July 25, 2010

Summary

Alberto B. was one-and-a-half years old when his family moved to the United States from Portugal in 1967. He became a legal permanent resident, or “green card” holder, and grew up in Massachusetts with his parents and siblings, some of whom became US citizens. Alberto has been diagnosed with bipolar disorder, a mental impairment that causes severe shifts in mood, energy, and ability to function. In a letter to Human Rights Watch, Alberto wrote: “I’ve been on psych meds since 2004, my guess. I finally turned myself in for help, FORGET MY PRIDE, I [knew] I had a problem. SINCE A very, very, young age…”[1]

In 2008, Alberto spent 50 days in an in-patient psychiatric hospital in Massachusetts and was homeless after his release. Alberto claims that he lost his medication later that year, and was arrested for theft and trespassing a few days later.

Alberto’s criminal defense lawyer did not raise his client’s mental competence in court. Alberto agreed to a plea bargain, was released, and hopeful that a new attorney hired by his family would be able to vacate the criminal charges against him. But in February 2009, immigration officers arrested Alberto for deportation because of his outstanding criminal convictions, and sent him to the Port Isabel Detention Center in Harlingen, south Texas.

Alberto had been held for approximately 11 months when a Human Rights Watch researcher met him. In a letter to us, he wrote:

[F]riends tell me just make a plea bargain with D.A. and get out of it. I didn’t know IT would add up to all of these [things]…being taking to Immigration Holding and brought all the way from mass to texas when I need my family’s moral support. Me needing my family moral support.[2]

Alberto spent much of his time in detention in segregated medical housing due to his mental disability. He told Human Rights Watch that he has never seen the immigration charges against him, and has been unable to obtain his medical files. Despite several hearings in immigration court before his final hearing in December 2009, Alberto said he was never represented by a lawyer, even though he made repeated efforts to find one to represent him pro bono. “I’ve been to immigration court 5 times and I keep asking for time to get a lawyer,” he said.[3]

According to Alberto, the immigration court did not take his disabilities into account, even though they may affect the underlying charges against him, and he told the judge that he had “a lot of mental issues.”[4] At his final hearing in December, a judge ordered that Alberto be deported to Portugal, where he has no family and does not speak the language. “I have no idea what I will do there,” Alberto said.[5] At time of writing, Alberto was still at Port Isabel, hoping his appeal would be granted.

* * *

The US immigration court system is complicated and adversarial at the best of times. But as Alberto’s experience highlights, it may be particularly confusing for people with mental disabilities, who may find it hard to follow proceedings, or provide credible evidence to lawyers and judges, especially without legal representation and adequate support.

This report—based on 104 interviews with non-citizens with mental disabilities, their family members, social workers, psychiatrists, immigration attorneys, judges and rights advocates—documents the lack of meaningful safeguards for people with mental disabilities facing possible deportation from the United States. Deficiencies exist throughout the arrest, detention, removal, and deportation process, violating the human rights of affected individuals and offending both American and international standards of justice. The shortcomings include no right to appointed counsel; inflexible detention policies; lack of substantive or operative guidance for attorneys and judges as to how courts should achieve fair hearings for people with mental disabilities; and inadequately coordinated care and social services to aid detainees while in custody and upon release.

This report also explores the implications of these failures. As immigration attorney Megan Bremer has noted, due process violations severely compromise the integrity of the US immigration justice system and undermine the ability of immigration courts to ensure accurate and just results:

Due process is part of judicial integrity. It’s a basic principle that this country has decided to prioritize. It’s one of our greatest exports—we send people all over the world to talk about rule of law and how to reform judicial systems but we’re not doing it here in our fastest growing judicial system [the immigration courts].[6]

Not every non-citizen with a mental disability is entitled to remain in the United States; but everyone is entitled to a fair hearing and a chance to defend his or her rights. If the US government is going to detain and deport individuals with mental disabilities, it must do so in a way that respects their human rights, honors US human rights commitments, and ensures fair and accurate court decisions.[7]

***

Every year, several hundred thousand people—including people who have lived in the United States since childhood, people who have fled persecution in their homeland to seek asylum in the US, economic migrants who have entered the country without work authorization or over-stayed nonimmigrant visas to seek employment—are arrested by Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security (DHS). Their alleged violations range from violent crimes to relatively minor offenses, such as overstaying a valid visa, illegally entering the United States, and possessing small amounts of marijuana. Most (391,829 cases in 2009) are scheduled for a series of hearings in immigration court to determine if they are entitled to remain in the United States or must be deported.[8]

Some of these people have mental disabilities. While no exact official figures exist, the percentage of non-citizens in immigration proceedings with a mental disability is estimated to be at least 15 percent of the total immigrant population in detention—in other words, an estimated 57,000 in 2008.

Most people in the United States who face detention, removal and deportation—and therefore the people who are the foci of this report—are “non-citizens,” a term used here to refer to long-term permanent residents, asylum-seekers, individuals with work visas, and individuals who are undocumented. (In many cases, this report refers to “individuals” or “persons with mental disabilities” in immigration proceedings as opposed to “non-citizens” where it is not known if the individual is a US citizen.)

However, Human Rights Watch research suggests that even US citizens, particularly those with mental disabilities, have ended up in ICE custody, and that an unknown number of legal permanent residents (LPRs) and asylum seekers with a lawful basis for remaining in the United States may have been unfairly deported from the country because their mental disabilities made it impossible for them to effectively present their claims in court. Some US citizens with mental disabilities may have been deported to countries they do not know, and some of these people have not been or cannot be found.

There are also several cases documented in the press and by legal service organizations in which a US citizen with a mental disability has been deported and where family advocacy ensured their safe return. These include:

  • 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.[9]
  • 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. He was deported to Mexico, where he was lost for almost three months before he was located and returned to his family in California.[10]
  • 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.[11]
  • 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 against each of them was uncertain and inconsistent.[12] A third interviewee may have a valid claim for US citizenship according to his attorneys.[13]

Non-citizens bear a heavy burden of proof to show that they should be afforded a legal status in the United States and not deported. Although the Immigration and Nationality Act (INA)—the law governing immigration proceedings—provides that non-citizens may have legal representation, they must also find and pay for their own attorney (or find one willing to represent them on a pro bono basis).[14] As a result, 61 percent of non-citizens have no lawyer during proceedings—a figure that is likely to be significantly higher for those in detention given the remote locations of most large detention facilities.[15]

These aspects of the immigration system are particularly onerous for people with mental disabilities, who have a diminished ability to protect their rights in the legal system or provide credible and coherent information when it comes to claims or defenses.

Criminal courts recognize that it is fundamentally unfair to prosecute a person who cannot understand the case against him or her. As a result, a defendant in criminal court with a mental disability who cannot understand the charges and courtroom procedures or the fact that he or she faces punishment, often cannot be subject to that punishment.

In contrast, immigration courts have no substantive or operative guidance for how they should achieve fair hearings for people with mental disabilities, aside from a general statement in the statutes that the US attorney general must provide “safeguards” for individuals who cannot participate in proceedings by reason of their “mental incompetency.”[16] However neither this statute nor any federal regulation governing immigration proceedings provides definition or standards for competency to self-represent or proceed in immigration court, and does not spell out what a “reasonable opportunity” means for a non-citizen with a mental disability who may not even recognize that he or she is facing deportation.[17] Judges are not required to appoint lawyers or alter procedures to accommodate a person’s limited comprehension; nor does any law or regulation instruct immigration judges to question whether a person facing deportation understands the charges against him or her, or even understands what deportation means.

Human Rights Watch documented cases of non-citizens who:

  • Did not understand what the judge asked them in court (one individual did not know what a judge was).
  • Were delusional or experienced hallucinations.
  • Could not read or write, tell time, name their birth place, or say what day it was.
  • Did not understand the concept of deportation—saying that they wanted to be deported “to New York” or “to Louisiana.”
  • Asked to be deported when they were not taking medication, and later regretted their request.
  • Did not have an attorney.
  • Did not know they were allowed to ask the judge questions or to tell the judge about their mental disabilities, and were not asked in court if they were taking medication or needed help.
  • Said they feared a negative impact on the merits of their cases if they told judges or attorneys about their disabilities.

Furthermore, while fair immigration proceedings require the cooperation of ICE trial attorneys, Human Rights Watch found that in many cases the ICE attorney prosecuting the case did not inform the judge when a non-citizen facing deportation had a diagnosed or suspected mental disability—even when one had been previously adjudged by a criminal court—which clearly compromised the non-citizen’s ability to understand proceedings. While individual trial attorneys may be sympathetic, ICE may have no interest in telling the court that a non-citizen’s competency is in doubt if doing so could delay and complicate already-complex cases, of which there is already a significant backlog.

 In other cases, ICE attorneys refused or neglected to perform competency evaluations and to supply information from evaluations to the court—even when the court ordered them to do so. Moreover, a clear conflict of interest arises from the fact that the only stipulation in immigration court for the INA for “representation” of a non-citizen with mental disabilities is a provision that if no lawyer or family member can be found to appear with the non-citizen, “the custodian” of the respondent shall be requested to appear on his or her behalf.[18] When the non-citizen is detained, this “custodian” is ICE—the same agency that detains and prosecutes non-citizens in deportation proceedings. This is akin to having a jail warden act as defense attorney for someone accused of committing a crime, and violates basic standards of fairness.

Prolonged and even indefinite detention is an additional problem faced by people with mental disabilities. In some cases, immigration judges attempt to introduce procedural safeguards by administratively closing a case—thereby placing it on hold—so the individual facing deportation can find an attorney or get a competency evaluation performed. However, even when a case is closed, the detainee is not released from detention. Rather, he or she remains in detention while the case is temporarily but indefinitely suspended as it waits to be “re-calendared” (returned to the schedule of cases to be heard). As judges have no authority to appoint lawyers, there is no guarantee that the new hearing, when and if it occurs, will have any additional safeguards. In other cases, ICE may not be able to deport a person with mental disabilities if it cannot determine the person’s country of origin, or secure his or her assistance in finding a country that will receive them if the country of nationality refuses repatriation. In rare cases, a non-citizen who cannot be deported despite a court order (because ICE, for example, cannot determine his or her country of origin, or the country of nationality refuses repatriation) may be labeled “specially dangerous” due to his or her mental disability and left in detention interminably. This legal limbo violates human rights law on arbitrary and indefinite detention, as well as US law on detention based on mental disability.

Human rights and US law recognize that fair court proceedings are indispensable in protecting and fulfilling all other rights. For example, international human rights standards require that non-citizens, including those with mental disabilities, are genuinely able to present their cases in immigration court, and receive fair treatment throughout proceedings. To meet this standard it would be appear vital that this includes having a court-appointed attorney represent individuals who either cannot represent themselves, or express their interests without support; imposing firm limits on detention; and giving judges tools to adapt procedures and custody decisions to the needs of a particular individual with disabilities. Meanwhile US law recognizes that due process is essential where a non-citizen is facing deportation, which “can be the equivalent of banishment or exile” and can result in “poverty, persecution, even death.”[19]

Consistent with these standards, Human Rights Watch calls for non-citizens with mental disabilities to be appointed counsel in immigration proceedings and to have their rights protected in the courtroom. It calls for the Immigration and Nationality Act to exempt from mandatory detention all non-citizens with mental disabilities, and to develop regulations that protect the rights of non-citizens with mental disabilities in immigration court proceedings, including directing immigration judges in appropriate cases to appoint counsel and terminate proceedings.

The Department of Homeland Security, which oversees ICE operations, should acknowledge that deportation may be costly, time-consuming, and even impossible to achieve in cases where a person’s mental disability severely limits their ability to present their case, and also the government’s ability to prosecute and effectuate a deportation. In such instances, alternatives to detention—even permanent termination of deportation proceedings—should be considered. However, in most cases, immigration courts will be able to hear the case, assess its merits, and make fair decisions if there are standards for competency and procedures to follow if a competency question arises; and a person with a mental disability is represented by counsel.

Immigration judges and other court participants such as ICE trial attorneys and interpreters need consistent training on recognizing mental disabilities and interacting with people with mental disabilities in a respectful and effective manner that promotes the individual’s dignity and helps all parties to conduct a fair and effective hearing. In 2010, the Immigration Judge Benchbook added a short discussion of this issue, which is an encouraging step in the right direction.[20]

[1]Letter from Alberto B. (pseudonym) provided to Human Rights Watch, January 19, 2010, (on file with Human Rights Watch) (capitalizations, spelling, punctuation, and grammar as in original).

[2]Ibid.

[3]Human Rights Watch interview with Alberto B. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

[4]Ibid.

[5]Ibid.

[6]Human Rights Watch interview with Megan Bremer, Pennsylvania Immigration Resource Center, York, PA, February 17, 2010; Human Rights Watch telephone conversation with Megan Bremer, April 2, 2010.

[7]Human Rights Watch has shown elsewhere that in deporting non-citizens with serious medical needs to countries where adequate treatment is unavailable, the US government is in violation of its human rights legal obligations under the Convention against Torture and the International Covenant on Civil and Political Liberties. Human Rights Watch, Returned to Risk: Deportation of HIV-Positive Migrants, September 24, 2009.

[8]Throughout this report the terms “deportation” and “removal” are used interchangeably to refer to a government’s removal of a non-citizen from its territory. Human Rights Watch notes that the terms had different meanings under earlier versions of US immigration law, and that now all such governmental actions are referred to in US law as “removals.” Nevertheless, for simplicity the more commonly understood term “deportation” is used wherever possible.

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

[10]“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).

[11]Kristin Collins, “Federal officials wrongly deport N.C. man,” The Charlotte Observer, April 30, 2009.

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

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

[14]Immigration and Nationality Act (INA), Section 292 (emphasis added).

[15]Texas Appleseed’s recent report on Texas, which hosts a large immigrant detention population, found that 86 percent of immigration detainees had no lawyer. This lack of legal representation is highly significant given that the US government is always represented by an ICE trial attorney, who submits charges against the non-citizen to the immigration court and argues why he or she should be deported, and because studies show asylum seekers may be three to six times more likely to receive asylum with legal counsel than without.

[16]8 U.S.C. Section 1229a(b)(3).

[17]This report uses “competence” or “competency” to refer to the legal term of art in the United States which sets a standard for a person’s ability to participate in and understand the court process; 8 U.S.C. Section 1229a(b)(3).

[18]8 C.F.R. Section 1240.4.

[19]Bridges v. Wixon, 326 US 135, 147 (1945).

[20]US Department of Justice, Executive Office for Immigration Review, Benchbook for Immigration Judges, Chapter 1, http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html (accessed May 9, 2010).