John T. Morton
Assistant Secretary
Immigration and Customs Enforcement
Department of Homeland Security
Dear Assistant Secretary Morton:
We write in response to recent reports that ICE is considering housing some non-citizen detainees with mental disabilities in a dedicated facility. We have heard that this facility may be the site of a pilot program for appointed counsel. We appreciate ICE's good-faith efforts to ensure that non-citizens with mental disabilities are able to receive appropriate and necessary mental health treatment and legal representation while detained. However, we are concerned about potential negative impacts on detainees' due process rights and their mental health.
We appreciate ICE's continued collaboration with the NGO community to develop the risk assessment tool and hope that its use will limit the unnecessary detention of individuals who need mental health treatment and are best able to access it in their communities. Any ICE proposal to improve detainee access to mental health services must weigh the effects on detainees' community-based mental health treatment, existing relationships between detainees and counsel, and family support. In summarizing our concerns, this letter is intended to open a dialogue between ICE and immigration and mental health advocates: We ask to meet with your staff as soon as possible to discuss the issues outlined below and request that you share details about ICE's planning to answer the questions we raise.
I. How will detainees in the new facility be selected?
- Is the purpose of the new facility the delivery of intensive psychiatric treatment? How will the population at the new facility differ from the individuals detained by ICE who currently receive psychiatric treatment in the usual detention environment, at Columbia Regional Care and at other hospitals or psychiatric facilities around the country? What detention standards or licensing/accreditation requirements would apply to the new facility? Will the Health Insurance Portability and Accountability Act apply to its detainees?
- What role will existing mental health treatment, legal representation, family ties, geographic location, and the status of a detainee's removal proceedings play in determining a detainee's eligibility for the new facility? How much weight will ICE give each of these factors in the decision to assign or transfer a detainee to the facility? Could these factors exempt a detainee from transfer?
- What screening mechanism and criteria will be used to determine whether a detainee with a mental disability is a candidate for the new facility? Will the screening process draw on the risk assessment tool ICE has been developing in conjunction with NGOs? Will ICE use the screening results to conduct individualized custody determinations and make a threshold determination whether detention is necessary, moving individuals with mental disabilities into community based treatment and/or alternatives to detention where appropriate?
- What input will detainees, their counsel, treating physicians, and/or family have in the transfer decision? Will there be a process to challenge a transfer decision? We note that a person's impairment may be so severe that lawyers cannot communicate with the client or compile basic biographical information without family assistance. This assistance may be impossible where the individual is detained at a great distance from home. Family and healthcare providers frequently possess key information about the disability that the individual is unable to express him or herself. In many cases, the mental illness itself is a central issue to the relief sought by a detainee. If family members and healthcare providers are unable to attend removal proceedings, such vital information is lost to the court.
- In considering transfers, has ICE assessed the impact of the "integration mandate" of the Rehabilitation Act, see 29 U.S.C. § 791 et seq., which applies to DHS as a mandate to "administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with a disability?" 6 C.F.R. § 15.30(d). Has ICE consulted with the Department of Justice to benefit from its litigation experience regarding the "integration mandate?" Has ICE evaluated its obligations under the U.N. Convention on the Rights of Persons with Disabilities (CPRD)?
II. How will a pilot program to appoint counsel work?
- How does ICE intend to initiate and operate a pilot program to appoint counsel for detainees with mental disabilities at the dedicated facility? How will this program be coordinated with the Department of Justice?
- Will appointed lawyers for transferred detainees be required to have expertise in representing clients with mental and/or developmental disabilities, and, if there is an office of counsel, will it include other professionals such as social workers?
- Will detainees retain their attorneys if they are transferred out of the dedicated facility or released?
- How is ICE evaluating whether prospective sites for a dedicated facility are able to staff a pilot program with adequate numbers of experienced counsel?
- Has ICE considered the option of trying a pilot program for appointment of counsel at one or more of its current facilities where there is a known critical mass of detainees with mental disabilities?
III. Is the dedicated facility intended to house a transferred detainee until the conclusion of his or her removal proceedings?
- How will ICE determine whether a detainee's continued confinement at the dedicated facility is appropriate? Will this be a medical decision alone?
- What administrative and/or judicial review of the length of a detainee's assignment to the dedicated facility will be available?
- Is ICE considering safe release and re-entry procedures for those detainees who are granted immigration relief or whose detention is no longer deemed necessary? If so, will those individuals be released at the location where they were arrested by ICE or in the vicinity of the dedicated facility?
We stand ready to continue our support of ICE's efforts to improve its mental health policies in all areas. We urge ICE, however, to consult promptly with immigration and mental health advocates before designing and implementing any plan regarding noncitizens with mental disabilities. We would be pleased to meet in person to elaborate on our concerns, to hear ICE's response and exact plans, and to propose measures to improve the provision of mental health care to ICE detainees. We would also urge immediate dialogue between ICE and the Medical Advisory Group of health professionals who have expertise and an established consulting relationship with ICE on issues related to care and housing of medically vulnerable detainees.
Thank you for your consideration. We look forward to a response and to working with you and your colleagues to ensure the best policy outcome for detainees with mental health treatment needs.
If you have any questions or would like more information, please contact Joanne Lin, Legislative Counsel at the American Civil Liberties Union, at jlin@dcaclu.org or 202/675-2317.
Sincerely,
American Civil Liberties Union
American Immigration Lawyers Association
Human Rights Watch
Lutheran Immigration and Refugee Service
National Immigration Forum
Physicians for Human Rights
Rocky Mountain Immigrant Advocacy Network
Texas Appleseed
cc: Beth Gibson, Office of the Assistant Secretary
Phyllis Coven, ICE Office of Detention Policy and Planning
Melissa Crow, DHS Office of Policy
Esther Olavarria, DHS Office of Policy
Andrew Lorenzen-Strait, ICE Office of Policy
David A. Martin, DHS Office of General Counsel
Margo Schlanger, DHS Office for Civil Rights and Civil Liberties
Juan Osuna, Department of Justice
