July 25, 2010

VI. Violations of the Right to be Free from Arbitrary Detention

I don’t know why I have to be here.
—Huynh B. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

Legal Standards Requiring Freedom from Arbitrary Detention

The rights to liberty and to be free from arbitrary detention are central tenets of human rights law.

The International Covenant on Civil and Political Rights (ICCPR), which is binding law in the United States, provides that everyone has the right to liberty and must have an opportunity to challenge deprivation of liberty before a court.[216] The Human Rights Committee, which monitors compliance with the ICCPR, states that this right applies to all deprivations of liberty, including immigration detention or confinement on account of mental impairment.[217] The Convention on the Rights of Persons with Disabilities further requires that persons with mental disabilities, on an equal basis with others, “are not deprived of their liberty unlawfully or arbitrarily.”[218]

US immigration law and policy violate international law, and subject non-citizens with mental disabilities to arbitrary and prolonged detention through mandatory detention laws; protracted court hearings during which most non-citizens stay in detention; and prolonged and indefinite detention of non-citizens who have already received a final order of removal.

The United Nations Working Group on Arbitrary Detention recognizes “the sovereign right of states to regulate migration.” However, it also cautions that “immigration detention should gradually be abolished…. If there has to be administrative detention, the principle of proportionality requires it to be a last resort.”[219] The Human Rights Committee has also addressed immigration detention and declared that detention is arbitrary “if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.”[220] This means that immigration detention should only be used in those cases in which legitimate government interests cannot be fulfilled through any other means. Moreover, detaining persons with mental disabilities contravenes international and domestic law requiring that such individuals can access treatment and live in the community.[221] Under current US immigration law—and in violation of human rights law—detention is the default, even though alternatives to detention exist for non-citizens facing deportation. Also in violation of human rights and US law, many immigration detainees are not allowed to be released to the community to receive treatment and care during immigration proceedings.

International human rights law binding on the United States is clear that legal proceedings should not involve unnecessary delay in their final resolution. The Human Rights Committee has explained the right to a fair trial without delay “relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered…. “[222] The standards are relevant to immigration proceedings, where a person is detained, even though they were geared towards criminal defendants who face deprivation of liberty at a trial where he or she may be acquitted and released. The ICCPR states in Article 9.3:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.[223]

US law violates this international standard where non-citizens with mental disabilities are subject to prolonged detention due to inflexible detention policies during court proceedings. These individuals languish in illegal detention with no end in sight because immigration courts are not equipped to handle cases where a person with mental disability cannot represent themselves, and often cannot order release in the interim.

Finally, human rights law recognizes that detention must have a legal basis and justification, and that its “nature and duration” must be related to its purpose.[224] Under international law, a person is entitled to have a judicial authority promptly review their detention, and to be represented at such a hearing.[225] Detention becomes arbitrary under human rights law when it “manifestly cannot be linked to any legal basis.”[226] Governments cannot create regulations to authorize detention that would be otherwise disproportionate or unjust.[227] The Human Rights Committee explicitly stated that meaningful review of the “lawfulness of detention” under article 9, paragraph 4 of the ICCPR “must include the possibility of ordering release, [and] is not limited to mere compliance of the detention with domestic law.”[228]

US immigration law—in violation of international law— permits indefinite detention of non-citizens in unique circumstances after they have received a final deportation order from an immigration court. US law authorizes that a non-citizen who has been ordered removed from the US be detained for a period of time “reasonably necessary” to effectuate removal and to ensure that the individual is not a security or flight risk while awaiting deportation.[229] However, as US law acknowledges, the government’s need to prevent flight is a “weak or nonexistent” justification for continued detention where removal “seems a remote possibility at best,” and danger by itself is insufficient to justify prolonged and indefinite detention.[230] Still, US law on detention after a final order of removal does permit indefinite detention of persons with mental disabilities who are either classified as “specially dangerous” or accused of “obstructing” deportation. Because non-citizens with mental disabilities have no right to an appointed lawyer, these individuals may languish in detention without help to challenge their indefinite detention, or the possibility of review.

Inflexible Detention Policies

In 1952, the Supreme Court deemed detention “necessarily” a part of the deportation procedure.[231] Since then, ICE’s reliance on detention, particularly mandatory detention, has increased. In 1996, ICE detained less than 10,000 people a day;[232] as of September 1, 2009, 31,075 people were in ICE detention, 20,510 (66 percent) of whom were subject to mandatory detention.[233]

In 1996, the US Congress introduced sweeping changes to US immigration law that made many non-citizens, including LPRs, subject to mandatory detention, including if they have past convictions for a variety of offenses, including non-violent ones such as theft and drug possession.[234] Once subject to mandatory detention, non-citizens cannot be released on bond, even if there are medical or mental health concerns. Although ICE officers may have authority to use discretion to release individuals with mental disabilities from detention during their immigration hearings, this possibility is not apparent from a strict reading of the mandatory detention statute; and to the extent that discretion does exist, it is only rarely exercised.

Approximately 66 percent (20,509) of detainees were subject to mandatory detention as of September 2009, according to ICE.[235] Such detention is meant to ensure that the most violent criminal offenders are detained throughout their immigration court hearings. But data from September 1, 2009, shows that only 5.6 percent of the total detained population had committed violent crimes.[236] Ironically, this is happening at a time when the criminal justice system is moving away from a focus on incarceration, to diverting people to “problem-solving courts” like mental health and drug courts.[237]

It is in the interest of justice, court efficiency, and reducing detention costs that non-citizens with mental disabilities are in the best position possible to participate in their cases. This is sometimes best achieved if they participate in proceedings while they receive mental health treatment in the community, and live near their families or in residential treatment centers, as several interviewees had been doing when ICE arrested them. However, US mandatory detention laws mean that they often found themselves in detention facilities, far from their families and mental health care providers. Many individuals interviewed after release from detention said their conditions had deteriorated while there, and that they were unable to participate in court, leading to delays in court hearings and sometimes, mistaken statements against their own interest (for example, saying they wanted to be deported and later regretting it.)

Denzel S., an LPR with schizophrenia, was living in New York with his family when ICE arrested him and transferred him to a facility in south Texas. By the time Human Rights Watch interviewed Denzel, ICE had sent him to a Texas hospital for emergency care on at least four occasions. As a result, he had missed multiple court hearings.[238]

The first time was when I tried to hang myself because the voices kept telling me to…. The second time [I was taken to the hospital] was when I was banging on the door and my hands were bruised and swollen. They told me I needed to go back to the hospital where there were people like me.... Here I’m on lockdown 23 hours a day which just makes the voices much worse. And when there is too much noise, I start hearing voices ... I would like to go back to the hospital.[239]

Peter G., a farmer worker from Jamaica with paranoid schizophrenia who overstayed his work visa, was living in a group home when ICE arrested him. According to Peter’s attorney, ICE officers immediately took his client to a hospital because he was virtually non-responsive and needed continued medical attention at the time of his arrest.[240] In both these cases, and in many others, it would have been just and efficient for ICE to refrain from detaining these individuals in the first place, particularly where there is no flight risk.

According to an ICE memorandum, its officers are allowed to exercise discretion, and can abstain from detaining an individual “in cases of extreme or severe medical concern.”[241] However, on its face, the mandatory detention statute leaves unclear whether persons subject to mandatory detention remain eligible for discretionary release, leading to confusion and inconsistencies amongst ICE field offices.

Even outside mandatory detention circumstances, research indicates that some people with mental disabilities are being unnecessarily detained.[242] Interviews conducted for this report in New York indicate that ICE sometimes apprehends and detains non-citizens who have been found incapacitated to stand trial in New York criminal court and ordered committed to a psychiatric care facility.[243]

Involuntary admission to a psychiatric care facility raises its own concerns under international human rights law. Of particular relevance to this report, however, is ICE’s decision to arrest and detain a non-citizen, found incompetent to stand trial by a criminal court or ordered to receive treatment at a psychiatric facility—a decision that appears to depend on whether ICE is confident it will be able to apprehend the individual once treatment ends. For example, a non-citizen with a felony charge might not be detained by ICE (but rather permitted to receive treatment at a secure psychiatric care facility), whereas someone with a misdemeanor is likely to be arrested by ICE as soon as the court orders them to treatment because of the concern that the non-citizen will be sent to a less secure facility.[244] This approach contradicts ICE’s own description of its enforcement goals, which are to prioritize the most serious criminals for deportation.[245]

While legislative reforms might better address policies and procedures on the detention of persons with mental disabilities, ICE is taking some steps to reconsider its practices at the administrative level—as suggested by the 2009 evaluation of immigration detention policies and practices. Conducted by Dr. Dora Schriro, the evaluation recommended that ICE develop “requisite management tools and informational systems to detain and supervise aliens in a setting consistent with assessed risk.”[246]

For example, on June 30, 2010, ICE released a new memorandum on its priorities in the arrest, detention and deportation of non-citizens.[247] The new guidance notes that ICE officers should not detain non-citizens who have serious mental disabilities and are not subject to mandatory detention: in cases where the person is subject to mandatory detention, ICE officers should “contact their local ICE Office of Chief Counsel for guidance.”[248] However, this guidance is weak, has limited enforceability, and still permits mandatory detention to be the default, even for vulnerable populations.

As of July 14, 2010, ICE was working on improving its detention decision-making. Representatives from the immigration advocacy community are working with the agency to develop a “risk assessment tool” that would take a non-citizen’s vulnerabilities—for example, mental health treatment needs—into account when ICE decides whether detention is necessary in a particular case. This nascent tool, along with other policies being developed by ICE in consultation with advocates on alternatives to detention and detention reform, will eventually be used to determine whether and in what type of facility or under what alternative arrangements a vulnerable person should be held.

In accordance with human rights law prohibiting arbitrary, unnecessary and prolonged detention, the risk assessment tool should operate to divert persons with significant mental disabilities from detention, irrespective of whether or not they are subject to mandatory detention. ICE needs to clarify that a non-citizen with a mental disability should not be detained, unless there is evidence that a person poses a security threat or flight risk.

While ICE will need to develop new and nuanced screening tools to appropriately identify individuals with mental disabilities, many individuals arriving in detention can easily be identified as having a mental disability based on current medication, documented history of psychiatric care, social security disability benefits, prior findings of incompetence in criminal court, jail and prison records of medical attention, and medication prescriptions. Such background information should be reviewed at intake so that staff can consider diversion or release from detention, or appropriate placement if detention is needed. However, it should remain separate from the individual’s A-file and the prosecutorial branch of the Department of Homeland Security to protect the individual’s privacy and to ensure that ICE does not use this information against the individual during the hearing. This process requires the input of all stakeholders, particularly persons with disabilities themselves, legal and immigration experts, and medical professionals.

Developing robust protections and enhanced screening at the front end of detention can reduce the number of people with mental disabilities placed there at the outset. Periodic review of detainees must also identify those with mental disabilities whose conditions deteriorate, or who begin to experience a mental disability, in detention. At each periodic review the burden must be on the authorities to justify the need for continuing detention. Greater regulatory guidance and legal protections must be enacted to ensure that persons with mental disabilities are not lost in detention, or indefinitely detained during or after immigration proceedings.

Failures to Provide Efficient Proceedings and to Limit Detention

Immigration courts now handle more cases, which take longer to pass through the system, than ever before.

Transactional Records Access Clearinghouse’s (TRAC) May 2010 data shows that immigration courts—already overwhelmed and backed up in case management—have experienced a 30.4 percent increase in pending cases since 2008 (an increase of six percent since TRAC’s March report). The average time that pending cases now wait in immigration court is currently at a record high of 443 days.[249]

Such delays are predictable when the person facing deportation cannot represent their own interests or is undergoing treatment; there are no limits on detention; and attorneys and immigration judges—who have no authority to release individuals subject to mandatory detention—lack guidance on how to proceed with such cases.

 For example, detainees and immigration lawyers told Human Rights Watch that delays often occurred when IJs issued multiple continuances so that the respondent could find an attorney—a challenging task for any detainee, let alone one with a mental disability operating without an official referral system.

For example, Christopher A., a non-citizen from Kenya with bipolar disorder who had been detained for ten months when interviewed, said that he had had “four or five” court dates without a lawyer and “desperately” needed one. “The judge said if I don’t have a lawyer in April he will just have to make a decision,” Christopher A. said.[250]

Delays also happen when judges attempt to explain proceedings to respondents who do not have legal representation to help them.[251] In other situations, cases have been delayed to allow a competency evaluation to be produced, or a “guardian ad litem” appointed.[252] Moreover, a merits hearing—where all the legal and factual issues in a case are presented— can take several months and require intensive fact-finding, particularly if the person in proceedings has a mental disability and cannot provide his or her lawyer with relevant information. Proceedings are also delayed when a respondent cannot proceed due to medication, or is mentally unfit to respond to legal charges. Some individuals said they had missed immigration court dates when receiving treatment in psychiatric care facilities.

Of particular concern are cases where non-citizens win their cases before an immigration judge, but are detained during appeals brought by the government. An ICE guidance memorandum from 2004 confirmed the on-going policy of releasing individuals granted asylum or withholding of removal when ICE attorneys appealed the case to the Board of Immigration Appeals (BIA).[253] But compliance with this policy is, at best, inconsistent.[254] Even LPRs with family in the US are subject to continued detention when the government appeals a favorable decision for the detainee. Human Rights Watch documented one case where an LPR from the Philippines who had been in the US since the age of four or five, won relief from deportation on December 7, 2009, on the grounds that her mental impairment and history of sexual victimization meant she was vulnerable to persecution and sexual exploitation if returned to the Philippines.[255] The woman, who attempted suicide while in immigration detention, was still there as of July 7, 2010, because the government appealed the grant of relief to the BIA.[256]

The inability of IJs to provide safeguards in court—for example, by appointing a lawyer—is exacerbated by the absence of firm temporal limits on detention during immigration hearings. In Demore v. Kim, the US Supreme Court upheld mandatory detention of certain non-citizens convicted of particular crimes, but only “for the brief period necessary for their removal proceedings,” a period the court described as approximately 45 days for the 85 percent of cases in which an individual did not appeal an IJ’s decision, and an additional four months for those who appealed to the BIA.[257] But the case did not establish a firm limit for how long an individual can be detained during immigration proceedings.

Fifteen of the thirty-two individuals who gave Human Rights Watch a date that they entered immigration detention had been held more than six months, thus exceeding the “brief period” anticipated by the Supreme Court in Demore. Nine of these individuals had been detained for over one year, two for 18 months, one for two years, and one for over four years. The individuals interviewed for this report were in different stages of their proceedings; some had not seen a judge at all; others were detained pending appeals before the BIA or the court of appeals – a process that can take months, if not years. Still others had received an order of removal but did not know when or if that would be effectuated.

Table 2 – Length of time in detention of persons with mental disabilities interviewed by HRW

Length of time in detention

Number of interviewees

Less than 1 month

2

1-3 months

9

3-6 months

6

6months-1 year

6

1-2 years

8

Over 4 years

1

Where the individual appears to have a mental disability and cannot participate in court, some IJs have administratively closed the case. Both sides must agree to this step, which removes the case from the court calendar and puts it on hold, rather than ending it altogether.[258] Administrative closure does not trigger release from detention,[259] which may even be prolonged in the absence of limits on detention during immigration hearings, and can fail to address the reasons for which the case was administratively closed—the need for treatment and/or the inability of a person to proceed in court.

“The risk with administrative closure is that the person may still remain detained and end up stuck in a legal black hole,” said attorney Christina Powers.[260]

Neither case law nor immigration regulations limit the time that a person can be detained during administrative closure before the case is decided.[261] Human Rights Watch was told of cases where an IJ administratively closed cases to allow the DHS to provide competency evaluations, and in those cases, the competency evaluations were never completed even while the individuals remained detained and in ICE custody.[262]

Similarly, two men in southern California remained in detention for more than four years while waiting for their immigration hearings after an IJ determined they were not competent to proceed with their hearings and administratively closed the cases. The government finally agreed to release them on March 31, 2010, just days after legal service organizations in southern California filed lawsuits on the men’s behalf.[263]

In other cases, immigration proceedings and detention are prolonged because of transfer for treatment. While this may be a laudable goal in some cases, these transfer decisions lack transparency and are not subject to periodic review to assess the continued necessity of treatment in this facility. While this investigation did not address rights violations based on involuntary treatment and/or involuntary admission to psychiatric care facilities, in the absence of clear and transparent regulations, ICE decisions about the necessity and allocation of mental health services may raise human rights concerns. There is no regulatory guidance or internal policy guidance relating to the criteria, transfer, care, and return, of detainees who receive in-patient mental health care, and it is unclear whether treatment is voluntary and under what circumstances and by what procedures it can be refused. Many detainees interviewed by Human Rights Watch were distressed they had been detained in an immigration detention facility (or transferred from one detention facility to another) where their medication was unavailable. On the other hand, an LPR from Laos interviewed in a private health care detention facility in South Carolina said she did not know why she was transferred from California, and did not need medical or psychiatric care.[264]

ICE currently contracts with hospitals to provide medical care, including psychiatric care, for detainees. Columbia Regional Care Center (CRCC) receives immigration detainees from facilities around the country, which may use different standards and procedures for determining if an immigration detainee should receive in-patient treatment in a designated medical facility based on available services at or near the sending facility. Dr. Homer Venters, clinical instructor at Bellevue Hospital, said, “They are supposedly taking the sickest patients to Columbia Regional Care but it’s not clear how routinely they reassess patients. We’ve seen people with severe depression, sent to CRCC for medication and then they just sit there.”[265] No memorandum of understanding exists between ICE and CRCC, so procedures by which an immigration detainee is transferred to and from CRCC remain unclear.[266]

ICE and medical staff at CRCC explained to Human Rights Watch that the decision to transfer an ICE detainee to CRCC (and back to the original facility when treatment is complete) is purely medical, made by medical (as opposed to custodial) staff at the facility. In some cases, DIHS staff at CRCC noted, return to the sending facility may be delayed or not possible if medical staff determine that an immigration detainee requires on-going treatment and care that is not available in the sending facility.[267]

Some ICE officials apparently recognize that transfers for treatment may unnecessarily prolong immigration proceedings and detention. ICE staff at CRCC are authorized to decide that a particular detainee is better suited to community mental health care than detention with psychiatric treatment. One deportation officer at CRCC told Human Rights Watch, “We push for supervised orders of release wherever possible. In my experience we release more people than we deport from CRCC…. They tend to be more successful when returned to their families.”[268] ICE staff at CRCC told Human Rights Watch that they have worked out a system whereby individuals with families can be released to them under supervised release orders; ICE and DIHS assist detainees without family to find placements in South Carolina where they can receive treatment and continue to participate in immigration proceedings on the non-detained docket. These arrangements permit individuals with mental disabilities to continue with immigration proceedings without unnecessary detention, and should be encouraged at other ICE field offices.

In addition immigration judges and ICE officers in some cases appear to be working to ensure that persons with mental disabilities are able to participate in their hearings. For example, ICE may transfer a detainee to a facility like CRCC to receive requisite mental health treatment, or IJs may allow a person additional time to find a lawyer, collect evidence, or receive mental health treatment before proceeding with the case. However laudable these actions, under the current detention regime these attempts at assistance may prolong detention, sometimes without benefit to the detainee.

Prolonged Detention After the Final Order of Removal

 Detention is not institutionalization. Detention is jail.
—Attorney Bardis Vakili, Casa Cornelia Law Center, San Diego, CA, February 9, 2010.

In some cases, a non-citizen who has been ordered deported by an immigration judge cannot be expeditiously removed to the country of origin because it does not have diplomatic relations or repatriation agreements with the US, refuses to receive the person for other reasons, or simply fails to provide travel documents.

 In 2001, the US Supreme Court in Zadvydas v. Davis struck down the government’s policy of indefinitely detaining such individuals, holding that it raised serious constitutional problems, and that the immigration statute only authorized post-final-order detention if there was a “significant likelihood of removal in the reasonably foreseeable future.”[269]

Following this decision, the government promulgated regulations establishing an administrative custody review process to comply with the Court’s ruling. These regulations require review of a person’s custody after the 90-day “removal period,” and again at the 180-day mark.[270] During the 180-day review, the government is meant to assess whether the detainee’s removal is significantly likely in the reasonably foreseeable future; if it is not, and the detainee has cooperated with removal efforts, he or she should be released. But if the detainee is found to be obstructing removal—for example, by failing to apply for a travel document—regulations allow for continued indefinite detention.[271] Many individuals with mental disabilities may be unable to cooperate with the removal process by providing information needed to obtain documents, particularly when they are in detention and have no legal assistance.

Human Rights Watch learned of one case where an individual has been detained for nearly ten years—more of them nine of them after he received a final removal order on January 3, 2001—because he allegedly failed to cooperate with his removal.[272] Antoni P., a lawful permanent resident from East Central Europe diagnosed with multiple psychiatric disorders including bipolar disorder and borderline personality disorder, has been in detention since November 2000. He has not yet been deported as his country of origin is in dispute; Antoni claims to be Roma and is not accepting either of the countries designated by ICE for repatriation. While the government asserts that Antoni’s indefinite detention is due to his failure to assist ICE in his deportation, attorneys familiar with the case say this “non-cooperation” is in all likelihood related to Antoni’s mental disability.[273]

Immigration regulations also continue to authorize indefinite detention of individuals who are determined to be “specially dangerous” due to mental illness, even though US law clearly prohibits indefinite detention of an individual in a prison or jail solely on the basis of his or her mental disability.[274] According to US law, if an individual is held in custody on account of his or her mental disability, the state must hold civil commitment hearings at which the individual has legal counsel to justify continued detention.[275] But this law is not applied in the immigration system, and detention continues indefinitely even though individuals deemed “specially dangerous” by the immigration system are entitled to periodic reviews by medical practitioners and the immigration court.

“Specially Dangerous” and in Indefinite Detention

Ly K., a 44-year-old refugee from Vietnam diagnosed with chronic paranoid schizophrenia, has been detained under these provisions for the past eight years, even though his repatriation to Vietnam is not possible. In 1995, Ly K. was convicted of attempted second-degree rape and first degree burglary and sentenced to 15 years in prison. After a tele-video hearing in which he proceeded pro se, Ly received a final order of removal on April 20, 1998, and was transferred to ICE custody in 2002. He is currently detained in Etowah County Jail, Alabama. Although the United States has been repatriating citizens and nationals of Vietnam since January 2008, the policy only applies to individuals who came to the US after July 12, 1995. [276] Since Ly K. came to US in 1992, Vietnam will not take him back.

Pursuant to the “specially dangerous” regulations, Ly K. was given a custody status review in August 2004. The custody status review board issued a Decision to Continue Detention based on Ly posing a “special danger” due to his mental illness: an immigration judge affirmed the determination several months later. [277]

In 2009, Ly K. found an attorney, Tin N. Nguyen, who has since filed a habeas petition in federal district court on Ly K’s behalf. [278] Nguyen says that he is the first person Ly K. could communicate with in his dialect in years; appropriate translators were not provided in either Ly K’s criminal or immigration proceedings or during his mental health evaluations. [279]

Individuals adjudged “specially dangerous” like Ly K. are left in a legal limbo that violates human rights law on arbitrary and indefinite detention, and US law on the detention based on mental disability. [280] In Ly K.’s case, the IJ found that Ly K. could not be released under a supervised order of release; however, the IJ noted in his decision that the regulations provided no further guidance on how to handle Ly K’s case:

[N]o statutory or regulatory authority exists which would allow an Immigration Judge to terminate a federal immigration proceeding by ordering the transfer of custody of the alien into the jurisdictional control of the State of residence in order for an involuntary civil commitment to a mental health facility.[281]

In the criminal justice system, a prisoner who the authorities believed should not be released at the end of his or her sentence on account of a mental disability would be entitled to a hearing and legal representation to determine whether civil commitment is necessary.[282] A person whose liberty is taken away may not recognize a difference between a secure psychiatric facility or prison. However, the purpose of civil commitment is treatment and has a different, if related, rationale from immigration detention, which under existing law may be of indefinite duration.

In exceptional cases, when a detainee with mental disabilities has completed all removal proceedings, cannot be deported, has undergone post-final-order custody reviews, and has been adjudged as having a mental disability and also potentially dangerous, there must be accommodation for the detainee’s well-being and a review of the location of custody. Instead, ICE continues to hold individuals found “specially dangerous” in regular immigration detention facilities, which are not designed to be long-term care facilities for persons with severe mental disabilities.

A 2007 report from the Office of Inspector General (OIG) for DHS found that of 428 individuals detained post-final order of removal for over 360 days, only 36 were classified as specially dangerous, which suggests that the remaining 392 had either failed to comply with deportation or were being held based on a determination that their removal was “reasonably foreseeable,” even as the length of their detention implied otherwise. But many more may suffer from mental disabilities that make it difficult for them to advocate for their supervised release, or result in their being classified as failing to comply with removal. The OIG report cited one public health service officer as saying that the number of detainees with violent criminal convictions related to mental health problems significantly exceeded the 36 cases where an individual was certified as “specially dangerous.”[283]

A finding that a post-final order detainee has a mental disability, even without a finding that he or she is “specially dangerous,” should trigger judicial scrutiny of his or her detention, and an obligation on the part of ICE to seek appropriate alternatives to detention, for example, by referral to Public Health Service staff for placement in community mental health treatment. However, the OIG report found that because ICE lacks training and connections with mental health facilities, placement itself can take a long time and in some cases may result in unsuitable placements or no placement at all.[284] Furthermore, many detention facilities that ICE uses are not served by PHS staff. Staffing shortages of mental health professionals at many immigration detention facilities are well documented.[285]

Where immigration detainees remain in custody after the presumptively reasonable six month removal period, one of the only avenues for relief is to file a federal habeas corpus action to contest the continued detention. The OIG report found that approximately 40 percent of post-order of removal detainees are released after a habeas action is filed, implying that, “government entities … are finding the decisions made under the existing system cannot be supported when challenged.”[286]

Immigration detainees with mental disabilities may not be able to “comply” with deportation procedures, or their detention may be extended under the regulations for “specially dangerous” individuals; they may also face particular challenges in contesting prolonged detention. As a result they are effectively punished for their mental disabilities. Post-order regulations must be amended to incorporate procedural protections for them to ensure they are not inappropriately detained, in violation of human rights law, beyond the justification for their detention and without opportunity of judicial review.

[216] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N.

GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United

States on June 8, 1992, Article 9(1)”No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law;” ICCPR, art.9(4).

[217]Human Rights Committee, General Comment No. 8, in Report of the Human Rights Committee, Human Rights Committee, U.N. GAOR, 37th sess., Supp. No. 40, Annex V at 95 (1982).

[218]CRPD, art.14 (2).

[219]UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, January 18, 2010, para. 59.

[220]A v. Australia Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 , April 30, 1997, para.9.2 (emphasis added).

[221]Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, G.A. res. 46/119, 46 U.N. GAOR Supp. (No. 49) at 189, U.N. Doc. A/46/49 (1991), principle 9.1; Olmstead v. L.C., 527 U.S. 581 (1999) (requiring that states provide services to individuals with disabilities in the “most integrated setting”); Disability Advocates Inc. v. Paterson et al., No. 03 CV 3209, 2009 WL 2872833 (E.D.N.Y., Sept. 8, 2009); American with Disabilities Act, 42 U.S.C. Section 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. Section 791 et seq.

[222]UN Human Rights Committee, General Comment no. 13, Equality before the courts and the right to a fair and public hearing by an independent court established by law, HRI/GEN/1/Rev.1 (1984) art. 14.

[223]ICCPR, art.9(3).

[224]ICCPR art.9; UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/1992/20, January 21, 1992, Annex 1; Jackson v. Indiana, 406 US 715, 738 (1972); Jackson v. Indiana, 406 US 715, 738 (1972).

[225]Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43, U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), at para. 11.1.

[226]UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/1992/20, January 21, 1992.

[227]Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 172 (1993) (“[i]t is not enough for deprivation of liberty to be provided for by law. The law itself must not be arbitrary, and the enforcement of the law in a given case must not take place arbitrarily.”); William J. Aceves, Paul L. Hoffman and Joan Fitzpatrick, Brief of Amici Curiae International Human Rights Organizations In Support of Respondent, Demore v. Kim, October 28, 2002.

[228]A v. Australia Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 , April 30, 1997, at para. 9.5.

[229]Zadvydas v. Davis, 533 US 678, 688-90 (2001).

[230]Ibid., p. 690-91.

[231]Carlson v. Landon, 342 US 524, 538 (1952).

[232]Office of Inspector General, Immigration and Naturalization Service, “Contracting for Detention Space,” Audit Report 97-05 (1/97), p. 2, http://www.usdoj.gov/oig/reports/INS/a9705/index.htm (accessed July 7, 2010).

[233]Schriro Report, p.2.

[234]See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-628; Antiterrorism and Effective Death Penalty Act (AEDPA), Public Law No. 104-132, 110 Stat. 1214.

[235]Schriro Detention Report, p.2.

[236]Ibid. (“Of the aliens in detention on September 1, 66 percent were subject to mandatory detention and 51 percent were felons, of which, 11 percent had committed violent crimes. The majority of the population is characterized as low custody, or having a low propensity for violence.”)

[237]The movement of people from the criminal justice system and into immigration detention has been facilitated by increased collaboration between ICE and local law enforcement officers through contractual arrangements under the 287(g) provision of the INA, which permits local police to arrest and detain non-citizens on behalf of ICE (see 8 U.S.C. Section 1357(g)). As of April 2010, ICE reported having enrolled 71 agencies in 26 states and trained 1,120 officers under the program. See Department of Homeland Security, US Immigration and Customs Enforcement, “Updated Facts on ICE’s 287g Program,” April 12, 2010, http://www.ice.gov/pi/news/factsheets/section287_g-reform.htm (accessed July 7, 2010).

[238]Human Rights Watch interview with Jodi Goodwin, Los Fresnos, TX, January 19, 2010.

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

[240]Human Rights Watch telephone interview with Jordan Dollar, Catholic Legal Services, Miami, FL, March 16, 2010.

[241]John P. Torres, US Immigration and Customs Enforcement, Office of Detention and Removal Operations, Director, Memorandum, “Discretion in Cases of Extreme or Severe Medical Concern,” December 11, 2006, http://www.ice.gov/doclib/foia/dro_policy_memos/discretionincasesofextremeorseveremedicalconcerndec112006.pdf (access July 7, 2010).

[242]For example, Mamawa P., a refugee from Liberia who asked to be deported, had been in detention for at least two months at the time of her interview with Human Rights Watch even though there were no charges against her. Human Rights Watch interview with Mamawa P., Kenosha County Jail, Kenosha, WI, February 3, 2010. Another individual, Nathaniel L., was removed from a residential living and treatment center and spent months in detention before ICE charged him with an aggravated felony, making him subject to mandatory detention. Human Rights Watch interview with Allison Kent, March 2, 2010. Moreover, many unrepresented individuals interviewed for this report said they had never seen the charges against them; some of these individuals may have been eligible for release on bond or under orders of supervision and, with legal assistance, may have been able to advocate for release from detention.

[243]Human Rights Watch telephone interview with Dr. Homer Venters, NYU Bellevue Hospital, March 15, 2010, and email correspondence, April 8, 2010; Human Rights Watch telephone interview with Heidi Altman, Neighborhood Defender Services, New York, NY, April 5, 2010.

[244]Human Rights Watch telephone interview with Dr. Homer Venters, NYU Bellevue Hospital, March 15, 2010, and email correspondence, April 8, 2010.

[245]John Morton, US Immigration and Customs Enforcement, Assistant Secretary, Department of Homeland Security, “Secure Communities Factsheet,” September 1, 2009, http://www.ice.gov/doclib/pi/news/factsheets/secure_communities.pdf (accessed May 27, 2010)(“ICE is focusing efforts first and foremost on the most dangerous criminal aliens currently charged with, or previously convicted of, the most serious criminal offenses.”)

[246]Schriro Report, p.3.

[247]John Morton, Assistant Secretary, U.S. Immigration and Customs Enforcement, “Civil Immigration enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens,” June 30, 2010, http://www.ice.gov/doclib/civil_enforcement_priorities.pdf (accessed July 7, 2010).

[248]Ibid., p.3-4.

[249]TRAC Immigration, “Immigration Case Backlog Still Growing,” May 24, 2010, http://trac.syr.edu/immigration/reports/232/ (accessed May 25, 2010).

[250]Human Rights Watch interview with Christopher A. (pseudonym), Kenosha County Jail, Kenosha, WI, February 4, 2010.

[251]A “continuance” is the postponement of a hearing, by order of the judge, which may be requested by one of the parties. Immigration judges may issue a continuance in a number of circumstances, for example, to give a non-citizen time to find a lawyer, collect relevant documents or witnesses, or to get a competency evaluation.

[252]A guardian ad litem is a person who is appointed by a court to represent an individual in need of additional assistance. Guardians have legal authority to make decisions on behalf of the individual (“ward”) they represent, and courts may tailor the authority of the guardian to control of the specific interests at issue in litigation. Some advocates interviewed by Human Rights Watch researchers said they worked with legal guardians in immigration cases where they could not identify the interests or will of the client.

[253]Michael J. Garcia, US Immigration and Customs Enforcement, DHS, Assistant Secretary, Memorandum, “Detention Policy Where an Immigration Judge has Granted Asylum and ICE has Appealed,” February 9, 2004.

[254]Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison, June 2009; Shelley Murphy, “Refugee jailed as US fights asylum grant: ACLU suit pushes immediate release,” The Boston Globe, April 30, 2010, http://www.boston.com/news/local/massachusetts/articles/2010/04/30/refugee_languishes_as_us_fights_asylum_decision/ (accessed June 7, 2010).

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

[256]Human Rights Watch email correspondence with Jesse Evans-Schroeder, June 22, 2010.

[257]Demore v. Kim, 538 US 510, 513 (2003).

[258]Matter of Amico, 19 I&N Dec.652, 654 n. 1 (BIA 1988).

[259] As discussed in the previous chapter, administrative closure puts a case on hold but does not end the case, and in many cases, immigration judges cannot order a detainee released from detention, if he or she is subject to mandatory detention, before the case has been finally resolved.

[260]Human Rights Watch telephone interview with Christina Powers, Pittsburgh, PA, December 7, 2009.

[261]The Immigration Judge Benchbook, published by EOIR to provide guidance for immigration judges, defines administrative closure as “merely a procedural convenience that authorizes the temporary removal of proceedings from the Court’s calendar while retaining the proceedings on the Court’s docket,” IJ Benchbook, Chapter 1, http://www.justice.gov/eoir/vll/benchbook/resources/criminal/CHAPTER percent20IJurisdiction percent20of percent20the percent20Court percent20 percent28Section percent20240 percent20Removal.htm#Administrative_Closure (accessed May 9, 2010). Published cases on administrative closure in immigration court do not offer any discussion on time limits and procedures for recalendaring a hearing. See Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990); and Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990). See also Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. 2009).

[262]Human Rights Watch telephone interview with Immigration Judge 1 (name withheld), February 11, 2010.

[263] “Immigration Officials Announce Release of Detainees with Mental Disabilities Who Were Lost in Detention for Years,” American Civil Liberties Union of Southern California, ACLU-SC press release, March 31, 2010 (accessed July 13, 2010).

[264]Human Rights Watch interview with Noma T. (pseudonym), Columbia Regional Care Center, Columbia, SC, February 22, 2010.

[265]Human Rights Watch telephone interview with Homer Venters, New York, NY, March 15, 2010.

[266]Letter to Human Rights Watch from Department of Homeland Security, Immigration and Customs Enforcement, “ICE/ERO response to Questions from Human Rights Watch,” June 18, 2010 (on file with Human Rights Watch).

[267]Human Rights Watch conversation with DIHS staff at Columbia Regional Care Center (name withheld), Columbia, SC, February 22, 2010.

[268]Ibid.

[269]Ibid., p.701. The Supreme Court set six months as the presumptively reasonable period of time for the government to effectuate removal, after which time, if a detainee can show that there are reasons to believe that removal is not significantly likely in the reasonably foreseeable future, the government must either rebut this showing or release the individual from detention. The individual can be placed under reasonable conditions of supervision, but continued detention is not authorized.

[270]If deportation cannot occur within the 90 days, the detainee must receive a post-order custody review that looks at (1) whether the person is a flight risk if released; (2) whether the individual is a danger to the community; and (3) the likelihood of obtaining travel documents. 8 C.F.R. Section 241.4. If the detainee is still in custody after 180 days, ICE must conduct a custody determination review. 8 C.F.R. Section 241.13; Gary E. Mead, Assistant Director for Management, Office of Detention and Removal Operations, Department of Homeland Security, “Guidance Relating to 8 CFR § 241.4, Continued Detention of Aliens Beyond the Removal Period and New Procedures Relating to Case Transfers to the Custody Determination Unit (CDU),” November 14, 2007, http://www.ice.gov/doclib/foia/dro_policy_memos/guidancerelatingto8cfr241.4continueddetentionofaliensbeyondtheremovalperiodnov142007.pdf (accessed April 9, 2010).

[271]8 CFR Section 241.4. Individuals who “willfully” fail to comply can even be criminally prosecuted. 8 U.S.C. Section 1253(a).

[272]Human Rights Watch email correspondence with Jennifer Stark, American Civil Liberties Union of Southern California, May 11, 2010.

[273]Human Rights Watch email correspondence with Jennifer Stark, American Civil Liberties Union of Southern California, May 11, 2010.

[274]8 C.F.R. Section 241.14. There is currently a division among the circuit courts as to the legality of these regulations. Compare Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008) and Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) (finding that indefinite detention of a non-citizen ordered removed who the government finds “dangerous” due to a mental illness is not permissible), with Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) (upholding indefinite detention under the specially dangerous regulations); Jackson v. Indiana, 406 U.S. 715, 738 (1972)(due process “requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”).

[275]18 U.S.C. Section 4246 (procedures for civil commitment of a criminal defendant at the completion of his or her sentence); Jackson v. Indiana, 406 U.S. 715 (1972). The Court in Jackson held that “ indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment’s guarantee of due process” and required that if a person was held not competent to proceed in a criminal trial, the state must initiate civil commitment proceedings to continue detention.

[276]Department of Homeland Security, Immigration and Customs Enforcement, “ICE Assistant Secretary Myers signs historical MOU with Vietnam,” January 22, 2008, http://www.ice.gov/pi/news/newsreleases/articles/080122washington.htm (accessed July 7, 2010).

[277]Office of the Assistant Secretary, Immigration and Customs Enforcement, “Decision to Continue Detention”, August 12, 2004 (on file with Human Rights Watch); Matter of (name withheld), In Continued Detention Review Proceedings, Decision and Order, November 22, 2004 (on file with Human Rights Watch).

[278]Human Rights Watch telephone interview with Tin N. Nguyen, Charlotte, NC, February 18, 2010.

[279]Ibid.

[280]8 CFR Section 241.14(f). US law allows the detention of persons with mental disabilities where the government demonstrates “by clear and convincing evidence that the individual is mentally ill and dangerous.” Jones v. US, 463 U.S. 354, 362 (1983). In some circumstances with strict limits, a person may be detained if he or she poses a danger to others. United States v. Salerno, 481 US 739, 747-49 (1987) (“There is no doubt that preventing danger to the community is a legitimate regulatory goal… Even outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons. Thus, we have found no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings. We have also held that the government may detain mentally unstable individuals who present a danger to the public, and dangerous defendants who become incompetent to stand trial.”) (internal citations omitted).

[281]In Continued Detention Review Proceedings, A-73-257-633, November 30, 2004 (on file with Human Rights Watch).

[282]18 U.S.C. Section 4246.

[283]OIG Final Order of Removal Report, p.14 and Appendix F, p. 55.

[284]Ibid., p. 20-30.

[285]Human Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, March 2009; Texas Appleseed, Justice for Immigration’s Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and detention System, March 2010.

[286]OIG Final Order of Removal Report, p.41.