially in fidelity issue cases.

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Lie Detector Test in Maryland

If you want to use or take a lie detector test in Maryland you should know what laws apply.  There are no laws, regulations or licensing regulating polygraph examiners. However, Maryland has a very old law mostly dealing with employment.  Under Maryland law, an employer may not require or demand a polygraph test as a condition of employment, prospective employment, or continued employment.  Maryland even makes employers provide the follow disclaimer.

State of Maryland Polygraph Law Disclaimer

This disclosure is required by the laws of the State of Maryland for all applicants for employment.

“Under Maryland Law an employer may not require or demand any applicant for employment, prospective employee, or any current employee, to submit to, or take, a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. Any employer who violates this provision is guilty of a misdemeanor and subject to a fine not to exceed $100.”

However the same law exempts Federal, State and local governments. So if you are looking for a job within Maryland in the public sector you may be required to take a polygraph.  Each level of government may have different requirements so check the conditions and requirements for employment carefully.   If you are applying for a job in law enforcement you will most likely be required to take some kind of lie detector test.

There are also Federal laws that apply to employers in the State of   Maryland.  This law is known as the American Polygraph Protection Act or EPPA.  Follow this link for EPPA laws.

Who may take a lie detector or polygraph tests?

1.  Anyone who wants to volunteer to take a test other than where prohibited by law. Polygraph tests are given or used with the treatment of sexual offenders.  People on parole or probation that are enrolled in mandated sex offender treatment.  These types of examinations are administered by both the Maryland State Police and private examiners.

2.  Defendants accused of crimes may elect to take a polygraph given by law enforcement or private examiners.  Results are not generally admitted into evidence at the time of trial but results may be very helpful to a defense attorney during discussion or negotiations with prosecutors. I’ll blog more about criminal defense polygraph tests later.

4.  The lie detector is now also commonly used to verify a person’s claim of fidelity.

If you would like more information call me at my office located at 111 North Potomac Street Hagerstown, Maryland 21740.  You also may follow me on Tweeter and other social networks.

 

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How Polygraph Examiners Protect Against Errors

Polygraph testing has been shown to be very accurate – with between 85% and 95% correct results – but errors do sometimes occur. There are many reasons why this can be the case, such as failure to properly prepare the test subject for the exam, improper question formulation, or a misreading of the physiological data on the polygraph charts.

When an error occurs, it is called either a “false positive” or a “false negative.” A false positive means that a truthful test subject is reported as deceptive, and a false negative means that a deceptive test subject is reported as truthful.

It is very unlikely for a test subject to change a result from “deceptive” to “truthful,” and most attempts to deceive an exam will result in an inconclusive result. The best way to ensure that your exam is accurate is to disclose any psychological or physical conditions you have. The examiner will be aware if it is possible for the condition to affect the results and can take it in account when administering the test.

Examiners recognize that any error can be damaging, so they are trained to look for attempts to control breathing or heart rate, impairment due to drugs or alcohol, or other factors that may affect results upon meeting the subject and during the pre-test. Additional protective procedures that are taken to ensure an unbiased exam include:

  • an assessment of the examinee’s emotional state
  • medical information about the examinee’s physical condition
  • specialized tests to identify the overly responsive examinee and to calm the overly nervous
  • control questions to evaluate the examinee’s response capabilities
  • factual analysis of the case information
  • a pre-test interview and detailed review of the questions
  • quality control reviews

If you believe that an incorrect reading was given, you have recourse. First, you can request a second examination be made or retain a different examiner to get a second opinion. You can also file a complaint with the state licensing board (if your state has one) and a complaint with the Department of Labor under EPPA. Additionally, if the polygraph examiner is a member of the American Polygraph Association, you can request the assistance of the organization.

Sources:
American Polygraph Association
The Polygraph Guy – FAQs

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Can You Beat the Polygraph Test

I came across the following link on You Tube and I think it is right on point.   Click on the short video and see for yourself:  http://www.youtube.com/watch?v=gt3ninRIsSs&feature=related

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Why You Can’t “Beat” the Polygraph Test

One of the major concerns for any polygraph test is accuracy. Whether you are taking the test yourself or waiting on the results of someone else’s test, you want to ensure that there are no factors that get in the way of a correct result. For this reason, polygraph examiners receive training in spotting attempts to “trick” the exam, and they also take steps to ensure that outside factors, such as medications, illegal drugs, psychological conditions, physical conditions, and the emotional state of the test subject, do not affect the ultimate results. Here are answers to some common concerns that clients express before taking an exam.

Can nervousness make me appear guilty when I’m not?

No. Being nervous about taking an exam is common, whether you plan to lie or tell the truth, but if you are feeling nervous, you will be nervous throughout the test. If you are lying or telling the truth for each question, your internal body reaction will be specific for that answer, so your nervousness and this reaction will appear differently on the charts.

Does high blood pressure affect the results?

No. Blood pressure is one of the physiological reactions that is measured during the polygraph exam, but having high blood pressure will not affect the results. Just like with nervousness, your blood pressure will appear high throughout the exam. But if you are taking medication for your high blood pressure, it’s in your best interest to disclose this to your examiner so he or she can evaluate its effect on the test.

Can you take drugs to “beat” the exam?

No. Contrary to some claims, anti-depressants such as Lithium, Prozac, Valium, Ritalin, or Xanax will not trick the machine. During the pre-test process, the examiner will notice skewed results and can determine whether or not the polygraph can be accurately given while the subject is on the drugs. In most cases where drugs are used illegally in an attempt to “beat” the test, the examiner will give an “inconclusive” result and may recommend that a drug test be given before a second exam.

Should I stop taking medications before the exam?

If you are on medication prescribed by a doctor, you should continue to use them as you normally do, but disclose this information to the examiner. The effects of the drugs should not affect the results of the exam, but the examiner will be aware in case he or she has any concerns about accuracy.

Can the test subject use pain to attempt to beat the exam?

They can try, but examiners are aware that people attempt to fool the test by self-inflicting pain, such as pricking themselves with a tack, and are on the look out for any suspicious behaviors or movements. Additionally, most often the subject’s deceptive responses will create more measurable responses than the pain does during other questions.

Trained polygraph examiners take protective measures to ensure that the exam is unbiased, which is why it’s so important to ensure that you hire a polygraph examiner who has received proper training and is a member of a recognized organization, such as the APA, NPA, or a local polygraph association.

In my next blog, I’ll explain the protective procedures that polygraph examiners take and also the recourses available if you believe that your polygraph exam was incorrect.

Sources:
The Polygraph Examiner
American Polygraph Association
Accredited Polygraph Services – FAQs
The Polygraph Guy – FAQs

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How Accurate Is a Polygraph Test?

If you do a quick search on the internet to find out the accuracy of polygraph testing, you’ll find a wide range of figures – as low as 61% and as high as 100% – although most reputable sources will report somewhere between 85% and 95%. So why is there such a variation in the figures reported?

For one, the studies are conducted differently. Some polygraph testing methods have proven more effective than others, yet some studies include all types of approaches, even those that may be considered out-dated, in their results. Another factor that can affect the level of accuracy includes the level of training the polygraph examiner has received.

But one of the biggest reasons for the variation in the figures is how the results are calculated. Critics often classify inconclusive tests as “errors,” but an inconclusive result simply means that the examiner was not able to make a definite diagnosis, meaning that he or she could not say for certain whether or not the test subject was lying. Most often in these cases, a second polygraph exam is done at a later time.

To understand how this can affect the accuracy rates that are reported, consider this example: 10 polygraph exams are given, and the examiner is correct 7 times, is wrong 1 time, and has 2 inconclusive results. If you consider the 8 definitive results, 7 were correct, giving you an accuracy rate of 87.5%. But if you consider the inconclusive results to be errors, then the accuracy rate drops to 70% – with 10 exams and 7 correct decisions.

Here are a few figures from reputable studies to consider:

  • The National Academy of Science’s 2003 analysis of the 30 most recent polygraph data sets found an overall accuracy of 85 percent, and their analysis of seven field studies involving specific incidents found a median accuracy of 89 percent.
  • The Journal of General Psychology looked at 41 criminal cases in 1996 and found that control-question tests were 93 to 96% accurate.
  • In a survey of police agencies in the United States, over 90% expressed either moderate or high confidence in their polygraph screening program, and 80% of them reported that in their experience the accuracy of the testing ranged between 86% – 100%.

Even though polygraph testing is very reliable, there are sometimes errors, and some people are concerned that those being examined can use methods to “beat” the test. There are many steps that polygraph examiners take to ensure that this is not the case, which I will discuss in my next blog.

Sources:
American Polygraph Association
Telling the Truth about Lie Detectors – USA Today

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Why Membership in a Polygraph Professional Organization Is Important

If you are looking for a polygraph expert, one of the first things you should look for is that they have a membership with a professional organization. This is important because in many states there are no laws on licensing polygraph examiners, so that means anyone can buy the equipment and claim to be an examiner. But just having a machine isn’t enough to get accurate results. You need a trained professional who knows how to appropriately administer the test and evaluate the results.

As a member in “good standing” with these professional organizations, polygraph examiners are required to continue their education, which means they will be up to date on the latest technological developments, and must pass a criminal background check. Additionally, the organizations set up rules and regulations for how the polygraph is conducted and a code of ethics which members must follow.

American Polygraph Association (APA)

Established in 1966, the APA has grown into the leading professional polygraph organization in the world with more than 2,800 members who administer hundreds of thousands of exams every year. Their mission is to provide “a valid and reliable means to verify the truth and establish the highest standards of moral, ethical, and professional conduct in the polygraph field.” To become a member, you must complete hundreds of hours of coursework at an approved school as well as an internship. Once you have joined, you must engage in annual continuing education and training.

National Polygraph Association (NPA)

Dr. Chris Gugas, who started his polygraph career with the OSS during World War II, founded the organization in March of 1989, and the first national seminar was held by the group in 1990. The organization began with the mission to overturn the 1988 federal decision known as the Employee Polygraph Protection Act, but grew into something more than that, and they are pledged to “identifying and eliminating any unqualified persons from our profession.” Today they work to improve the capabilities of their members by promoting education, research, advanced training, and by shared experiences. Members are required to complete training at an approved school and must participate in continued education after joining.

American Association of Police Polygraphists (AAPP)

In 1976, William Taylor, then the commander of the Texas Department of Public Safety polygraph unit, saw the need for a national organization of police polygraphists. Today the organization conducts seminars for law enforcement polygraph examiners and requires its members to participate in continuing education.

Maryland Polygraph Association (MPA)

Like national organizations, local polygraph organizations such as the MPA offer opportunities for examiners to stay up to date on the latest developments in polygraph science and connect with other examiners nearby. Membership for the MPA is open to anyone who qualifies under the American Polygraph Association guidelines.

Sources:
American Polygraph Association
National Polygraph Association
American Association of Police Polygraphists
Maryland Polygraph Association

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How Much Does a Polygraph Test Cost?

If you are looking for a polygraph examiner, one of your primary concerns is likely the cost. You will find professionals offering a wide range of prices, but generally a specific-issue polygraph exam costs between $500 and $1,500.

Fees charged by the same polygraph examiner can vary based on the complexity of the issue being tested, the type of test that will be conducted, and travel time for the examiner. Usually, the test itself will take between 2 and 4 hours, which includes a detailed pretest interview, collection of charts, an analysis of the polygraph charts, and a comprehensive written report.

You should also be aware that your test may come up as “inconclusive” for a variety of reasons. This doesn’t mean that you were lying, but it’s also not proof that you were telling the truth. In these cases, many people wish to get tested again, so you may want to find out how much your polygraph examiner will charge for retesting.

Be wary of someone who is charging significantly less than competitors. You may be getting a deal, or you may be getting someone who is not as qualified. The best way to ensure you are getting a trained professional is to ask for certification of their schooling and for proof of membership in a polygraph organization such as the American Polygraph Association or the National Polygraph Association. You should also take into consideration how many years of experience the examiner has.

Typically, I charge between $650 and $850, depending on travel time and the circumstances of the polygraph exam. To get a quote, you can contact me at (301) 791-7039 or contact me through this website.

Sources
Assured Polygraph Services, Inc.
Maryland Institute of Criminal Justice
Holland Polygraph Services

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