Development & Aid, Headlines, Health, Human Rights, Migration & Refugees, North America

Mentally Ill Adrift in U.S. Immigration System

Esther Banales

UNITED NATIONS, Jul 25 2010 (IPS) - Mentally disabled legal permanent residents of the United States and asylum seekers face indefinite detention, erroneous deportation, and unfair hearings in U.S. courts, according to a new joint report from two leading human rights organisations.

The report released Sunday, and co-authored by Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU), points out that the shoddy treatment not only violates the human rights of affected individuals but also offends both U.S. and international standards of justice.

Non-citizens with mental disabilities “with a lawful basis for remaining in the U.S.” are unable to represent themselves and, in 61 percent of cases, do not have a lawyer when facing the judicial process.

The findings also apply in some cases to U.S. citizens who were detained by Immigration and Customs Enforcement (ICE) and deported to countries they did not know. Some detainees did not understand what deportation meant or could not remember where they were born.

“Both agencies [ICE and the Department of Justice (DOJ)] are very interested in this issue and have several new initiatives planned,” Sarah Mehta, Aryeh Neier fellow at HRW and author of the report, told IPS. “We have been in regular contact about upcoming reforms and initiatives.”

Gillian Brigham, a public affairs officer for ICE, told IPS that the report’s recommendations are helpful and ICE realises the need for improvement, but declined to comment on specific allegations made in the report.

Nevertheless, a memorandum issued Jun. 30 by Assistant Secretary John Morton and addressed to “all ICE employees” reads: “Absent extraordinary circumstances or the requirements of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing….”

Individuals are also protected by federal regulations from being arrested by ICE in psychiatric hospitals. However, according to the report, attorneys “recorded two cases in which ICE arrested a non-citizen at a state hospital and forcibly removed him to an immigration detention centre.”

Based on 104 interviews, the report asserts that “in many cases, the ICE attorney prosecuting the case did not inform the judge when a non-citizen facing deportation had a diagnosed or suspected mental disability” and sometimes “refused to supply information from evaluations to the court, even when the court ordered them to do so.”

Many of the detainees mentioned in the report were arrested for drug use, shoplifting, or trespassing after failing to take their medication. The ones that committed more serious crimes were “homeless or unable to hold a job”.

Mehta explained she could not offer percentages in this regard as she wasn’t able to get “corroborating evidence” in many cases, because some detainees did not know the charges against them or were unable to explain them. “At least two people said they had been convicted of some form of assault,” she said.

The research carried out by HRW and the ACLU brings to light the legal limbo non-citizens, in rare cases, fall into when they cannot be deported. In these instances they are “labeled ‘specially dangerous’ due to his or her mental disability and left in detention interminably.”

In addition, a number of factors can prevent a court from identifying whether an individual is disabled, as the report explains. These include a lack of obvious symptoms, reliance of the court on self-identification of the illness (sometimes individuals are not aware they are mentally ill), lack of a recorded history of mental disability, and lack of training of judges and officers in identifying it.

The report recommends that immigration judges be granted legal authority to appoint counsel that would protect the individual’s right to a fair hearing and refers to the Immigration Judge Benchbook, which “encourages immigration judges to reach out to pro bono attorneys to secure representation for non-citizens.”

Sometimes, however, this is not enough. “In cases where no accommodation will enable a person with mental disabilities to proceed effectively in court or ensure a just and accurate result, immigration judges need power to terminate proceedings,” the report reads.

Phyllis Coven, acting director of the Office of Detention Policy and Planning in ICE, told IPS that the agency is currently piloting a risk assessment tool in Washington and Baltimore that will help identify members of vulnerable groups, such as mentally disabled persons, and connect them with mental health treatment centres.

“The report has interesting recommendations,” Coven said. She added that they were working with DOJ to identify which measures could be taken in order to address the findings of the report.

Regarding international law, the U.S. is a party to the Convention of the Rights of the Persons with Disabilities (CRPD) since 2009 but has not yet ratified it.

“The CRPD was signed by the [Barack] Obama administration on Jul. 30 but it has not been sent to the Senate for advice and consent yet,” Jamil Dakwar, director of the Human Rights Programme, at ACLU told IPS. “My understanding is that the administration is finishing an inter-agency review of the treaty provisions before they decide their course of action.”

“ACLU is a member of the large coalition coordinated by the U.S International Council on Disabilities that is advocating for CRPD ratification,” Dakwar explained.

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