July 25, 2010

I. Methodology

This report is based on 104 interviews, including interviews with 40 non-citizens with mental disabilities. The remaining interviews are comprised of family members, social workers, psychiatrists; immigration attorneys and immigrant rights advocates; and three immigration judges. This report also includes case information about 18 non-citizens who Human Rights Watch was unable to interview, but whose stories and redacted case files were provided by their attorneys and with family permission, where family was available.

Of the 40 non-citizens with mental disabilities interviewed by Human Rights Watch, five were no longer in detention and the remaining 35 were interviewed in one of 12 immigration detention facilities spread across nine states. The facilities visited include Immigration and Customs Enforcement (ICE) detention centers run by the Department of Homeland Security (DHS) and by private corporations, local jails, and one hospital where state forensic patients as well as ICE detainees are held for treatment.

Local attorneys and non-governmental organizations assisted Human Rights Watch to identify non-citizens with mental disabilities willing to be interviewed. Seventeen of the 40 non-citizens interviewed did not have a lawyer. All interviewees provided oral and written informed consent to participate in this report. This report does not include testimony from three additional interviews where the interviewee’s capacity or intent to consent to the interview was in doubt. Interviews in detention facilities were conducted in private, with no ICE or jail staff present, and individuals were assured that they could end the interview at any time and decline to answer any questions.

The identity of interviewees and of individuals whose cases Human Rights Watch learned of through their attorneys have been disguised with pseudonyms; in some cases certain other identifying information has been withheld to protect an individual’s privacy and safety.

Human Rights Watch filed FOIA requests with the Executive Office for Immigration Review (EOIR) and Immigration and Customs Enforcement (ICE), in order to collect information about the population in immigration detention and deportation proceedings with mental disabilities and how immigration courts respond to cases where the person in proceedings appears to be incompetent. The responses were disappointing. EOIR said that DHS has requested certification of a person’s competency in 429 cases since 2004. Except for a factsheet indicating the number of immigration judges employed each year between 1996 and 1999, EOIR did not provide any answers to the remaining 11 questions that Human Rights Watch posed for cases where mental disability was at issue. The EOIR response stated that the EOIR computer system does not maintain the information requested. (Human Rights Watch’s FOIA request and EOIR’s response are attached as appendices to this report). The absence of a system to record and monitor cases where a person in immigration proceedings has a mental disability is problematic as it impairs any future efforts by EOIR or advocates to improve court practices and procedures.

As of July 14, 2010, Human Rights Watch had not received a response to the FOIA that was sent to ICE in December 2009.

Human Rights Watch also filed FOIA requests for the medical records of detainees interviewed in this report who gave permission to see their medical files. Of the 20 requests filed, Human Rights Watch had received medical files for 12 cases as of July 14, 2010. In one case, Human Rights Watch received a FOIA response that included only one page that was blank and marked “referred to another government agency,” and no medical forms at all for an individual whom Human Rights Watch interviewed and appeared to have a severe mental disability since he was unable to verbalize answers to interview questions.