July 25, 2010

IV. Identifying Mental Disability in the Courtroom

It’s just because I’m sick…. If I had that hearing again, I would like to explain to the judge [that] it’s not because I’m a bad person. When I was on my medication, I wasn’t in any trouble…. Sometimes it’s like the world is closing in on me…. Everything I worked for, the judge just took it away.
—Paul D. (pseudonym), Florence Service Processing Center, Florence, AZ, January 6, 201o.
[S]ince I have been classified as disabled I have been struggling with these entities that work through external devices. They have communication with me via an apparatus in outer space. They enter my mind when they try to make a connection with the United States and in that sense they invade my privacy. They use me as a guinea pig and they know how I’m doing and when I’m doing it.
—Pacifico G. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

Why Mental Disability Matters

How does a person with paranoid schizophrenia explain a credible fear of returning when they also are having delusional or irrational thoughts?
—Dr. Judy Eidelson, psychologist, Philadelphia, PA, February 16, 2010.

One of the primary reasons why mental disabilities matter in the courtroom is because the impairments can be so severe that those who have them do not understand what is happening to them, or what is at stake in the hearings they must attend. For example, Human Rights Watch met people who did not know their date or place of birth; were confused about why they were in detention; and were unsure how long they had been in a detention facility.

For example, one woman was unable to understand a single question asked of her.[54] She stared into space during the interview, shook her head repeatedly, and rocked nervously in her chair. The interview was eventually terminated because it was not clear if she had granted consent. In another case, a non-citizen explained his strong belief that the immigration court was directly linked to a “company” that had allegedly stolen wages from him.[55] Yet another man could not verbalize answers to many questions, or tell Human Rights Watch what he said to the judge. He shook his head and looked blankly at the researcher when asked if he knew what would happen when he was deported.[56] Asked why he should stay in the US, Fernando C., an LPR from Mexico, said that he had told the judge he should stay in the US because, “…I got shot here in the US so I wasn’t going to go [to Mexico] with a bullet in my head … I was shot here [points to chin] and here [points to forehead]. I think I must have died because I remember I saw children with wings.”[57]

Individuals with mental disabilities also risk making statements in court and to immigration officers that are against their interests, without the ability to understand or mitigate the consequences. For example, Mamawa P., a refugee from Liberia, told Human Rights Watch that after being abused by her roommate in the US, resulting in head trauma and losing her job in Kentucky, she approached immigration officers and asked to be deported. ICE officers took her into custody and sent her to a hospital for psychiatric care for five weeks.[58] According to Mamawa P.:

It was a mistake I made to go to immigration and ask to be sent back to my country. Now that my frustration is going down, I don’t want to go back … I’ve been in detention for four months and I never committed any crime. It’s just because I told them my problems.[59]

Some people with mental disabilities may make compromised decisions about deportation even when they have strong claims to remain in the US—including by agreeing to deportation in order to avoid ongoing detention. Such “voluntary” decisions to be deported may not be reliable when someone has a significant mental disability, and are particularly problematic when there is no lawyer.

“I’m thinking of just signing the deportation order because asylum will take too long. I’m ready to sign the deportation order because I want to get out,” said Leonardo D., a non-citizen from Cuba who had been diagnosed with schizophrenia and was living in a mental health care facility for five years prior to his arrest by ICE in December 2009.[60] Several detainees with mental disabilities told Human Rights Watch they would sign “whatever” or take deportation just to get out of the detention facility. In some cases these individuals did not appear to understand that deportation meant leaving the US.

There are several documented cases in which a US citizen with a mental disability has been deported.[61] In 2000, Sharon McKnight, a US citizen with cognitive disabilities, was arrested by immigration authorities returning to New York after visiting her family in Jamaica and deported through expedited removal procedures when immigration authorities suspected her passport was fraudulent.[62] In May 2007, Pedro Guzman, a 29 year old US citizen with developmental disabilities, was apprehended by ICE at a county jail in California where he was serving a sentence for trespassing and deported to Mexico. Guzman was lost in Mexico for almost three months before he was found and able to return to his family in California.[63] In December 2008, US citizen Mark Lyttle, diagnosed with bipolar disorder and developmental disabilities, was deported to Mexico (and from there to Honduras and then Guatemala.) It took four months for Lyttle to return to the US; ICE officials maintain that Lyttle signed a statement indicating he was a Mexican national.[64] Human Rights Watch interviewed three individuals with then-unverified claims to US citizenship. Two men, Michael A. and Steve S., both claimed to be US citizens, and the government’s proof of alienage[65] against each of them was uncertain and inconsistent.[66] A third interviewee may have a valid claim for US citizenship according to his attorneys.[67]

In addition, mental disability may undermine claims to asylum in the United States, or to other relief available under the Convention against Torture, which rely on the applicant providing “credible” testimony to support claims to stay in the country.[68] If the testimony is inconsistent, or not in accordance with current country conditions, the court can find the testimony not credible and the asylum-seeker will be denied asylum.[69] Many individuals with mental disabilities may be unable to provide consistent and credible testimony.

Many represented individuals interviewed for this report were applying for relief from deportation under the Convention against Torture on the basis they would face persecution by police and others because of their mental disability; would not be able to receive necessary mental health treatment; or would be forced into a psychiatric facility with abysmal and dangerous conditions if deported to the country of origin. Human Rights Watch documented three cases where an asylum officer found that a non-citizen with a mental disability could not provide a credible and consistent account of his or her fear of forcible return.[70] For example, Cesar J., was unable to provide his own name, those of his parents, or cite his place of birth, and frequently answered questions with entirely unrelated responses.

Asylum officer: What are [your] parents name [sic]?
CJ: I don’t know ... I understand my mother was from France and my father was from India. I did not know anything about them and I went to New York. And 15 years later I met people who told me they were my parents. And it was written down on the birth certificate, but it was not accepted in Texas.
Asylum officer: Why didn’t you ever tell immigration you were really born in Brownsville and had a different name?
CJ: Because I quit because a judge wanted to return me to my sex as a woman and I got mad.
Asylum officer: So you had been a woman and the judge wanted to return you to being a woman?
CJ: That was what the judge told me and all my life I had been a man so I got mad. He told me that I was born a woman. And as a matter of fact the [sic] wanted me to go live in Dallas, Texas, and I refused.
Asylum officer: Who wanted you to go live in Dallas, Texas?
CJ: My family gave me as a gift all the states within Texas, but I did not want that.[71]

Cesar J. also recounted being the victim of gang rape and a murder in Mexico, where he had previously lived: “They attempted to change my blood. They came and killed me at once and I ended up being another person,” he said. At his subsequent credible fear interview, Cesar said his medication was causing visual hallucinations: “I see things at times now, revelations and things like memories, but only sometimes.” The asylum officer found Cesar’s testimony not credible with regard to past mistreatment, but said Cesar could establish a reasonable possibility of future persecution “on account of his being perceived to be a homosexual, due to his being HIV+.”[72] Despite this determination, which would require further court proceedings to finally determine legal status, Cesar accepted voluntary departure to Mexico.[73]

In another case, Michael A. claimed to be a US citizen whose extended family was killed in Nigeria. Asked by an asylum officer why he feared deportation to Nigeria, Michael said he would be tortured: “I don’t know why they want to torture me. I’m a rich man. I’m god. They want to have me remove the plants from heaven to earth. Jay-Z and R-Kelly are some of them.”[74] At another point in the credible fear interview, Michael claimed to hear his dead wife and President Obama speaking to him.[75] The asylum officer wrote to reviewing authorities:

Applicant’s testimony was not credible because it was implausible. His testimony was implausible because it was delusional. It should be noted that applicant appears to suffer from psychosis. Therefore, this calls into question the entire credibility of his claim. Moreover, even though applicant testified that he suffers from no physical or mental conditions, USCIS records indicate that he was on anti-psychotic medications as recently as March 2009.[76]

The officer observed in a separate memorandum to the IJ and DHS attorney that Michael was at risk of persecution and maltreatment on account of his mental disabilities if returned to Nigeria and should be allowed to present claims for relief to the immigration court.[77] Despite the concerns raised by the asylum officer, an immigration court ordered Michael A. deported to Nigeria in April 2010.[78]

Beyond the asylum context, the existence of a mental disability is relevant to how a judge reviews the merits of a non-citizen’s claim that he or she should be allowed to remain in the United States. For example, an LPR or non-LPR applying for cancellation of removal in immigration court must provide evidence about his or her “good moral character” and the hardship that deportation would cause to his or her legal permanent resident or US citizen family members.[79] Although immigration judges cannot overturn a criminal conviction, the fact that a non-citizen’s criminal history is related to a mental disability, is relevant in considering a person’s character and prospects for rehabilitation. As attorney Raha Jorjani explained:

In cases where judges have discretion, it should matter that someone is mentally incapacitated where two of the elements [of “good moral character”]—remorse and culpability—are affected by their mental disability.[80] Moreover, it should affect the judge’s view of the hardship that a person will experience if returned to their country and forced to start a new life, possibly without any mental health care.[81]

For some individuals with mental disabilities, collecting and presenting relevant biographical and factual evidence may be impracticable without support. For example, an LPR who is entitled to discretionary relief from deportation must show at least five years lawful residence in the United States, continuous residence for at least seven continuous years, and that he or she has not committed a crime considered to be an aggravated felony under immigration law.[82]

Identifying Disability in Immigration Court

Immigration court can be an overwhelming experience, irrespective of disability. Given the nature of the claims raised in immigration proceedings, it is predictable that some individuals in immigration court may have previous experiences with trauma, such as post-traumatic stress syndrome (PTSD), which may even be triggered by the courtroom experience.[83]

For example, Alex K., an LPR and refugee from the former Soviet Union with schizophrenia, broke down in court, began screaming that he wanted to be deported, and was forcibly medicated in the courthouse. Alex’s doctor, in court to testify on his behalf, told the judge:

Right now he’s in a very regressed state of mind. He’s in the throes of a panic attack along with depression which makes him feel horribly anxious…. And he is sitting in the room with his hands over his head, he’s crying, his eyes are markedly bloodshot, which is typical of a very progressed state, and I have to bear in mind that this is a man who is abused when he was a young boy. And he is reacting as if the system is doing this all over again, only it’s a different system and he just wants to run and he feels totally hopeless, and he can’t see any point in going on.[84]

Despite this stressful environment and the prevalence of people with mental disabilities, immigration courts are not designed or equipped to protect, recognize or accommodate the needs of vulnerable individuals in proceedings.[85]

A number of factors, explored in greater detail below, contribute to the difficulty of identifying disability in immigration court, including a lack of obvious symptoms; reliance on self-identification; lack of records documenting mental illness; and lack of training for judges and other court officers when it comes to identifying and working with people who have mental disabilities.

Lack of Obvious Symptoms

Many mental disabilities may not be immediately apparent; and even more recognizable forms of mental disability may not manifest symptoms in court. As Attorney Christina Powers notes, “Unless they are actually yelling at you or not participating, a person with mental illness won’t be recognized.”[86] As a result, judges may not recognize that an individual is struggling to understand immigration court proceedings, or has a mental disability which affects his or her comprehension.

Reliance on Self-Identification

The immigration detention system and immigration courts rely on individuals self-identifying if they have a mental disability. However, as one psychiatrist observed, in many cases “[p]eople don’t know if they are mentally ill or not; they are not going to be the best recorders of their condition.”[87] People with certain types of mental disabilities, or who have not been formally diagnosed and received treatment for a mental disability, may not be able to recognize, identify, and explain their disability. Human Rights Watch interviewed some individuals with documented mental disabilities who denied having a disability and/or resisted being defined as someone with a mental disability.

For example, Marco C., an undocumented young man from El Salvador who saw his family killed by gang members, told Human Rights Watch that he did not suffer from any mental health difficulties or anxiety.[88] However, his attorney later informed Human Rights Watch that Marco experienced severe post-traumatic stress syndrome, including vivid nightmares and anxiety, and could not provide a linear narrative to his attorneys.[89] Javier F. from Mexico did not want to share his medical records with Human Rights Watch “because if I do those records will say that I am crazy and I do not want that because you are very intelligent….”[90]

Edgar S., a victim of gang violence in Honduras, told Human Rights Watch that he saw a psychiatrist but had no mental health problems: “They [ICE] sent me to a psychiatric center and gave me medicine so I wouldn’t be able to defend myself. They are taking advantage of me … immigration is making it look like I’m crazy. I’m not crazy.”[91] Edgar’s medical files, which Human Rights Watch acquired through a Freedom of Information Act (FOIA) request, said that at age 16, Edgar “could only spell a few words such as ‘mama’ and his name,” was “in the mentally deficient range” in math and word recognition, and presented as “a young person who has been victimized most of his life.”[92]

 

Lack of Records

Many individuals with mental disabilities do not have a recorded history of mental disability or documented history of treatment. Even where records do exist, they may be difficult to trace, depending on whether they followed the person from prison into detention and in transfers between detention centers. As advocates and psychiatrists told Human Rights Watch, immigration courts are more likely to recognize and accept that a person has a mental disability if they see extensive documentation from community treatment, hospitalization, or evidence from the person’s prison and criminal record. One psychiatrist who has testified in immigration court said: “Often the judge will say, ‘if there is a mental health problem, why aren’t you going to treatment? Why do you just claim to have a mental health problem here in court?’”[93]

Although many individuals with mental disabilities come into immigration detention from the criminal justice system, many will not have a recorded history of mental disability or documented history of treatment. Also, where those records do exist, they may be difficult to access depending on whether the records followed the person from prison into detention and in transfers between detention centers.

Individuals with cognitive disabilities, which are not associated with the disruptive behaviors associated with some mental impairments, may not elicit the attention of ICE medical staff. As lawyer and clinical professor Troy Elder noted, “For many, contact with the court system might be the first opportunity for diagnosis.”[94] Even individuals who are aware that they have a disability that affects their functioning, understanding, or participation in daily activities may not identify themselves to ICE or to the courts. Lionel C., an LPR from Jamaica with an unspecified mental disability and slow affect, told Human Rights Watch, “Sometimes I can’t remember things … it gets lost … I have trouble understanding things but I’ve never asked to see a doctor about that because they want money.”[95] Pacifico G., an LPR from Mexico with schizophrenia who says he is in contact with entities from outer space, told Human Rights Watch that he didn’t seek medical help when he was homeless: “I spent years under the bridge trying to figure out what type of system I was in contact with, trying to find myself and find where my feet were.”[96]

While identifying non-citizens with mental disabilities may in some instances be challenging, advocates repeatedly noted that ICE trial attorneys do not raise the issue of the respondent’s mental disability even where they have such records in the non-citizen’s file.[97] John Pollock, who observed immigration court proceedings in Boston for the National Lawyers Guild, recalled that in at least one case it was only after the judge remarked that the respondent appeared to have a mental disability that the ICE attorney revealed the respondent had indeed previously been found incompetent in a criminal court.[98]

Lack of Training

A fourth difficulty when it comes to identifying mental disability in immigration court is the lack of training for judges and other court officers when it comes to identifying and working with people who have mental disabilities. One immigration judge said that in the past two decades, the Executive Office for Immigration Review (EOIR) has only organized two to three trainings—including one in August 2009—for immigration judges on recognizing people with mental disabilities.[99] A psychiatrist observed that for people with PTSD, presenting testimony requires a tricky “balancing act” because “if the person is totally shut down, the judge may assume the person is apathetic. If the respondent is sobbing on the stand, the judge accuses them of making a scene.”[100]

Even if a judge is trained to recognize a mental disability, the proceedings can make identification difficult. The first time a person sees a judge is at the master calendar hearing (the first hearing in immigration proceedings). These hearings are often only a few minutes long and offer little opportunity for judges to observe and question, or for the individuals themselves to raise their disability and request assistance. The individuals interviewed for this report generally said they were not asked questions at the master calendar hearing.

In many cases, master calendar and individual hearings are conducted by tele-video, with the individual in proceedings in a detention center, while the attorney (if there is one), the judge, and DHS government attorney are in a courtroom. There are frequent complaints about the quality of the video equipment, and the consequent difficulties in understanding what is being said. “On the TV, I can’t understand nothing [the judge] says at all,” said Mike C., who has a diagnosed cognitive disability.[101] Moreover, it may be difficult for a judge to recognize that a non-citizen has a mental disability when he or she appears over video. An attorney in San Diego, California observed that while video-conferencing was “commonly used for court hearings” in the city, “for some individuals who suffer from mental illnesses and experience auditory hallucinations, for example, this may not be appropriate.”[102]

Stigma and its Legal Consequences

When people know you have mental illness, people don’t see you the same.
—Christo R. (pseudonym), Port Isabel Detention Center, Los Fresnos, Texas, January 19.

In some cases, the stigma of mental disability may prevent individuals from self-identifying in a detention facility or immigration court. Yuri S., a refugee from the former Soviet Union who later became an LPR, at first didn’t tell his lawyer about the sexual assault he endured as a prisoner of war in Afghanistan, and said that for years he had difficulty recognizing his PTSD: “You don’t want to admit it when you have this problem but then you have to.... I was having nightmares, flashbacks.... I didn’t tell the judge about the PTSD. He’s not really interested.”[103] Yuri’s attorney observed that while his client is “very high functioning,” it was difficult for him to testify about his mental disability:

[T]he very things that he needs to testify about are going to exacerbate his mental illness because he has PTSD. There are biological reasons [a desire not to experience stress or physical reactions to stress] for which he would be suppressing issues that he might need assistance to express.… There were a lot of things that he just didn’t want to relive and face in the process. For a lot of people, left to themselves, they wouldn’t have the will or the ability to face these things.[104]

Even where an individual has an attorney, he or she may be reluctant to share intimate details of his or her life, traumatic experiences, or mental health conditions that are a source of shame.

Psychologist Judy Eidelson noted that a central feature of PTSD is avoiding reminders of the trauma experience, and as a result people with PTSD have difficulty constructing a compelling case for relief:

In the application they often leave off the part of their story that would best establish their claim. And it’s hard when you don’t trust the authorities. Often it is late in the case when they are able to talk about what happened, and the government accuses them of making it up.[105]

 Attorneys Matthew Green and Jesse Evans-Schroeder told Human Rights Watch that they did not know about the mental health problems or sexual abuse suffered by Nat, a female client, until Evans-Schroeder, a female attorney, joined the legal team. Even then Nat only discussed details of her impairment and past experiences late in the relationship.[106] “That’s the issue in working with traumatized clients—you don’t always get the facts when it’s convenient,” said Green.[107] Although Nat’s attorneys had a psychiatric evaluation completed and introduced as new evidence, they met resistance from ICE trial attorneys in getting continuances to collect and present these new claims. Even after working with her attorneys for months, Nat was uncomfortable testifying in court about traumatic events. However, her attorneys presented this evidence in the record, and the judge granted relief.[108]

Individuals with mental disabilities may legitimately fear punitive consequences if they reveal their mental disabilities to the immigration court. Lawyer Carmen Chavez observed, “People might be afraid to self-identify because they think it will affect their chances of staying here.”[109] Similarly, Dr. Eidelson observed, “A lot of women are afraid that their psychological factors will be used against them—to have their kids taken away, for example.”[110]

In another example, Jorge G., a 36-year-old LPR, originally from Mexico, was diagnosed with severe cognitive disabilities.[111] Jorge had lived in the United States since a young age, had LPR parents and both US citizen and LPR siblings in California, and was facing deportation based on convictions for driving without a license, drug possession and violation of probation. Jorge G. proceeded without a lawyer in his immigration hearings, and the immigration judge (IJ) never inquired into Jorge’s competency or recognized that Jorge had a cognitive disability. In this case, Jorge was fortunate to find an attorney, Delia Salvatierra, to represent him on appeal, who was able to get him a psychiatric evaluation (his first evaluation ever).

One of the central tensions in this case, Salvatierra observed, was her client’s unwillingness to talk about his cognitive disability, which had shaped his life but had never been officially diagnosed until the mental health evaluation for immigration court: “He didn’t want to tell the court about the issue that has hurt him his entire life. The last thing he wants to tell the judge is that there is something wrong with him, even though that is the one thing that might have helped.”[112]

Indeed, there is some evidence to suggest that there is some basis to fears of repercussions if people in immigration proceedings reveal they have mental disabilities. For example, Human Rights Watch documented at least two incidents where ICE raised a non-citizen’s disability to argue for deportation. In the case of Edwin B., a refugee from Liberia, the government affirmatively used evidence that Edwin had a mental disability to prove he was not a credible witness in his hearing and relief should be denied accordingly.[113] In another case, Pacifico G., an LPR from Mexico with schizophrenia, admitted in court that he heard voices, which sometimes told him to harm other people. The trial attorney used this evidence to argue that Pacifico was dangerous and should be denied relief, even though Pacifico has never attempted or committed a violent crime, and testified that he would never act upon what the voices told him.[114] Pacifico told Human Rights Watch that his disability was used against him:

[T]he DA [sic] says that I am 100 percent individually responsible for my actions. That I am completely accountable for what I do. He made me sound like I was a murderer or made it look like I was a potential murderer. That I could kill at any second…. The legal system exposes me as if I am the one to blame, but I don’t think this is the fact. I did my best for 17 years to be a person under control and they make it seem like I am a person who cannot control myself. As if I am a threat to society.[115]

Where individuals are afraid that disclosing mental disabilities will have repercussions for their legal claims, there is a disincentive to report mental health needs and to seek medical attention while in detention. Says attorney James Preis, “Sharing information is important to get good services but there needs [sic] to be protections so that information doesn’t get misused in violation of due process.”[116]

At present, there is no transparent system in place to protect this medical information and separate its use for treatment purposes from misuse in court. Since ICE oversees both the detention and prosecution of non-citizens accused of immigration violations, there is a real danger that medical information can be used against a detainee.

[54]Human Rights Watch interview with Carla F. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

[55]Human Rights Watch interview with Javier F. (pseudonym), Florence Service Processing Center, Florence, AZ, January 6, 2010.

[56]Human Rights Watch interview with Peter G. (pseudonym), Krome Service Processing Center, Miami, FL, March 1, 2010.

[57]Human Rights Watch interview with Fernando C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[58]Human Rights Watch interview with Mamawa P. (pseudonym), Kenosha County Jail, Kenosha, WI, February 3, 2010.

[59]Ibid.

[60]Human Rights Watch interview with Leonardo D. (pseudonym), Port Isabel, Los Fresnos, TX, January 19, 2010.

[61]Testimony of Rachel E. Rosenbloom, Human Rights Fellow and Supervising Attorney, Center for Human Rights and International Justice at Boston College, Before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, Committee on the Judiciary, United States House of Representatives, Hearing on Problems with ICE Interrogation, Detention, and Removal Procedures, February 13, 2008.

[62]Karen Musalo, “Expedited Removal,” Human Rights, American Bar Association, 2001, http://www.abanet.org/irr/hr/winter01/musalo.html (accessed July 7, 2010).

[63]“Illegally Deported U.S. Citizen Pedro Guzman Found After Nearly Three Months in Mexico,” American Civil Liberties Union of Southern California, ACLU-SC press release August 7, 2007, http://www.aclu-sc.org/releases/view/102548 (accessed July 6, 2010).

[64]KristinCollins, “Federal officials wrongly deport N.C. man,” The Charlotte Observer, April 30, 2009.

[65] The term “alienage” used in the immigration and Nationality Act refers to a person’s legal status as a non-citizen.

[66]Human Rights Watch interview with attorney in Arizona, January 6, 2010; Human Rights Watch telephone interview with Megan Bremer, February 17, 2010.

[67]Human Rights Watch interview with Bardis Vakili, Casa Cornelia Law Center, San Diego, CA, February 8, 2010.

[68]8 U.S.C. Section 1158(b)(1)(B)(ii); INA Section 101(a)(42)(A); Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989); 8 C.F.R. Section 1208.13(a); Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997).

[69]Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997); According to the EOIR Benchbook for Immigration Judges, “if the applicant’s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding may provide a sufficient basis for denial of CAT relief.” Department of Justice, Executive Office for Immigration Review, Benchbook for Immigration Judges: http://www.justice.gov/eoir/vll/benchbook/index.html (accessed April 20, 2010).

[70]Human Rights Watch interview with attorney Rachel Wilson, Tucson, AZ, January 8, 2010; Human Rights Watch interview with Megan Bremer, February 17, 2010; Human Rights Watch interview with Alexsa Alonzo, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010. Ms. Wilson’s client ultimately won asylum in a full hearing before an immigration judge after obtaining Ms. Wilson’s services and getting a psychological evaluation.

[71]Positive Reasonable Fear Determination, Broward Transitional Center, Pompano Beach, FL, September 17, 2009 (on file with Human Rights Watch).

[72]Ibid. (italics in original).

[73]Human Rights Watch interview with Alexsa Alonza, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010.

[74]Record of Negative Reasonable Fear Finding and Request for Review by Immigration Judge, June 18, 2009 (on file with Human Rights Watch).

[75]Ibid.

[76]Reasonable fear determination of Michael A. (pseudonym), June 15, 2009 (on file with Human Rights Watch).

[77]Memorandum to Immigration Judge/District Counsel from Allan Boggio, Asylum Officer, June 15, 2009 (on file with Human Rights Watch).

[78]Human Rights Watch email correspondence with Megan Bremer, Pennsylvania Immigration Resource Center, April 22, 2010.

[79]8 U.S.C. Section 1229b. Although good moral character and hardship are supposedly only applicable to non-permanent residents, immigration judges inevitably incorporate both factors into assessing the claims of permanent residents. Margot Mendelson, “Constructing America: Mythmaking in US Immigration Courts,” Yale Law Journal, vol. 119 (2010). Moreover, Mendelson points to the BIA decision in In re C.V.T., finding that factors such as good character and hardship are applicable to the favorable exercise of discretion for legal permanent residents. In re C.V.T., 22 I. & N. Dec. 7, 11 (BIA 1998). The immigration judge’s role is to balance the positive factors in favor of allowing a non-citizen to stay in the US with the negative factors supporting deportation. See In Matter of C-V-T-, 22 I. & N. Dec. 7,11 (BIA 1998); Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978).

[80]8 USC. Section 1229b.

[81]Human Rights Watch telephone interview with Raja Jorjani, University of California, Davis, School of Law, December 22, 2009.

[82]8 U.S.C. Section 1229b.

[83]Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA, February 16, 2010.

[84]Transcript of December 22, 2004, hearing of Alex K. (pseudonym) (on file with Human Rights Watch).

[85]“Accommodations” as used in this report refers forms of assistance and support given to persons with disabilities to ensure their equal participation in court. For example, Dr. Denise Berte suggested that accommodations for a person with a mental disability in immigration court could include requiring judges to alter the pacing of the questions, to take time to checkin periodically with the individual to make sure he or she is following what is happening, to explain who all the persons in the courtroom are, and, if a person has post-traumatic stress syndrome, consider removing guards and the gavel from the courtroom. Human Rights Watch interview with Dr. Denise Berte, Philadelphia, PA, February 15, 2010.

[86]Human Rights Watch telephone interview with Christina Powers, Pittsburg, PA, December 7, 2010.

[87]Human Rights Watch interview with Dr. Denise Berte, Lutheran Immigrants Rights Service, Philadelphia, PA, February 15, 2010.

[88]Human Rights Watch interview with Marco C. (pseudonym), McHenry County Jail, McHenry, IL, February 2, 2010.

[89]Human Rights Watch interview with Eleni Wolfe-Roubatis, Chicago, IL, February 2, 2010.

[90]Human Rights Watch interview with Javier F. (pseudonym), Florence Service Processing Center, Florence, AZ, January 6, 2010.

[91]Human Rights Watch interview with Edgar S. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[92]Evaluation of Edgar S. (pseudonym), Children’s Hospital Los Angeles, High Risk Youth Program, December 14, 1998 (acquired through Freedom of Information Request, on file with Human Rights Watch).

[93]Human Rights Watch interview with Dr. Denise Berte, LIRS, Philadelphia, PA, February 15, 2010.

[94]Human Rights Watch telephone interview with Troy Elder, Miami, FL, December 2, 2009.

[95]Human Rights Watch interview with Lionel C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[96]Human Rights Watch interview with Pacifico G. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

[97] Human Rights Watch interview with Alexsa Alonzo, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010; Human Rights Watch telephone interview with John Pollock, National Lawyers Guild, Baltimore, MD, December 7, 2009; Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA, February 16, 2010.; Human Rights Watch telephone interview with Christina Powers, Pittsburgh, PA, December 7, 2009.

[98]Human Rights Watch telephone interview with John Pollock, December 7, 2009, discussing a case witnessed in the Boston immigration court, November 2003.

[99]Human Rights Watch interview with Immigration Judge 2 (name withheld), December 4, 2009.

[100]Human Rights Watch interview with Dr. Denise Berte, Philadelphia, PA, February 15, 2010.

[101]Human Rights Watch interview with Mike C. (pseudonym), Glades County Jail, Glades, FL, March 3, 2010.

[102]Human Rights Watch interview with Elizabeth Sweet, ABA Immigration project, San Diego, CA, February 9, 2010.

[103]Human Rights Watch interview with Yuri S. (pseudonym), York Country Prison, February 17, 2010.

[104]Human Rights Watch telephone interview with Megan Bremer, Pennsylvania Immigration Resource Center, York, PA, April 2, 2010.

[105]Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA, February 16, 2010.

[106]Human Right Watch interview with Jesse Evans-Schroeder and Matthew Green, Tucson, AZ, January 8, 2010.

[107]Human Rights Watch interview with Matthew Green, Tucson, AZ, January 8, 2010.

[108]Human Rights Watch interview with Jesse Evans-Schroeder, Tucson, AZ, January 8, 2010.

[109]Human Rights Watch interview with Carmen Chavez, Casa Cornelia Law Center, San Diego, CA, February 8, 2010.

[110]Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA February 16, 2010.

[111] Psychological report of Jorge G. (pseudonym), October 2009 (on file with Human Rights Watch).

[112]Human Rights Watch interview with Delia Salvatierra, Florence, AZ, January 7, 2010; The Board of Immigration Appeals has since remanded the case to the IJ in light of this new evidence. Board of Immigration Appeals, In re Jorge G. (pseudonym), March 15, 2010, (“We find that a remand is appropriate so the Immigration Judge can evaluate the respondent’s new evidence in the first instance…”) (on file with Human Rights Watch).

[113]Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

[114]Human Rights Watch interview with Pacifico G.’s (pseudonym) attorney (name withheld), January 6, 2010.

[115] Human Rights Watch interview with Pacifico G. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

[116] Human Rights Watch interview with James Preis, Mental Health Services of Los Angeles, Los Angeles, CA, February 12, 2010, and email correspondence, April 13, 2010.