July 25, 2010

III. Initiating Immigration Proceedings

Persons with Mental Disabilities in Immigration Court

Neither Immigration and Customs Enforcement (ICE) nor the immigration courts, overseen by the Executive Office for Immigration Review (EOIR), track how many non-citizens with mental disabilities appear in court and/or are held in immigration detention—a serious omission in light of the possible impact of mental disability on important issues and questions that arise for them in court.[28] Attempts by Human Rights Watch to obtain accurate figures—including submitting a Freedom of Information Act (FOIA) Request to EOIR—achieved widely divergent results.[29]

For example, EOIR provided Human Rights Watch with the number of persons for whom DHS attorneys have requested certification of mental competency. Since 2004, there were 426 requests for such certificates, an average of 71 a year.[30] This surprisingly low number does not comport with other estimates provided by other US government agencies for the number of persons with mental disabilities who appear in immigration court, although may indicate hesitation on the part of ICE attorneys —effectively the “prosecutors” in immigration cases —to act in the interest of justice and have persons assessed for competency.

The Department of Immigrant Health Services (DIHS), a division of DHS that provides health services in some immigration detention facilities, provides a higher estimate of persons with mental disabilities who appear in immigration court. Its data show that two to five percent of immigration detainees in 2008 had a “serious mental illness,” while approximately 10 to 16 percent of detainees had experienced “some form of encounter with a mental health professional or the mental health system.”[31] It is unclear who is included in the definition of “serious mental illness,” and to what extent it includes individuals with cognitive or intellectual disabilities, if at all. But based on ICE statistics showing that 378,582 persons were detained in FY 2008, this would mean that between 7,571 and 18,929 detainees suffered from a “serious mental illness” in 2008, and between 38,000 and 60,000 detainees had some kind of encounter with the mental health system.[32] These numbers are consistent with confidential government memoranda from the same time period that placed the official estimate of detainees with mental illness at 15 percent of the detained immigrant population on any given day—approximately 57,000 people in 2008.[33]

The national criminal justice system is another important resource when trying to obtain an accurate number of persons in immigration proceedings with mental disabilities. The most recent national study on mental health in US jails and prisons found that 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates had a mental disability. While these numbers do not map precisely onto the population in immigration proceedings, a significant number of individuals in immigration detention have passed through the criminal justice system, either at the end of their criminal sentence or years after completing a criminal sentence. The Department of Homeland Security (DHS) estimates that immigrants comprise 20 percent of inmates in prisons and jails.[34] And, the Federal Bureau of Prisons reports that 26.4 percent of inmates in federal prisons are non-US citizens.[35]

Human Rights Watch believes the number of persons appearing in immigration proceedings who have mental disabilities is at least 15 percent of the daily or annual total, or 57,000 people in 2008. We believethis is a fair approximation (and probably an under-estimate) based on the data cited above—including the fact that 45 percent of federal prisoners (those most likely to be non-citizens) had a mental disability—and because the number of individuals with mental disabilities in the immigration system is likely to be higher than official estimates, given that medical screening is currently heavily reliant on self-reporting and is not typically done by a medical professional with a mental health background.[36]

Arrest and Initiation of Proceedings by ICE

Each year, several hundred thousand individuals go through immigration proceedings in the United States (391,829 cases in 2009).[37] Immigration and Customs Enforcement (ICE) brings non-citizens to immigration court when it alleges they should be deported from the country. The court proceedings are meant to clarify if an individual may remain inside the United States, or whether he or she should be deported. Some of these individuals are asylum seekers fleeing persecution in their home countries; others come to ICE’s attention through referrals from local law enforcement agencies, during workplace raids or border crossings; still others, including legal permanent residents, are transferred to ICE after serving sentences for a wide variety of crimes. In rare cases, non-citizens come into ICE custody directly from mental health hospitals or before the start of court-ordered treatment.

There are several scenarios in which non-citizens may find themselves in immigration proceedings. Two of these are:

1. Legal Permanent Residents with a Criminal Conviction: When a legal permanent resident (LPR) has completed criminal justice proceedings for certain criminal convictions, ICE is authorized to begin deportation proceedings to determine whether or not he or she may remain in the United States. These are often initiated in combination with his or her detention by ICE. In some cases, ICE puts LPRs into immigration proceedings due to criminal offenses for which the person was convicted and completed a sentence many years ago. In other situations, ICE can issue an immigration detainer or “hold” prior to conviction, so that the person will be taken immediately from the custody of the criminal justice system to ICE custody. At the “master calendar hearing”— the first of several hearings that occur in removal proceedings that may take place in person or by video-conference—the judge explains the charges against the LPR and discusses whether he or she is eligible for release on bond. The LPR will then have to prepare any legal claims for the subsequent merits hearing.

2. Asylum seeker arriving at the border: A non-citizen entering the United States without legal authorization may be arrested and detained by immigration authorities at the US border. Non-citizens who indicate to the border patrol or other immigration officers that they fear returning to their country will be detained until an asylum officer conducts a “credible fear” interview to determine if the asylum claim has any merit. If the officer finds there is basis for credible fear, the non-citizen is referred to immigration court for proceedings before a judge. If the officer finds that the individual does not have a credible fear of persecution, he or she will be ordered returned to the country of origin without an immigration judge or other authority ever reviewing or knowing of his or her case, unless the applicant appeals against the negative credible fear finding (which required they be informed of the right to do so). If the person does appeal, the judge may either approve the removal order or allow the applicant to proceed to immigration court to present the claim for asylum. The immigration judge has no authority to rule on an arriving asylum seeker’s detention or release.

Federal regulations prohibit ICE from arresting individuals in psychiatric hospitals or institutions and transferring them to ICE custody “until an order of removal has been entered and the Service is ready to remove the alien.”[38] However, attorneys monitoring immigration hearings for the National Lawyers Guild recorded two cases in which ICE arrested a non-citizen at a state hospital and forcibly removed him to an immigration detention center. For example, in one case, a detainee was removed from a state hospital in Massachusetts and appeared in immigration proceedings by tele-video without a lawyer. The presiding immigration judge admonished the government for serving the charging document, or Notice to Appear (NTA), on the detainee while he was in a hospital and placing him in proceedings knowing that his mental impairment rendered him unable to participate in his hearing, as the judge could see from the detainee’s conduct in court.[39]

Such reports of ICE apprehensions from mental hospitals are rare. However, eight states currently require public health staff to notify ICE if they suspect any patients or public benefits applicants are in the US unlawfully.[40] In addition, Florida and South Carolina require that mental health care facilities report to a state agency, which will in turn report the individual to ICE.[41] Virginia and South Carolina both have state laws requiring state mental health facilities to inquire into the nationality and citizenship of those who are admitted in those facilities, and to notify immigration authorities if the patient is not a US citizen.[42]

Once a person is in ICE custody, regardless of the path by which an individual arrives there, they face the complex and time-consuming task of proving that he or she has a lawful basis for remaining in the country. However, some non-citizens will never go through them, or see a judge, if, for example, they are subject to an expedited deportation process.

What Happens in Immigration Proceedings

Immigration laws have been termed second only to the Internal Revenue Code [tax law] in complexity.
—Baltazar-Alcazar v. INS, 386 F. 3d 940, 948 (9th Cir. 2004)

Immigration law and proceedings are incredibly complex, involving a series of hearings and numerous forms filled out by the government, and also the non-citizen if he or she seeks relief from deportation.

 This section illustrates some of the steps that a non-citizen must navigate when he or she is arrested and placed in deportation proceedings by ICE. In 2008 (the most recent figures available), ICE officials arrested and detained 378,582 persons.[43]

When the government seeks to deport someone who has never been lawfully admitted to the country–such as someone who arrives at the border seeking asylum, or is present in the country but “entered without inspection” (EWI)—the individual has the burden of proving that he or she is entitled to admission. However, when the government seeks to remove someone who has already been lawfully admitted to the country–such as a lawful permanent resident (LPR) who has been convicted of a crime that may now make him or her deportable, or an individual who entered on a now-expired tourist visa—the government has the burden to show that the person is deportable “by clear and convincing evidence.”[44] The form of proof varies somewhat depending on where ICE officers apprehend the individual.

ICE officers initiate removal proceedings against an individual by issuing a Notice to Appear (NTA), which includes reasons why ICE believes the person is subject to removal. The proceedings themselves involve two stages: first, a determination of whether the person is inadmissible or deportable; and second, determination of whether the person is eligible for any discretionary or mandatory relief from removal. An individual in removal proceedings bears the burden of “establishing that he or she is eligible for any requested benefit or privilege,” and if relief is available at the discretion of an immigration judge “that it should be granted in the exercise of discretion.”[45]

Non-citizens may have one or more claims for relief from removal that need to be raised in an immigration hearing. For example, both LPRs and non-LPRs can apply for a form of discretionary relief from removal called “cancellation of removal.” In addition, both LPRs and non-LPRs can apply for asylum, which is also discretionary, for “withholding of removal,” and protection under the Convention against Torture. These are mandatory forms of relief, meaning the court must grant relief if the person produces facts proving eligibility.

LPR Cancellation : Cancellation of removal for LPRs is available only if the individual has been an LPR for not less than five years; has resided in the United States for not less than seven years in any status; and has not been convicted of a group of crimes defined as “aggravated felonies.”[46] (See following sections for discussion of what crimes constitute “aggravated felonies”). An applicant for LPR cancellation of removal must establish all elements of the legal test to be eligible, but still depends on the immigrant judge’s (IJ) discretion in granting cancellation.

Non-LPR Cancellation : A non-LPR can apply for cancellation if he or she has continuously resided in the US for at least ten years; has been of good moral character throughout this time; does not have a conviction for certain crimes (including drug possession and crimes considered either “aggravated felonies” or “crimes involving moral turpitude” (CIMT)[see below]); and can establish that deportation would result in “exceptional and extremely unusual hardship” to a spouse, parent, or child who is a US citizen or LPR.[47] Again, even when an applicant satisfies all these elements, a grant of cancellation depends on an IJ favorably exercising discretion.

Aggravated felonies and CIMTs: Despite the name, “aggravated felonies” can include offenses that are not felonies and do not even carry a sentence. Yet these offenses make non-citizens ineligible for most forms of relief from removal and can have severe consequences because many non-citizens, including LPRs, can make no argument before the court about a right to remain in the country. The Immigration and Nationality Act (INA) identifies 21 types of crimes in the aggravated felony category ranging from tax evasion to rape.[48] Moreover, in some cases, a person allowed to receive drug, alcohol, and even mental health treatment in lieu of a criminal sentence, can still be charged with an aggravated felony by accepting “guilt” in order to enter the court-ordered treatment program.

While some individuals may still be able to claim relief from deportation under the Convention against Torture, for example, a large number of people may have no opportunity to fight deportation or present any evidence about their lives in the US that may weigh against the advisability of their deportation.

Another set of crimes called “crimes involving moral turpitude” (CIMTs) are not defined by the INA, but have been interpreted by immigration courts to include a spectrum of crimes from gambling to murder. In some cases, a person may still be able to ask for relief from deportation even when charged with a CIMT.

Asylum, withholding of removal, and protection under the Convention against Torture:

Non-citizens may also be eligible for mandatory relief from removal if they fear torture or persecution in the country of origin. In proceedings in which the non-citizen is claiming asylum, the non-citizen must show that he or she has a well-founded fear of persecution if sent back to the country of origin on account of race, religion, nationality, political opinion, and/or on account of membership in a particular social group.[49] A non-citizen must claim asylum within one year of arrival in the United States (unless special circumstances apply). Asylum is also a discretionary form of relief. Applicants can be denied asylum for past criminal convictions or other behavior that leads an immigration judge to deny asylum in his or her discretion. Pursuant to regulations, individuals who have been convicted of aggravated felonies are ineligible for a discretionary grant of asylum.[50]

A non-citizen can claim “withholding of removal” under the Refugee Act if the non-citizen can show he or she will “more likely than not” face persecution in the country of origin.[51] There is no filing deadline for such applications, and withholding cannot be denied as a matter of discretion. A non-citizen convicted of certain serious crimes, including many felonies, is deemed ineligible.[52]

A non-citizen who is unable to establish eligibility for withholding of removal under the Refugee Act may still be eligible for mandatory relief under the Convention against Torture (CAT) if he or she fears torture in the country of origin, either by the government or its agents. There is no filing deadline and even individuals convicted of aggravated felonies or particularly serious crimes are entitled to deferral of removal under CAT. To show that a non-citizen should be granted relief under CAT, he or she bears the high burden of showing that it is “more likely than not” that he or she would face torture if deported.

Immigration judges have no discretion to deny relief under CAT or withholding of removal under the Refugee Act, as long as the non-citizen can show that he or she is eligible for such relief. However, unlike asylum and cancellation of removal, these forms of relief do not entitle the individual to reside in the US, they merely protect the individual from removal to a country where he or she would face persecution or torture. The government can deport such individuals to another country, and also withdraw protection if country conditions change.

Appeals of IJ removal decisions: Any decision by an immigration judge—even one that finds that an individual is not removable and terminating proceedings—can be appealed. If either the government or a non-citizen chooses to appeal a final decision of the immigration judge, the party must appeal the decision to the Board of Immigration Appeals (BIA) within 30 days of the immigration court’s decision. An individual who loses before the BIA—but not the government—may file a petition for review of this decision with the appropriate federal circuit court of appeals (circuit courts hear appeals from administrative courts like the BIA) within 30 days of the BIA decision. In very rare cases, the US Supreme Court will review decisions of a circuit court of appeals. Federal district courts, which are the federal trial courts, can only hear petitions for habeas corpus challenging unlawful detention; except in rare cases, these courts cannot hear appeals of a deportation order. [53]

[28]In response to a FOIA Request from Human Rights Watch, the Executive Office for Immigration Review said it does not keep data on the cases where a person in immigration court had or appeared to have a mental disability. Letter from Crystal Souza, Supervisory Program Specialist, Executive Office for Immigration Review, Office of General Counsel, to Human Rights Watch, March 8, 2010 (“EOIR response to HRW FOIA”) (letter on file with Human Rights Watch and reproduced in the Appendix to this report).

[29]In this report, Human Rights Watch refers to ICE attorneys or trial attorneys when talking about the prosecuting authorities in court. It refers to ICE officers when discussing arrest and detention policies. Both the arresting officers and the prosecuting authorities for immigration cases are under the authority of the Department of Homeland Security.

[30]EOIR response to HRW FOIA.

[31]Selected responses from ICE to questions posed by The Washington Post regarding the provision of mental health care to immigration detainees, May 2008, http://media.washingtonpost.com/wp.srv/nation/specials/immigration/documents/day3_ice_mentalhealth.gif (accessed May 11, 2010).

[32]Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment,” The Washington Post , May 13, 2008, (citing internal memoranda that state 15 percent of the detained population on any given day in 2008 has a mental disability)

[33]Dr. Dora Schriro, special advisor on ICE Detention and Removal, “Immigration Detention Overview and Recommendations,” Department of Homeland Security, Immigration and Customs Enforcement, October 6, 2009, http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf (accessed May 13, 2010) (hereinafter “Schriro Detention Report”) p.2.(stating that 378,582 persons were detained by ICE in FY 2008).

[34]Steven A. Camarota and Jessica Vaughan, Center for Immigration Studies, “Immigration and Crime: Assessing a Conflicted Issue,” November 2009, p.1, http://www.cis.org/ImmigrantCrime (accessed May 10, 2010).

[35]Ibid.

[36]The percentage of non-citizens in state correctional facilities is 4.6 percent; by contrast, the percentage of non-citizens in federal facilities is 14.4 percent, according to mid-year 2008 data. US Department of Justice, Bureau of Justice Statistics, “Immigration and Customs Enforcement,” http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=145#pubs (accessed June 2, 2010). Thus, there are three times as many non-citizens in federal prisons as in state prisons, which is likely due to the spike inprosecutions of people in federal court for immigration offenses (such as illegal entry). In the past, these new federal immigration crimes were immigration law violations that were handled in immigration court alone, without the additional layer of imposing federal prison sentences on people.

[37]US Department of Justice, Executive Office for Immigration Review, FY 2009 Statistical Year Book, (Washington, DC March 2010), http://www.justice.gov/eoir/statspub/fy09syb.pdf (accessed April 1, 2010).

[38]8 C.F.R. Sec. 1236.2(b)(2009).

[39]Human Rights Watch telephone interview with John Pollock, National Lawyers Guild, Baltimore, MD, December 7, 2009, discussing a case before the Boston Immigration Court from October 2003. In another case documented by the National Lawyers Guild, ICE removed a man from a psychiatric care facility in Massachusetts and transferred him to a mental health hospital, Columbia Regional Care, in South Carolina. The government maintained in court that ICE removed him from the state hospital because there was not enough bed space; however, a physician from the hospital, intervening in the case as a sympathetic party, testified that the hospital did have space. Human Rights Watch telephone interview with John Pollock, National Lawyers Guild, December 7, 2009, discussing a case before the Boston Immigration Court from November 2003.

[40]Arizona, ARIZ. REV. STAT. ANN. § 1-501(E) (2010), http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/1/00501.htm&Title=1&DocType=ARS (accessed April 2, 2010); California, Cal. Health & Safety Code § 130(b)(c)(3) (2009), http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=00001-01000&file=130 (accessed April 2, 2010); Hawaii, Haw. Rev. Stat, § 336-1 (2009), (“the director of health shall cooperate with the government of the United States in arranging for the deportation of all alien public charges admitted to or hospitalized at the state hospital”), http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0336/HRS_0336-0001.htm (accessed April 2, 2010); Maine, Me. Rev. Stat. Ann. 34-B, § 1433 (2008), http://www.mainelegislature.org/legis/statutes/34-B/title34-Bsec1433.htm (accessed April 2, 2010); Michigan, Mich. Comp. Laws § 404.31 (2010), http://www.legislature.mi.gov/(S(dp3du345vty02c45inrithuu))/mileg.aspx?page=getObject&objectName=mcl-404-31 (accessed April 2, 2010); Mich. Comp. Laws § 404.32 (2010), http://www.legislature.mi.gov/(S(dp3du345vty02c45inrithuu))/mileg.aspx?page=getObject&objectName=mcl-404-32 (accessed April 2, 2010) ; Minnesota, Minn. S tat. § 631.50 (2009), https://www.revisor.mn.gov/statutes/?id=631.50 (accessed April 2, 2010); New York, N.Y. Soc. Serv. Law § 131-k (2009); Rhode Island, R.I. Gen. Laws § 40.1-22-19 (2009), http://www.rilin.state.ri.us/statutes/title40.1/40.1-22/40.1-22-19.htm (accessed April 2, 2010); Virginia, Va. Code Ann. § 37.2-827 (2009), http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+37.2-82 (accessed April 2, 2010).

[41]Florida, An Act Relating to Immigration, S.B. 856, 2010 Leg., Reg. Sess. (Fl. 2010), http://www.flsenate.gov/data/session/2010/Senate/bills/billtext/pdf/s0856.pdf (in Florida, legislation may soon require public health staff to report undocumented immigrants in public mental health facilities to federal immigration authorities. Cristina Silva, “Crackdown urged on undocumented migrants’ mental healthcare,” Miami Herald , March 7, 2010, http://www.miamiherald.com/2010/03/07/1518100/crackdown-urged-on-undocumented.html (accessed March 10, 2010); South Carolina, S.C. Code Ann. § 8-29-10 (2009), http://www.scstatehouse.gov/cgi-bin/query.exe?first=DOC&querytext=alien&category=Code&conid=5367168&result_pos=10&keyval=148 and S.C. Code Ann. § 44-13-40 (2009), http://www.scstatehouse.gov/cgi-bin/query.exe?first=DOC&querytext=alien&category=Code&conid=5367168&result_pos=40&keyval=856 (accessed April 2, 2010).

[42]Va. Code Ann. § 37.2-827 (2009); S.C. Code Ann. § 44-13-40 (2009).

[43]Dr. Dora Schriro, special advisor on ICE Detention and Removal, “Immigration Detention Overview and Recommendations,” Department of Homeland Security, Immigration and Customs Enforcement, October 6, 2009, http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf (accessed July 7, 2010) (hereinafter “Schriro Detention Report”), p.2.This figure refers to the total number of admissions to detention over the course of the year. At any one time, the total number of persons detained is about one-tenth this figure.

[44]8 C.F.R. Section 1240.8(a).

[45]8 C.F.R. Section 1240.8.

[46]Immigration and Nationality Act (INA), 240A(a).

[47]INA 240A(b).

[48]8 U.S.C.A. Section 1101(a)(43).

[49]Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954 (implemented in US law through INA Section 208).

[50]8 C.F.R. Section 208.13(c)(2)(i)(D).

[51]INA 241(b)(3).

[52]A non-citizen may be mandatorily denied protection under withholding of removal if certain grounds apply, for example, if the individual has been “convicted of a particularly serious crime” and so “shall be considered to constitute a danger to the community.” 8 C.F.R. Section 208.16(d)(2).

[53]REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302.