United States

Deportation by Default
Mental Disability, Unfair Hearings, and Indefinite
Detention in the US Immigration System

H U M A N
R I G H T S
W A T C H

Deportation by Default
Mental Disability, Unfair Hearings, and Indefinite
Detention in the US Immigration System

Copyright © 2010 Human Rights Watch
All rights reserved.
Printed in the United States of America
ISBN: 1-56432-665-9
Cover design by Rafael Jimenez
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July 2010

1-56432-665-9

Deportation by Default
Mental Disability, Unfair Hearings, and Indefinite
Detention in the US Immigration System
Summary ........................................................................................................................................... 1
Key Recommendations...................................................................................................................... 9
I. Methodology ................................................................................................................................ 10
II. Defining Mental Disability............................................................................................................ 12
III. Initiating Immigration Proceedings ............................................................................................. 16
Persons with Mental Disabilities in Immigration Court ................................................................ 16
Arrest and Initiation of Proceedings by ICE ................................................................................. 18
What Happens in Immigration Proceedings ............................................................................... 20
IV. Identifying Mental Disability in the Courtroom ............................................................................25
Why Mental Disability Matters.................................................................................................... 25
Identifying Disability in Immigration Court .................................................................................. 31
Stigma and its Legal Consequences ...........................................................................................36
V. Violations of the Right to a Fair Hearing in Immigration Court ......................................................40
Legal Standards Requiring Fair Immigration Hearings ................................................................ 40
Access to Justice in the Absence of Law ..................................................................................... 43
Disempowered Courts................................................................................................................ 47
The Right to a Lawyer ................................................................................................................. 51
An Attorney May Not Be Enough ................................................................................................. 56
When Safeguards Cannot Make Proceedings Fair ...................................................................... 60
VI. Violations of the Right to be Free from Arbitrary Detention ......................................................... 64
Legal Standards Requiring Freedom from Arbitrary Detention .................................................... 64
Inflexible Detention Policies....................................................................................................... 67
Failures to Provide Efficient Proceedings and to Limit Detention ................................................. 71
Prolonged Detention After the Final Order of Removal................................................................. 77
VII. Detailed Recommendations ...................................................................................................... 82
To ensure fair immigration proceedings for people with mental disabilities: .............................. 82
To ensure that immigration courts are aware when a person has a mental disability: ................. 84
To reduce unnecessary detention during immigration proceedings:........................................... 84
To limit prolonged detention after deportation has been ordered: ............................................. 86
Acknowledgements..........................................................................................................................87
Appendices ..................................................................................................................................... 88

Glossary
Board of Immigration Appeals (BIA), an administrative body within the Department of Justice
that hears appeals from immigration courts
Department of Homeland Security (DHS), the United States federal executive department
responsible for protecting the US from terrorist attacks and securing national borders
Department of Immigrant Health Services (DIHS), a division of DHS that provides health
services in some immigration detention facilities
Department of Justice (DOJ), the United States federal executive department responsible for
the enforcement of the law and administration of justice
Executive Office for Immigration Review (EOIR), an office of the Department of Justice
responsible for immigration courts in the US
Freedom of Information Act (FOIA), a US law allowing for the disclosure and release of
information controlled by the US government
Immigration and Nationality Act (INA), created in 1952, the INA is the basic body of
immigration law, governing who can enter, remain and be deported from US
Immigration and Customs Enforcement (ICE), federal law enforcement agency within the
Department of Homeland Security agency responsible for the investigation and enforcement
of US immigration laws
Legal permanent resident (LPR), also referred to as a “lawful permanent resident” in the
Immigration and Nationality Act, a non-citizen in the US who has been officially granted the
right to residence and employment in the US
Immigration Judge (IJ), a judge who adjudicates immigration cases
Notice to Appear (NTA), the charging document ordering a non-citizen to appear in
immigration court and stating the alleged violations of immigration law

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
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.

1

July 2010

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:

3

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

4

Ibid.

5

Ibid.

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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.

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.

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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

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.

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•

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
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).

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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 noncitizen’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
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).

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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
18

8 C.F.R. Section 1240.4.

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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

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).

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Key Recommendations
To the United States Congress:
•
•

Expressly provide appointed counsel for non-citizens with mental disabilities in
immigration proceedings.
Amend Section 236(c) of the Immigration and Nationality Act (INA) to exempt from
mandatory detention vulnerable groups, including non-citizens with mental
disabilities.

To the Department of Justice:
•

Issue legal guidance, and, where necessary, utilize the rulemaking authority
delegated to the Attorney General in Section 240(b)(3) and Section 103(g)(2) of the
INA, 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; terminate proceedings; and exempt from
mandatory detention individuals with mental disabilities.

To the Executive Office for Immigration Review:
•

Develop regulations and guidelines for immigration judges to ensure that the rights
of people with mental disabilities are protected in the courtroom, including:
o Set a standard for competency to proceed in an immigration hearing.
o Eliminate the regulation that a person who is “mentally incompetent” can be
represented by the “custodian,” meaning the warden of the facility where he
or she is detained.
o Provide mandatory training for immigration judges to recognize mental
disabilities and the judicial obligations to safeguard the rights of people who
have mental disabilities.

To the Assistant Secretary of Immigration and Customs Enforcement:
•
•
•

Renew the commitment to exercising prosecutorial discretion in cases involving
persons with mental disabilities.
Require ICE facility staff and ICE trial attorneys to inform the court (under a system
with suitable protections) when a detainee is suspected of having a mental disability.
Encourage and institutionalize alternatives to detention, including supervised
release to families and placement in community based treatment programs.

Detailed recommendations can be found at the end of this report.

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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

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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.

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II. Defining Mental Disability
Mental disabilities, as discussed in this report, include both mental health problems and
intellectual disabilities. Persons with mental health problems also refer to themselves as
having psychosocial disabilities, a term that reflects the interaction between psychological
differences and social/cultural limits for behavior as well as the stigma that the society
attaches to persons with mental impairments.21 Both psychosocial and intellectual
disabilities are categories that encompass a broad spectrum of symptoms and severity.
This report focuses on individuals whose disabilities significantly impair their functioning
and ability to prepare their case and participate in court, while recognizing the level of
impairment will vary from person to person and, in the case of mental health, may even
fluctuate daily.
Serious mental health problems include diagnosable mental, behavioral, or emotional
conditions that substantially interfere with or limit one or more major life activity. The
Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric
Association (commonly referred to as the DSM-IV) provides standard criteria for identifying
mental health conditions and their known causes, and is used by medical professionals to
diagnose, understand and treat mental health problems. The DSM-IV defines a mental
disorder as a “clinically significant behavioral or psychological syndrome or pattern that
occurs in an individual” which is a “manifestation of a behavioral, psychological, or
biological dysfunction in the individual.”22 The current revised edition of the DSM-IV, known
as the DSM-IV-TR, organizes psychiatric diagnoses into five levels (axes) that include serious
clinical disorders like schizophrenia or bipolar disorder (Axis 1), serious personality
disorders such as paranoia (Axis 2) and traumatic brain injuries (Axis 3).
By contrast, intellectual or cognitive disabilities are permanent developmental limitations.
The American Association on Intellectual and Development Disabilities defines intellectual
disabilities as “characterized by significant limitations both in intellectual functioning and in
adaptive behavior, which covers many everyday social and practical skills. This disability

21

World Network of Users and Survivors of Psychiatry, Manual on Implementation of the Convention on the Rights of Persons
with Disabilities, p. 9 http://www.chrusp.org/home/resources (accessed July 7, 2010).
22

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV-R (4th Edition), 2000, p.xxxi.

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12

originates before the age of 18.”23 Intellectual functioning refers to the ability to learn,
reason, and problem-solve.24 Intellectual disabilities are permanent developmental
conditions that cannot be treated by medication. People with mild intellectual disabilities
might benefit from additional education but are able to live independently with some
support, while people with more severe disabilities may need life-long educational and
social support.25
Although the two conditions are often confused, mental impairments and cognitive
disabilities are different conditions. Mental impairments almost always include disturbances
of some sort in emotional life; intellectual functioning may be intact, except where thinking
breaks with reality (as in hallucinations). A person who has mental health problems, e.g.
who is bipolar or suffers from schizophrenia, can have a very high intelligence quotient (I.Q.),
while a person with cognitive disabilities always has a low I.Q. A person who has a mental
impairment may improve or function fully with therapy or medication, but cognitive
disabilities are a permanent state. Finally, mental impairments may develop during any
stage of life, while cognitive disabilities (unless due to physical trauma) manifest by the age
of eighteen. Many people with intellectual disabilities also have mental impairments;
estimates of the number of individuals with both mental health problems and intellectual
disabilities vary from 10 percent to 40 percent.26
Many non-citizens with mental disabilities may have been unable to access medical
treatment in the community, or they may have never been diagnosed. Others may have
chosen to forgo medication in light of the severe and disruptive side-effects of many
psychotropic medications.27
Not all mental disabilities raise competency concerns. For example, a person who has
depression, anxiety disorder, or schizophrenia may be able to effectively advocate for their
23

American Association on Intellectual and Development Disabilities, “FAQ on Intellectual Disability,”
http://www.aaidd.org/content_100.cfm?navID=21 (accessed May 8, 2010).
24

Ibid.

25

Inclusion Europe and Mental Health Europe, Mental Illness and Intellectual Disability, 2007,
http://digitalcommons.ilr.cornell.edu/gladnetcollect/276 (accessed May 8, 2010).

26

Fred J. Biasini, et al., “Mental Retardation: A Symptom And A Syndrome,” in S. Netherton, D. Holmes, & C. E. Walker, eds.,
Comprehensive Textbook of Child and Adolescent Disorders (New York: Oxford University Press, 2000),
www.uab.edu/cogdev/mentreta.htm.; U.S. Public Health Service. Closing the Gap: A National Blueprint for Improving the
Health of Individuals with Mental Retardation; Report of the Surgeon General’s Conference on Health Disparities and Mental
Retardation, February 2001; Pomona Project, Health Indicators for People with Intellectual Disability: Using an Indicator Set
(2008).

27

This report does not address issues such as voluntary or involuntary treatment for persons with mental disabilities subject
to immigration detention or rights violations related to involuntary admission to psychiatric care facilities.

13

July 2010

rights in immigration proceedings if his or her condition does not infringe on capacity to
comprehend or participate. But in other cases mental disabilities can prevent non-citizens
from performing necessary tasks in presenting their case. Moreover, a non-citizen’s ability to
participate in proceedings is important for all parties because, in many cases, the primary
evidence of deportability comes from the subject of proceedings—for example, their
admission that they are not a US citizen or are unlawfully in the US. Nevertheless, there is no
requirement that judges examine a non-citizen’s ability to proceed in immigration court
without support and legal assistance, and no procedure to follow in rare cases when such
questions are raised.
Human Rights Watch documented cases of non-citizens whose mental disabilities varied
considerably in nature and degree. These included the following four examples of
individuals whose mental disabilities were identified by medical records:
•

•
•

•

Mike C., a Legal Permanent Resident (LPR) from Haiti, has a cognitive disability and
bipolar disorder. He is unable to read or write, and other detainees had to write his
requests for medical attention.
Arlex C., an asylum-seeker from Guatemala, was severely beaten by soldiers and has
a traumatic brain injury that impairs his memory.
Yuri S., an LPR and refugee from the Soviet Union, has post-traumatic stress
syndrome. He was a prisoner of war in Afghanistan in the Soviet-Afghan war, during
which he was forced to perform hard labor and was sexually assaulted in captivity.
He worked with his attorney for almost a year before telling her about the abuse he
experienced and the nightmares he still has.
Denzel S., an LPR from Haiti, has schizophrenia. He was hospitalized before his
arrest by ICE and has been sent to an in-patient psychiatric facility at least four times
since his transfer to a Texas detention facility. He still hears voices and has
attempted suicide twice while in detention.

Most non-citizens with mental disabilities interviewed for this report were long-time legal
permanent residents or persons seeking asylum from persecution in their home countries.
Many had come to the US as young children and had family who were US citizens; in several
cases, family members in the US were helping to find legal representation and community
treatment for their relatives.
While their disabilities affected their capacity to grasp legal proceedings or concepts, many
had held (mostly menial labor) jobs in their adult lives. Some individuals told Human Rights

Deportation by Default

14

Watch they had committed petty crimes, such as shoplifting, drug use, and trespassing,
after failing to take their medications, and spoke with regret about past mistakes and
eagerness to start mental health treatment again. Others had lived on the margins of society,
had committed more serious crimes, been homeless or unable to hold a job.
Some individuals interviewed for this report were alienated from family members who found
their disabilities and their symptoms offensive or threatening. Several had been previously
found incompetent to stand trial by a criminal court and were now in immigration court,
without legal representation, facing deportation. Some interviewees could be difficult to
interact with when delusional, aggressive, or unresponsive to questions.

15

July 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

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).

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16

“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
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).

17

July 2010

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.

Thus, there are three times as many non-citizens in federal prisons as in state prisons, which is likely due to the spike in
prosecutions 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).

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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 noncitizen 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

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.

19

July 2010

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)

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/cgibin/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_Ch03210344/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/cgibin/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/cgibin/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).

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20

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,”

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.

21

July 2010

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

46

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

47

INA 240A(b).

48

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

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22

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 non49

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).

23

July 2010

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

53

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

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IV. Identifying Mental Disability in the Courtroom
It’s just because I’m sick…. If I had that hearing again, I would like to explain
to the judge [that] it’s not because I’m a bad person. When I was on my
medication, I wasn’t in any trouble…. Sometimes it’s like the world is closing
in on me…. Everything I worked for, the judge just took it away.
—Paul D. (pseudonym), Florence Service Processing Center, Florence, AZ,
January 6, 201o.
[S]ince I have been classified as disabled I have been struggling with these
entities that work through external devices. They have communication with
me via an apparatus in outer space. They enter my mind when they try to
make a connection with the United States and in that sense they invade my
privacy. They use me as a guinea pig and they know how I’m doing and when
I’m doing it.
—Pacifico G. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

Why Mental Disability Matters
How does a person with paranoid schizophrenia explain a credible fear of
returning when they also are having delusional or irrational thoughts?
—Dr. Judy Eidelson, psychologist, Philadelphia, PA, February 16, 2010.
One of the primary reasons why mental disabilities matter in the courtroom is because the
impairments can be so severe that those who have them do not understand what is
happening to them, or what is at stake in the hearings they must attend. For example,
Human Rights Watch met people who did not know their date or place of birth; were
confused about why they were in detention; and were unsure how long they had been in a
detention facility.
For example, one woman was unable to understand a single question asked of her.54 She
stared into space during the interview, shook her head repeatedly, and rocked nervously in
her chair. The interview was eventually terminated because it was not clear if she had
granted consent. In another case, a non-citizen explained his strong belief that the
immigration court was directly linked to a “company” that had allegedly stolen wages from
54

Human Rights Watch interview with Carla F. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

25

July 2010

him.55 Yet another man could not verbalize answers to many questions, or tell Human Rights
Watch what he said to the judge. He shook his head and looked blankly at the researcher
when asked if he knew what would happen when he was deported.56 Asked why he should
stay in the US, Fernando C., an LPR from Mexico, said that he had told the judge he should
stay in the US because, “…I got shot here in the US so I wasn’t going to go [to Mexico] with a
bullet in my head … I was shot here [points to chin] and here [points to forehead]. I think I
must have died because I remember I saw children with wings.”57
Individuals with mental disabilities also risk making statements in court and to immigration
officers that are against their interests, without the ability to understand or mitigate the
consequences. For example, Mamawa P., a refugee from Liberia, told Human Rights Watch
that after being abused by her roommate in the US, resulting in head trauma and losing her
job in Kentucky, she approached immigration officers and asked to be deported. ICE officers
took her into custody and sent her to a hospital for psychiatric care for five weeks.58
According to Mamawa P.:
It was a mistake I made to go to immigration and ask to be sent back to my
country. Now that my frustration is going down, I don’t want to go back … I’ve
been in detention for four months and I never committed any crime. It’s just
because I told them my problems.59
Some people with mental disabilities may make compromised decisions about deportation
even when they have strong claims to remain in the US—including by agreeing to
deportation in order to avoid ongoing detention. Such “voluntary” decisions to be deported
may not be reliable when someone has a significant mental disability, and are particularly
problematic when there is no lawyer.
“I’m thinking of just signing the deportation order because asylum will take too long. I’m
ready to sign the deportation order because I want to get out,” said Leonardo D., a noncitizen from Cuba who had been diagnosed with schizophrenia and was living in a mental
55

Human Rights Watch interview with Javier F. (pseudonym), Florence Service Processing Center, Florence, AZ, January 6,
2010.
56

Human Rights Watch interview with Peter G. (pseudonym), Krome Service Processing Center, Miami, FL, March 1, 2010.

57

Human Rights Watch interview with Fernando C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19,
2010.

58

Human Rights Watch interview with Mamawa P. (pseudonym), Kenosha County Jail, Kenosha, WI, February 3, 2010.

59

Ibid.

Deportation by Default

26

health care facility for five years prior to his arrest by ICE in December 2009.60 Several
detainees with mental disabilities told Human Rights Watch they would sign “whatever” or
take deportation just to get out of the detention facility. In some cases these individuals did
not appear to understand that deportation meant leaving the US.
There are several documented cases in which a US citizen with a mental disability has been
deported.61 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.62 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 and deported to Mexico. Guzman was lost in Mexico
for almost three months before he was found and able to return to his family in California.63
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.64 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 alienage65 against
each of them was uncertain and inconsistent.66 A third interviewee may have a valid claim
for US citizenship according to his attorneys.67
In addition, mental disability may undermine claims to asylum in the United States, or to
other relief available under the Convention against Torture, which rely on the applicant

60

Human Rights Watch interview with Leonardo D. (pseudonym), Port Isabel, Los Fresnos, TX, January 19, 2010.

61

Testimony of Rachel E. Rosenbloom, Human Rights Fellow and Supervising Attorney, Center for Human Rights and
International Justice at Boston College, Before the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and
International Law, Committee on the Judiciary, United States House of Representatives, Hearing on Problems with ICE
Interrogation, Detention, and Removal Procedures, February 13, 2008.
62

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

63

“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).
64

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

65

The term “alienage” used in the immigration and Nationality Act refers to a person’s legal status as a non-citizen.

66

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

67

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

27

July 2010

providing “credible” testimony to support claims to stay in the country.68 If the testimony is
inconsistent, or not in accordance with current country conditions, the court can find the
testimony not credible and the asylum-seeker will be denied asylum.69 Many individuals with
mental disabilities may be unable to provide consistent and credible testimony.
Many represented individuals interviewed for this report were applying for relief from
deportation under the Convention against Torture on the basis they would face persecution
by police and others because of their mental disability; would not be able to receive
necessary mental health treatment; or would be forced into a psychiatric facility with
abysmal and dangerous conditions if deported to the country of origin. Human Rights Watch
documented three cases where an asylum officer found that a non-citizen with a mental
disability could not provide a credible and consistent account of his or her fear of forcible
return.70 For example, Cesar J., was unable to provide his own name, those of his parents, or
cite his place of birth, and frequently answered questions with entirely unrelated responses.
Asylum officer: What are [your] parents name [sic]?
CJ: I don’t know ... I understand my mother was from France and my father
was from India. I did not know anything about them and I went to New York.
And 15 years later I met people who told me they were my parents. And it was
written down on the birth certificate, but it was not accepted in Texas.
Asylum officer: Why didn’t you ever tell immigration you were really born in
Brownsville and had a different name?
CJ: Because I quit because a judge wanted to return me to my sex as a
woman and I got mad.
Asylum officer: So you had been a woman and the judge wanted to return
you to being a woman?

68

8 U.S.C. Section 1158(b)(1)(B)(ii); INA Section 101(a)(42)(A); Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989); 8 C.F.R. Section
1208.13(a); Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997).
69

Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997); According to the EOIR Benchbook for Immigration Judges, “if the
applicant’s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding
may provide a sufficient basis for denial of CAT relief.” Department of Justice, Executive Office for Immigration Review,
Benchbook for Immigration Judges: http://www.justice.gov/eoir/vll/benchbook/index.html (accessed April 20, 2010).
70

Human Rights Watch interview with attorney Rachel Wilson, Tucson, AZ, January 8, 2010; Human Rights Watch interview
with Megan Bremer, February 17, 2010; Human Rights Watch interview with Alexsa Alonzo, Florida Immigrant Advocacy Center,
Miami, FL, March 2, 2010. Ms. Wilson’s client ultimately won asylum in a full hearing before an immigration judge after
obtaining Ms. Wilson’s services and getting a psychological evaluation.

Deportation by Default

28

CJ: That was what the judge told me and all my life I had been a man so I got
mad. He told me that I was born a woman. And as a matter of fact the [sic]
wanted me to go live in Dallas, Texas, and I refused.
Asylum officer: Who wanted you to go live in Dallas, Texas?
CJ: My family gave me as a gift all the states within Texas, but I did not want
that.71
Cesar J. also recounted being the victim of gang rape and a murder in Mexico, where he had
previously lived: “They attempted to change my blood. They came and killed me at once and
I ended up being another person,” he said. At his subsequent credible fear interview, Cesar
said his medication was causing visual hallucinations: “I see things at times now,
revelations and things like memories, but only sometimes.” The asylum officer found Cesar’s
testimony not credible with regard to past mistreatment, but said Cesar could establish a
reasonable possibility of future persecution “on account of his being perceived to be a
homosexual, due to his being HIV+.”72 Despite this determination, which would require
further court proceedings to finally determine legal status, Cesar accepted voluntary
departure to Mexico.73
In another case, Michael A. claimed to be a US citizen whose extended family was killed in
Nigeria. Asked by an asylum officer why he feared deportation to Nigeria, Michael said he
would be tortured: “I don’t know why they want to torture me. I’m a rich man. I’m god. They
want to have me remove the plants from heaven to earth. Jay-Z and R-Kelly are some of
them.”74 At another point in the credible fear interview, Michael claimed to hear his dead
wife and President Obama speaking to him.75 The asylum officer wrote to reviewing
authorities:
Applicant’s testimony was not credible because it was implausible. His
testimony was implausible because it was delusional. It should be noted that
applicant appears to suffer from psychosis. Therefore, this calls into

71

Positive Reasonable Fear Determination, Broward Transitional Center, Pompano Beach, FL, September 17, 2009 (on file with
Human Rights Watch).

72

Ibid. (italics in original).

73

Human Rights Watch interview with Alexsa Alonza, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010.

74

Record of Negative Reasonable Fear Finding and Request for Review by Immigration Judge, June 18, 2009 (on file with
Human Rights Watch).

75

Ibid.

29

July 2010

question the entire credibility of his claim. Moreover, even though applicant
testified that he suffers from no physical or mental conditions, USCIS records
indicate that he was on anti-psychotic medications as recently as March
2009.76
The officer observed in a separate memorandum to the IJ and DHS attorney that Michael was
at risk of persecution and maltreatment on account of his mental disabilities if returned to
Nigeria and should be allowed to present claims for relief to the immigration court.77 Despite
the concerns raised by the asylum officer, an immigration court ordered Michael A. deported
to Nigeria in April 2010.78
Beyond the asylum context, the existence of a mental disability is relevant to how a judge
reviews the merits of a non-citizen’s claim that he or she should be allowed to remain in the
United States. For example, an LPR or non-LPR applying for cancellation of removal in
immigration court must provide evidence about his or her “good moral character” and the
hardship that deportation would cause to his or her legal permanent resident or US citizen
family members.79 Although immigration judges cannot overturn a criminal conviction, the
fact that a non-citizen’s criminal history is related to a mental disability, is relevant in
considering a person’s character and prospects for rehabilitation. As attorney Raha Jorjani
explained:
In cases where judges have discretion, it should matter that someone is
mentally incapacitated where two of the elements [of “good moral
character”]—remorse and culpability—are affected by their mental
disability.80 Moreover, it should affect the judge’s view of the hardship that a

76

Reasonable fear determination of Michael A. (pseudonym), June 15, 2009 (on file with Human Rights Watch).

77

Memorandum to Immigration Judge/District Counsel from Allan Boggio, Asylum Officer, June 15, 2009 (on file with Human
Rights Watch).
78

Human Rights Watch email correspondence with Megan Bremer, Pennsylvania Immigration Resource Center, April 22, 2010.

79

8 U.S.C. Section 1229b. Although good moral character and hardship are supposedly only applicable to non-permanent
residents, immigration judges inevitably incorporate both factors into assessing the claims of permanent residents. Margot
Mendelson, “Constructing America: Mythmaking in US Immigration Courts,” Yale Law Journal, vol. 119 (2010). Moreover,
Mendelson points to the BIA decision in In re C.V.T., finding that factors such as good character and hardship are applicable to
the favorable exercise of discretion for legal permanent residents. In re C.V.T., 22 I. & N. Dec. 7, 11 (BIA 1998). The immigration
judge’s role is to balance the positive factors in favor of allowing a non-citizen to stay in the US with the negative factors
supporting deportation. See In Matter of C-V-T-, 22 I. & N. Dec. 7,11 (BIA 1998); Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA
1978).
80

8 USC. Section 1229b.

Deportation by Default

30

person will experience if returned to their country and forced to start a new
life, possibly without any mental health care.81
For some individuals with mental disabilities, collecting and presenting relevant
biographical and factual evidence may be impracticable without support. For example, an
LPR who is entitled to discretionary relief from deportation must show at least five years
lawful residence in the United States, continuous residence for at least seven continuous
years, and that he or she has not committed a crime considered to be an aggravated felony
under immigration law.82

Identifying Disability in Immigration Court
Immigration court can be an overwhelming experience, irrespective of disability. Given the
nature of the claims raised in immigration proceedings, it is predictable that some
individuals in immigration court may have previous experiences with trauma, such as posttraumatic stress syndrome (PTSD), which may even be triggered by the courtroom
experience.83
For example, Alex K., an LPR and refugee from the former Soviet Union with schizophrenia,
broke down in court, began screaming that he wanted to be deported, and was forcibly
medicated in the courthouse. Alex’s doctor, in court to testify on his behalf, told the judge:
Right now he’s in a very regressed state of mind. He’s in the throes of a panic
attack along with depression which makes him feel horribly anxious…. And
he is sitting in the room with his hands over his head, he’s crying, his eyes
are markedly bloodshot, which is typical of a very progressed state, and I
have to bear in mind that this is a man who is abused when he was a young
boy. And he is reacting as if the system is doing this all over again, only it’s a
different system and he just wants to run and he feels totally hopeless, and
he can’t see any point in going on. 84

81

Human Rights Watch telephone interview with Raja Jorjani, University of California, Davis, School of Law, December 22,
2009.
82

8 U.S.C. Section 1229b.

83

Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA, February 16, 2010.

84

Transcript of December 22, 2004, hearing of Alex K. (pseudonym) (on file with Human Rights Watch).

31

July 2010

Despite this stressful environment and the prevalence of people with mental disabilities,
immigration courts are not designed or equipped to protect, recognize or accommodate the
needs of vulnerable individuals in proceedings.85
A number of factors, explored in greater detail below, contribute to the difficulty of
identifying disability in immigration court, including a lack of obvious symptoms; reliance on
self-identification; lack of records documenting mental illness; and lack of training for
judges and other court officers when it comes to identifying and working with people who
have mental disabilities.

Lack of Obvious Symptoms
Many mental disabilities may not be immediately apparent; and even more recognizable
forms of mental disability may not manifest symptoms in court. As Attorney Christina Powers
notes, “Unless they are actually yelling at you or not participating, a person with mental
illness won’t be recognized.”86 As a result, judges may not recognize that an individual is
struggling to understand immigration court proceedings, or has a mental disability which
affects his or her comprehension.

Reliance on Self-Identification
The immigration detention system and immigration courts rely on individuals self-identifying
if they have a mental disability. However, as one psychologist observed, in many cases
“[p]eople don’t know if they are mentally ill or not; they are not going to be the best
recorders of their condition.”87 People with certain types of mental disabilities, or who have
not been formally diagnosed and received treatment for a mental disability, may not be able
to recognize, identify, and explain their disability. Human Rights Watch interviewed some
individuals with documented mental disabilities who denied having a disability and/or
resisted being defined as someone with a mental disability.

85

“Accommodations” as used in this report refers forms of assistance and support given to persons with disabilities to
ensure their equal participation in court. For example, Dr. Denise Berte suggested that accommodations for a person with a
mental disability in immigration court could include requiring judges to alter the pacing of the questions, to take time to check
in periodically with the individual to make sure he or she is following what is happening, to explain who all the persons in the
courtroom are, and, if a person has post-traumatic stress syndrome, consider removing guards and the gavel from the
courtroom. Human Rights Watch interview with Dr. Denise Berte, Philadelphia, PA, February 15, 2010.
86

Human Rights Watch telephone interview with Christina Powers, Pittsburg, PA, December 7, 2010.

87

Human Rights Watch interview with Dr. Denise Berte, Lutheran Immigrants Rights Service, Philadelphia, PA, February 15,
2010.

Deportation by Default

32

For example, Marco C., an undocumented young man from El Salvador who saw his family
killed by gang members, told Human Rights Watch that he did not suffer from any mental
health difficulties or anxiety.88 However, his attorney later informed Human Rights Watch
that Marco experienced severe post-traumatic stress syndrome, including vivid nightmares
and anxiety, and could not provide a linear narrative to his attorneys.89 Javier F. from Mexico
did not want to share his medical records with Human Rights Watch “because if I do those
records will say that I am crazy and I do not want that because you are very intelligent….”90
Edgar S., a victim of gang violence in Honduras, told Human Rights Watch that he saw a
psychiatrist but had no mental health problems: “They [ICE] sent me to a psychiatric center
and gave me medicine so I wouldn’t be able to defend myself. They are taking advantage of
me … immigration is making it look like I’m crazy. I’m not crazy.”91 Edgar’s medical files,
which Human Rights Watch acquired through a Freedom of Information Act (FOIA) request,
said that at age 16, Edgar “could only spell a few words such as ‘mama’ and his name,” was
“in the mentally deficient range” in math and word recognition, and presented as “a young
person who has been victimized most of his life.”92

Lack of Records
Many individuals with mental disabilities do not have a recorded history of mental disability
or documented history of treatment. Even where records do exist, they may be difficult to
trace, depending on whether they followed the person from prison into detention and in
transfers between detention centers. As advocates and psychologists told Human Rights
Watch, immigration courts are more likely to recognize and accept that a person has a
mental disability if they see extensive documentation from community treatment,
hospitalization, or evidence from the person’s prison and criminal record. One psychologist
who has testified in immigration court said: “Often the judge will say, ‘if there is a mental
health problem, why aren’t you going to treatment? Why do you just claim to have a mental
health problem here in court?’”93

88

Human Rights Watch interview with Marco C. (pseudonym), McHenry County Jail, McHenry, IL, February 2, 2010.

89

Human Rights Watch interview with Eleni Wolfe-Roubatis, Chicago, IL, February 2, 2010.

90

Human Rights Watch interview with Javier F. (pseudonym), Florence Service Processing Center, Florence, AZ, January 6,
2010.

91

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

92

Evaluation of Edgar S. (pseudonym), Children’s Hospital Los Angeles, High Risk Youth Program, December 14, 1998
(acquired through Freedom of Information Request, on file with Human Rights Watch).

93

Human Rights Watch interview with Dr. Denise Berte, LIRS, Philadelphia, PA, February 15, 2010.

33

July 2010

Although many individuals with mental disabilities come into immigration detention from
the criminal justice system, many will not have a recorded history of mental disability or
documented history of treatment. Also, where those records do exist, they may be difficult to
access depending on whether the records followed the person from prison into detention
and in transfers between detention centers.
Individuals with cognitive disabilities, which are not associated with the disruptive
behaviors associated with some mental impairments, may not elicit the attention of ICE
medical staff. As lawyer and clinical professor Troy Elder noted, “For many, contact with the
court system might be the first opportunity for diagnosis.”94 Even individuals who are aware
that they have a disability that affects their functioning, understanding, or participation in
daily activities may not identify themselves to ICE or to the courts. Lionel C., an LPR from
Jamaica with an unspecified mental disability and slow affect, told Human Rights Watch,
“Sometimes I can’t remember things … it gets lost … I have trouble understanding things but
I’ve never asked to see a doctor about that because they want money.”95 Pacifico G., an LPR
from Mexico with schizophrenia who says he is in contact with entities from outer space,
told Human Rights Watch that he didn’t seek medical help when he was homeless: “I spent
years under the bridge trying to figure out what type of system I was in contact with, trying to
find myself and find where my feet were.”96
While identifying non-citizens with mental disabilities may in some instances be challenging,
advocates repeatedly noted that ICE trial attorneys do not raise the issue of the respondent’s
mental disability even where they have such records in the non-citizen’s file.97 John Pollock,
who observed immigration court proceedings in Boston for the National Lawyers Guild,
recalled that in at least one case it was only after the judge remarked that the respondent
appeared to have a mental disability that the ICE attorney revealed the respondent had
indeed previously been found incompetent in a criminal court.98

94

Human Rights Watch telephone interview with Troy Elder, Miami, FL, December 2, 2009.

95

Human Rights Watch interview with Lionel C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

96

Human Rights Watch interview with Pacifico G. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

97

Human Rights Watch interview with Alexsa Alonzo, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010; Human
Rights Watch telephone interview with John Pollock, National Lawyers Guild, Baltimore, MD, December 7, 2009; Human Rights
Watch interview with Dr. Judy Eidelson, Philadelphia, PA, February 16, 2010.; Human Rights Watch telephone interview with
Christina Powers, Pittsburgh, PA, December 7, 2009.

98

Human Rights Watch telephone interview with John Pollock, December 7, 2009, discussing a case witnessed in the Boston
immigration court, November 2003.

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34

Lack of Training
A fourth difficulty when it comes to identifying mental disability in immigration court is the
lack of training for judges and other court officers when it comes to identifying and working
with people who have mental disabilities. One immigration judge said that in the past two
decades, the Executive Office for Immigration Review (EOIR) has only organized two to three
trainings—including one in August 2009—for immigration judges on recognizing people with
mental disabilities.99 A psychologist observed that for people with PTSD, presenting
testimony requires a tricky “balancing act” because “if the person is totally shut down, the
judge may assume the person is apathetic. If the respondent is sobbing on the stand, the
judge accuses them of making a scene.”100
Even if a judge is trained to recognize a mental disability, the proceedings can make
identification difficult. The first time a person sees a judge is at the master calendar hearing
(the first hearing in immigration proceedings). These hearings are often only a few minutes
long and offer little opportunity for judges to observe and question, or for the individuals
themselves to raise their disability and request assistance. The individuals interviewed for
this report generally said they were not asked questions at the master calendar hearing.
In many cases, master calendar and individual hearings are conducted by tele-video, with
the individual in proceedings in a detention center, while the attorney (if there is one), the
judge, and DHS government attorney are in a courtroom. There are frequent complaints
about the quality of the video equipment, and the consequent difficulties in understanding
what is being said. “On the TV, I can’t understand nothing [the judge] says at all,” said Mike
C., who has a diagnosed cognitive disability.101 Moreover, it may be difficult for a judge to
recognize that a non-citizen has a mental disability when he or she appears over video. An
attorney in San Diego, California observed that while video-conferencing was “commonly
used for court hearings” in the city, “for some individuals who suffer from mental illnesses
and experience auditory hallucinations, for example, this may not be appropriate.”102

99

Human Rights Watch interview with Immigration Judge 2 (name withheld), December 4, 2009.

100

Human Rights Watch interview with Dr. Denise Berte, Philadelphia, PA, February 15, 2010.

101

Human Rights Watch interview with Mike C. (pseudonym), Glades County Jail, Glades, FL, March 3, 2010.

102

Human Rights Watch interview with Elizabeth Sweet, ABA Immigration project, San Diego, CA, February 9, 2010.

35

July 2010

Stigma and its Legal Consequences
When people know you have mental illness, people don’t see you the same.
—Christo R. (pseudonym), Port Isabel Detention Center, Los Fresnos, Texas,
January 19.
In some cases, the stigma of mental disability may prevent individuals from self-identifying
in a detention facility or immigration court. Yuri S., a refugee from the former Soviet Union
who later became an LPR, at first didn’t tell his lawyer about the sexual assault he endured
as a prisoner of war in Afghanistan, and said that for years he had difficulty recognizing his
PTSD: “You don’t want to admit it when you have this problem but then you have to.... I was
having nightmares, flashbacks.... I didn’t tell the judge about the PTSD. He’s not really
interested.”103 Yuri’s attorney observed that while his client is “very high functioning,” it was
difficult for him to testify about his mental disability:
[T]he very things that he needs to testify about are going to exacerbate his
mental illness because he has PTSD. There are biological reasons [a desire
not to experience stress or physical reactions to stress] for which he would
be suppressing issues that he might need assistance to express.… There
were a lot of things that he just didn’t want to relive and face in the process.
For a lot of people, left to themselves, they wouldn’t have the will or the
ability to face these things.104
Even where an individual has an attorney, he or she may be reluctant to share intimate
details of his or her life, traumatic experiences, or mental health conditions that are a source
of shame.
Psychologist Judy Eidelson noted that a central feature of PTSD is avoiding reminders of the
trauma experience, and as a result people with PTSD have difficulty constructing a
compelling case for relief:
In the application they often leave off the part of their story that would best
establish their claim. And it’s hard when you don’t trust the authorities. Often

103

Human Rights Watch interview with Yuri S. (pseudonym), York Country Prison, February 17, 2010.

104

Human Rights Watch telephone interview with Megan Bremer, Pennsylvania Immigration Resource Center, York, PA, April 2,
2010.

Deportation by Default

36

it is late in the case when they are able to talk about what happened, and the
government accuses them of making it up.105
Attorneys Matthew Green and Jesse Evans-Schroeder told Human Rights Watch that they did
not know about the mental health problems or sexual abuse suffered by Nat, a female client,
until Evans-Schroeder, a female attorney, joined the legal team. Even then Nat only
discussed details of her impairment and past experiences late in the relationship.106 “That’s
the issue in working with traumatized clients—you don’t always get the facts when it’s
convenient,” said Green.107 Although Nat’s attorneys had a psychiatric evaluation completed
and introduced as new evidence, they met resistance from ICE trial attorneys in getting
continuances to collect and present these new claims. Even after working with her attorneys
for months, Nat was uncomfortable testifying in court about traumatic events. However, her
attorneys presented this evidence in the record, and the judge granted relief.108
Individuals with mental disabilities may legitimately fear punitive consequences if they
reveal their mental disabilities to the immigration court. Lawyer Carmen Chavez observed,
“People might be afraid to self-identify because they think it will affect their chances of
staying here.”109 Similarly, Dr. Eidelson observed, “A lot of women are afraid that their
psychological factors will be used against them—to have their kids taken away, for
example.”110
In another example, Jorge G., a 36-year-old LPR, originally from Mexico, was diagnosed with
severe cognitive disabilities.111 Jorge had lived in the United States since a young age, had
LPR parents and both US citizen and LPR siblings in California, and was facing deportation
based on convictions for driving without a license, drug possession and violation of
probation. Jorge G. proceeded without a lawyer in his immigration hearings, and the
immigration judge (IJ) never inquired into Jorge’s competency or recognized that Jorge had a
cognitive disability. In this case, Jorge was fortunate to find an attorney, Delia Salvatierra, to
represent him on appeal, who was able to get him a psychiatric evaluation (his first
evaluation ever).
105

Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA, February 16, 2010.

106

Human Right Watch interview with Jesse Evans-Schroeder and Matthew Green, Tucson, AZ, January 8, 2010.

107

Human Rights Watch interview with Matthew Green, Tucson, AZ, January 8, 2010.

108

Human Rights Watch interview with Jesse Evans-Schroeder, Tucson, AZ, January 8, 2010.

109

Human Rights Watch interview with Carmen Chavez, Casa Cornelia Law Center, San Diego, CA, February 8, 2010.

110

Human Rights Watch interview with Dr. Judy Eidelson, Philadelphia, PA February 16, 2010.

111

Psychological report of Jorge G. (pseudonym), October 2009 (on file with Human Rights Watch).

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One of the central tensions in this case, Salvatierra observed, was her client’s unwillingness
to talk about his cognitive disability, which had shaped his life but had never been officially
diagnosed until the mental health evaluation for immigration court: “He didn’t want to tell
the court about the issue that has hurt him his entire life. The last thing he wants to tell the
judge is that there is something wrong with him, even though that is the one thing that might
have helped.”112
Indeed, there is some evidence to suggest that there is some basis to fears of repercussions
if people in immigration proceedings reveal they have mental disabilities. For example,
Human Rights Watch documented at least two incidents where ICE raised a non-citizen’s
disability to argue for deportation. In the case of Edwin B., a refugee from Liberia, the
government affirmatively used evidence that Edwin had a mental disability to prove he was
not a credible witness in his hearing and relief should be denied accordingly.113 In another
case, Pacifico G., an LPR from Mexico with schizophrenia, admitted in court that he heard
voices, which sometimes told him to harm other people. The trial attorney used this
evidence to argue that Pacifico was dangerous and should be denied relief, even though
Pacifico has never attempted or committed a violent crime, and testified that he would never
act upon what the voices told him.114 Pacifico told Human Rights Watch that his disability
was used against him:
[T]he DA [sic] says that I am 100 percent individually responsible for my
actions. That I am completely accountable for what I do. He made me sound
like I was a murderer or made it look like I was a potential murderer. That I
could kill at any second…. The legal system exposes me as if I am the one to
blame, but I don’t think this is the fact. I did my best for 17 years to be a
person under control and they make it seem like I am a person who cannot
control myself. As if I am a threat to society.115
Where individuals are afraid that disclosing mental disabilities will have repercussions for
their legal claims, there is a disincentive to report mental health needs and to seek medical

112

Human Rights Watch interview with Delia Salvatierra, Florence, AZ, January 7, 2010; The Board of Immigration Appeals has
since remanded the case to the IJ in light of this new evidence. Board of Immigration Appeals, In re Jorge G. (pseudonym),
March 15, 2010, (“We find that a remand is appropriate so the Immigration Judge can evaluate the respondent’s new evidence
in the first instance…”) (on file with Human Rights Watch).
113

Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

114

Human Rights Watch interview with Pacifico G.’s (pseudonym) attorney (name withheld), January 6, 2010.

115

Human Rights Watch interview with Pacifico G. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

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attention while in detention. Says attorney James Preis, “Sharing information is important to
get good services but there needs [sic] to be protections so that information doesn’t get
misused in violation of due process.”116
At present, there is no transparent system in place to protect this medical information and
separate its use for treatment purposes from misuse in court. Since ICE oversees both the
detention and prosecution of non-citizens accused of immigration violations, there is a real
danger that medical information can be used against a detainee.

116

Human Rights Watch interview with James Preis, Mental Health Services of Los Angeles, Los Angeles, CA, February 12,
2010, and email correspondence, April 13, 2010.

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July 2010

V. Violations of the Right to a Fair Hearing in Immigration Court
I was very tired in court and it was difficult to understand…. Every time, to
remember every detail—I just can’t. Ten years ago, five years ago, to think
back to all that—it’s like reliving all of that.... In court, I said ‘just deport me’
because I thought I would be out of detention then but of course that
wouldn’t have happened. I know that now.
—Alex K. (pseudonym), Chicago, IL, February 4, 2010.

Legal Standards Requiring Fair Immigration Hearings
A fair hearing is central to the protection of a person’s rights, and is the hallmark of a
functional justice system. Human rights law guarantees that all persons appearing before a
judicial proceeding receive “a fair and public hearing by a competent, independent, and
impartial tribunal” in a determination of rights.117
Specific to the deportation context, the International Covenant on Civil and Political Rights
(ICCPR), which the United States ratified in 1992, states in Article 13 that an alien “lawfully in
the territory” may only be deported,
….in pursuance of a decision reached in accordance with law and shall,
except where compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have his case
reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the competent
authority.118
The UN Human Rights Committee, which monitors state compliance with the ICCPR, has
interpreted the phrase “lawfully in the territory” to include non-citizens who wish to
challenge the validity of the deportation order against them. In addition, the Human Rights
117

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, http://www.ohchr.org/english/countries/ratification/4.htm (accessed June 23, 2010), article 14.
According to the Human Rights Committee, the requirement of a competent, independent and impartial tribunal “is an
absolute right that is not subject to any exception.” Human Rights Committee, General Comment 32, Right to equality before
courts and tribunals and to a fair trial, U.N. Doc CCPR/C/GC/32 (2007), http://daccess-ddsny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.pdf?OpenElement (accessed June 23, 2010), para. 19.
118

ICCPR, art. 13.

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Committee has made this clarifying statement: “if the legality of an alien’s entry or stay is in
dispute, any decision on this point leading to his expulsion or deportation ought to be taken
in accordance with article 13 … an alien must be given full facilities for pursuing his remedy
against expulsion so that this right will in all the circumstances of his case be an effective
one.”119
Similarly, Article 8(1) of the American Convention on Human Rights, which the United States
signed in 1977, states:120
Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously established by law … for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.121
Applying this standard, the Inter-American Commission on Human Rights has stated that
deportation proceedings require “as broad as possible” an interpretation of due process
requirements, and includes the right to a meaningful defense and to be represented by an
attorney.122
The ICCPR provides for the right to legal representation during deportation.123 Moreover, UN
principles governing all detainees state that a detainee should receive legal assistance if he
or she is unable to afford a lawyer.124 Recognizing that individuals with mental disabilities
may need additional support and assistance in court, the Convention on the Rights of
Persons with Disabilities—which the United States signed in 2009 but has not ratified—
provides for the right to legal assistance so that individuals with mental disabilities can

119

UN Human Rights Committee, “The Position of Aliens Under the Covenant,” General Comment No.15, U.N. Doc. A/41/40
(1986), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument (accessed June
23, 2010), paras. 9 and 10.

120

American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series
No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the
Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), http://www.oas.org/juridico/english/Sigs/b-32.html
(accessed June 23, 2010).
121

Ibid., art. 8(1).

122

Inter American Commission on Human Rights, Report No. 49/99 Case 11.610, Loren Laroye Riebe Star, Jorge Alberto Barón
Guttlein and Rodolfo Izal Elorz v. Mexico, April 13, 1999, Section 70-1.

123

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, art. 13.
124

Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, Principle 17(2), G.A. Res.
43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988).

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July 2010

participate in proceedings concerning their rights. The CRPD requires that governments
“ensure effective access to justice for persons with disabilities … including through the
provision of procedural and age-appropriate accommodations” and further “take
appropriate measures to provide access by persons with disabilities to the support they may
require in exercising their legal capacity.”125
Historically, US domestic law has recognized the importance of a fair immigration hearing. In
1922, the US Supreme Court observed that deportation implicates the right to liberty,
property and life, “or of all that makes life worth living.”126 Moreover, US law recognizes that
in light of the “drastic deprivations” that deportation may entail, “[t]here must be ‘clear,
unequivocal, and convincing’ proof before a person can be deported.”127
Despite this recognition of the severity of deportation, the US immigration system has no
meaningful safeguards to protect the rights of persons with mental disabilities. There is no
right to appointed counsel, even for indigent persons with mental disabilities who cannot
represent their interests without assistance.
The absence of such safeguards in the immigration system is unique, when compared to
other branches of US domestic law and particularly where a person’s liberty is at stake. In
the US criminal justice system, there is a constitutional right to a lawyer.128 However even
with attorney representation, a criminal defendant cannot be tried and convicted if he or she
lacks the mental competence to understand and participate in the proceedings against him
or her, and to assist in preparing a defense.129
Because immigration proceedings are not criminal, however, the same protections do not
automatically apply. Outside of the immigration context, US law has recognized that in some

125

International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CRPD),
adopted December 13, 2006, G.A. Res.61/106, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008, art. 13.; Ibid., art. 12.

126

Ng Fung Ho v. White, 259 US 276, 284-85 (1922).

127

Woodby v. INS, 385 U.S. 276, 285 (1966) (“This Court has not closed its eyes to the drastic deprivations that may follow

when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land
where he often has no contemporary identification. … There must be ‘clear, unequivocal, and convincing’ proof before a
person can be deported.”).
128

US Constitution, Sixth Amendment. Even before the right to counsel existed in criminal court, US law recognized that “No
trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental
conditions stands helpless and alone before the court.” Massey v. Moore, 348 U.S. 105, 108 (1954).
129

Dusky v. US, 362 US 402 (1960); Drope v. Missouri, 420 US 162, 171 (1975).

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42

non-criminal cases, appointing counsel may be required to protect a person’s rights. 130
However, to date, the right to appointed counsel for non-citizens, including those with
mental disabilities, in immigration court has not been recognized in the United States, in
violation of human rights standards. Without the right to counsel and other legal safeguards,
the US government violates immigrants’ rights to fair immigration hearings and to counsel
when they cannot represent their interests without assistance.

Access to Justice in the Absence of Law
The problem for judges is that there is not enough guidance out there on
what to do; there are few published cases and those that are [available]
show only the situations where the case made it through the proceeding.
—Immigration judge, (name withheld), interviewed December 4, 2009.
US law authorizes the Attorney General of the United States to “prescribe safeguards to
protect the rights and privileges” of non-citizens with mental disabilities in deportation
proceedings through his administrative rule-making authority, and, more generally, to
“establish such regulations” as are necessary to implement the Immigration and Nationality
Act (INA).131 To date, however, the Attorney General has not exercised this opportunity, and
persons with mental disabilities facing deportation enjoy scant protections in immigration
court.132 Individuals who need support are even more vulnerable when attempting to
navigate the courtroom without an attorney, as happens in the vast majority of cases.
Federal regulations require that non-citizens have a “reasonable opportunity” to present,
examine and object to evidence.133 However, these regulations only provide one additional
instruction when it comes to elaborating what a “reasonable opportunity” means for a noncitizen with a mental disability:
130

Under US law, courts must look to the private interests at stake, the government’s interests, and the risk of an erroneous
decision in the absence of counsel to determine if counsel is required in the non-criminal setting. Mathews v. Eldridge, 424 US
319, 33 (1976); Lassiter v. Department of Social Services., 452 US 18, 26-27 (1981).
131

8 U.S.C. Section 1103(g)(2); INA Section 240(b)(3); see also Brue v. Gonzales, 464 F.3d 1227, 1233 (10th Cir. 2006) (noting
the Attorney General’s authority to prescribe safeguards to protect the rights and privileges of non-citizens with mental
disabilities in deportation proceedings).

132

In June 29, 2009, five immigrants’ advocacy organizations submitted a petition for rulemaking to the Attorney General’s
office, requesting the Attorney General promulgate regulations for the appointment of counsel in immigration proceedings;
however, as of July 7, 2010, the Department of Justice has not developed new regulations authorizing appointment of counsel
in immigration court. Catholic Legal Immigration Network, Inc. et al.,”Petition for Rulemaking To Promulgate Regulations
Governing Appointment of Counsel for Immigrants in removal Proceedings,” submitted to the Department of Justice, June 29,
2009, http://www.bc.edu/centers/humanrights/meta-elements/pdf/Petition_for_Rulemaking_for_Appointed_Counsel.pdf
(accessed May 17, 2010).
133

8 C.F.R. Section 1240.10(a)(4).

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July 2010

When it is impracticable for the respondent to be present at the hearing
because of mental incompetency, the attorney, legal representative, legal
guardian, near relative, or friend … shall be permitted to appear on behalf of
the respondent. If such a person cannot reasonably be found or fails or
refuses to appear, the custodian of the respondent shall be requested to
appear on behalf of the respondent.134
This regulation does not address the majority of the instances where a person with a mental
disability can still be physically present in the courtroom, but lacks the ability to understand
or participate in the hearing without accommodations. Rather than calling for the
appointment of counsel when no assistance is available, the statute authorizes the
“custodian”—the warden of the detention facility, if the person is detained—to appear as a
representative.135 This regulation clearly violates the right to fair and impartial proceedings
since the warden or other custodial officer is generally employed by ICE—or is acting under
contractual authority to detain on behalf of ICE, which is also the prosecuting authority.136
Neither this section nor any other regulation or provision in the INA provides a standard for
competence in an immigration proceeding. There is no procedure in place for getting a
psychological evaluation and/or a competency evaluation, and no funding available for
lawyers who request an evaluation of their clients.137
Moreover, even the existence of documented evidence that a person has a mental disability,
including one that demonstrably impairs participation in a legal proceeding without support,
does not trigger additional review or safeguards. For example, a man who went through
immigration court proceedings after he had been found incompetent to stand trial in a
criminal court, and was sent to a state hospital for mental health treatment where he
remained throughout his immigration hearings, provided “no evidence in the record” that he

134

8 C.F.R. Section 1240.4.

135

Ibid.

136

Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71
(1948), art. 10.

137

Although under current regulations, a finding that a person was not competent to proceed would not activate any legal
protections, lawyers and judges may still want a psychiatric evaluation either to demonstrate whether the individual can
credibly testify or to establish a person’s claims where the mental disability is relevant to a person’s legal argument, for
example, if the individual is claiming persecution or a right to humanitarian asylum based on his or her mental disability.

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was “unable to comprehend the nature of the [removal] proceedings,” according to the
Board of Immigration Appeals.138
The only other regulation that discusses a non-citizen’s competence and how to proceed if it
is in doubt states that immigration judges may not accept a non-citizen’s statement that he
or she is deportable if there is no lawyer or other representative appearing with the
individual.139 The IJ must “direct a hearing on the issues” when he or she decides not to
accept a non-citizen’s admission that he or she is deportable, or that he or she is a noncitizen (an “alien” under US immigration law).140 According to one attorney in Arizona,
“Citizenship issues come up a lot; often ICE doesn’t have anything but the admission, and
the admission isn’t reliable when the person is mentally ill.”141
The reliability of an admission may never be raised in immigration court without an attorney;
however, the rule against accepting admissions of “alienage” does not apply where the
individual has a lawyer. If a person with a mental disability told an immigration officer that
he or she was not a US citizen, the judge could allow this statement into the record and
determine that the individual was deportable so long as a lawyer was present in court—even
if the lawyer was not able to communicate with the client, the statement was made outside
the presence of an attorney, and in the absence of supporting documentation.
For example, Gustavo S. was a native English speaker with schizophrenia who gave
inconsistent accounts of his place of birth to both his attorney and to ICE.142 Medical records
from Pike County jail, where Gustavo was held in ICE custody, state that he was “a historian
of questionable reliability.”143 He was charged with illegal entry solely on the basis of his
statement that he born in Honduras, a statement made in detention, outside the presence of

138

Mohamed v. Gonzales, 477 F.3d 522, 525 (8th Cir. 2007) (upholding and quoting from the Board of Immigration Affairs

deportation decision).
139

8 C.F.R. Section 1240.10(c).

140

Ibid. In response to a FOIA request from Human Rights Watch for the number of cases in which an immigration judge has
refused to accept an admission based on the respondent’s incompetence, EOIR stated that its “computer system does not
maintain this information.” EOIR response to Human Rights Watch Freedom of Information Request, March 8, 2010 (see
Appendix).
141

Human Rights Watch interview with Arizona immigration attorney, January 6, 2010.

142

Respondent’s Motion to Terminate Removal Proceedings, August 13, 2008 (on file with Human Rights Watch); Human
Rights Watch telephone interview with Megan Bremer, Pennsylvania Immigration Resource Center, April 2, 2010; DHS Motion
to Temporarily Table Respondent’s Motion to Terminate Proceedings, August 28, 2008 (“A review of the respondent’s New
York criminal history information indicates that the respondent has provided authorities with various places of birth, including
Honduras and ‘Howard Island.’”).

143

Medical Summary of federal prisoner/Alien in Transit, From Marlene Van Houten, DRA to EOIR York, PA, May 8, 2007 (on
file with Human Rights Watch).

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a lawyer, and which he intermittently contradicted.144 The IJ excluded Gustavo’s statements
as unreliable evidence in light of his mental disabilities. But after holding Gustavo for 19
months with only his unreliable admission as evidence of deportability, ICE ultimately
produced a travel document from the General Consul of Honduras, to where Gustavo was
subsequently deported. Gustavo’s attorney noted that this document was obtained at the
request of the DHS using the information provided by the DHS.145 While it may seem
incredible that a US citizen would claim to be from another country, documented cases of
unlawful deportations of citizens illustrate that mental disabilities can cause profound
confusion on even this fundamental issue.146
Beyond the regulations outlined, IJs have little guidance on how to address mental disability
issues in their courtrooms, although there appears to be increasing official recognition that
guidance is necessary. For example, as of April 2010, the Immigration Judge Benchbook
produced by the Executive Office for Immigration Review (EOIR) includes a mental health
section that outlines many constraints that IJs face in recognizing disability in court and
providing assistance to non-citizens with mental disabilities—including virtually no guidance
or published case law to guide judges when the individual before them is not competent, or
represents him or herself without a lawyer.147
Similarly, a 2009 article by immigration judge Mimi Tsankov that appeared in the EOIR’s
legal publication listed several scenarios in which there is no guidance at all for IJs who face
a non-citizen with doubtful competence, including, for example, where an individual asserts
that he or she is competent to proceed despite evidence that the disability interferes with
court participation.148 Tsankov encouraged judges to develop evidence in the record that a
non-citizen’s competency was in doubt, which a reviewing court can consider if the case is
appealed.

144

Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

145

Ibid.

146

For example, Mark Lyttle, a US citizen with bipolar disorder, was deported to Mexico after he told ICE agents while in
detention that he was born in Mexico; he also said that he was a US citizen but ICE agents failed to investigate his citizenship
claims. Kristin Collins, “N.C. native wrongly deported to Mexico,” Charlotte Observer, August 30, 2009,
http://www.charlotteobserver.com/2009/08/30/917007/nc-native-wrongly-deported-to.html (accessed April 11, 2010).
147

IJ Benchbook. See also Mimi E. Tsankov, “Incompetent Respondents in Removal proceedings,” Immigration Law Advisor,
vol. 3 no.4 (April 2009); Human Rights Watch interviews with Immigration Judge 2 (name withheld) December 4, 2009.

148

Ibid pp.17-18.

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However, in reality, few cases where the non-citizen is unrepresented and has a mental
disability will reach a reviewing authority. The overwhelming majority of appeals made from
immigration court are brought by non-citizens with attorneys.149
Moreover, while the new section of the Benchbook is a positive development—reflecting the
concern of IJs that non-citizens with mental disabilities may be denied a fair hearing—it
identifies few strategies that IJs can employ, and no meaningful safeguards or practices that
they must consistently enforce to ensure a fair proceeding.

Disempowered Courts
We are all so overwhelmed. It is truly emotionally exhausting because we are
dealing with the lives of individuals whose survival skills are already so
compromised.
—Immigration Judge 1 (name withheld), interviewed February 11, 2010.
Immigration judges have no legal authority to appoint counsel, and immigration courts have
no other safeguards in place to ensure that non-citizens with mental disabilities receive fair
and impartial immigration hearings. It therefore falls to IJs to help unrepresented noncitizens, who often cannot afford a lawyer, understand court proceedings and procedures.
This adds significantly to the already-heavy caseloads that judges face.
In 2009, for example, EOIR received 391,829 immigration cases for review and employed 232
immigration judges around the country to adjudicate these cases.150 If distributed evenly
among judges, this would require each judge to decide seven cases each day, working five
days a week, full time, without any vacations.
IJs often view the challenge of coming up with ad hoc responses to their caseload of persons
with mental disabilities as beyond their authority.151 Moreover, they often lack the training,
resources and time to provide sufficient assistance to individuals with mental disabilities.
As a result, some have suggested creating a separate docket for cases where non-citizens
have mental disabilities so that a judge with appropriate training in mental health and a
smaller number of cases could provide more attention and assistance. A similar model
exists for unaccompanied children in immigration proceedings, where courts provide
149

EOIR Statistical Year Book FY2009, p.60.

150

EOIR response to Human Rights Watch Freedom of Information Request, March 8, 2010 (see Appendix).

151

Human Rights Watch telephone interview with Immigration Judge 1 (name withheld), February 11, 2010; Human Rights
Watch telephone interview with Immigration Judge 2 (name withheld), December 4, 2009; Human Rights Watch telephone
interview with Immigration Judge 3 (name withheld), December 4, 2009.

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July 2010

separate and specialized hearings with judges who can take more time to explain the
proceedings and their purpose to juveniles.152
The Immigration Judge Benchbook encourages immigration judges to reach out to pro bono
attorneys to secure representation for non-citizens with mental disabilities, a practice
already followed by many IJs where possible. However, given the shortage of pro bono
resources and the inability to appoint counsel, IJs are not able to ensure that non-citizens
with mental disabilities are represented in the absence of an office of appointed counsel.
Where immigration judges attempt to find solutions in the absence of formal guidance, they
may find their authority questioned.153 Moreover, both attorneys for non-citizens and
immigration judges say it is difficult to compel ICE attorneys to provide psychiatric
evaluations and medical records.
One immigration judge told Human Rights Watch, “When a judge suspects that there is a
mental disability, there are problems with enforcing cooperation from DHS because judges
have no contempt authority or tools to use to make ICE cooperate in getting documents to
get external corroboration that there is an illness.”154
The National Lawyers Guild documented one case where the government attorney, who had
repeatedly failed to produce the competency evaluation requested by the IJ, told the court,
“there aren’t sufficient resources for us to do the evaluation.”155 Attorney Benjamin Yerger,
who has struggled to get a competency evaluation for his client Miguel B. despite a request
from the IJ, recalls that “DHS’s position was that they were not going to do [the evaluation],”
and at one point the ICE trial attorney “suggested that the judge could call the mental health
counselor at the jail to order the evaluation.”156

152

US Department of Justice, Executive Office for Immigration Review, Memorandum, “Operating Policies and Procedures
Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children,” May 22, 2007,
http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf (accessed May 14, 2010); Human Rights Watch interview with
Immigration Judge 1 (name withheld), February 11, 2010; Human Rights Watch interview with Immigration Judge 2 (name
withheld), December 4, 2009; Human Rights Watch interview with Immigration Judge 3 (name withheld), December 4, 2009.

153

IJ Benchbook, Part III Sample Orders. The IJ Benchbook attaches one order for a competency evaluation and a second,
follow-up order for requesting DHS to explain its failure to produce the competency evaluation to the immigration court, which
is illustrative of the difficulties immigration judges face in forcing compliance from DHS.
154

Human Rights Watch telephone interview with Immigration Judge 3 (name withheld), December 4, 2009.

155

Human Rights Watch telephone interview with John Pollock, December 7, 2009, discussing a case witnessed in Boston
immigration court in October 2003.
156

Human Rights Watch telephone interview with Benjamin Yerger, Pennsylvania, March 19, 2010.

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In many situations, judges try to correct the imbalance and compensate for the lack of
counsel by taking a more active role in proceedings, such as persuading [ICE attorneys] that
a particular form of immigration relief is available in a given case.157
However, the DHS and Board of Immigration Appeals have both rebuked IJs for actively
engaging in fact-finding and adding to the record in appellate decisions, resulting in the
assumption that judges who assist an unrepresented person with diminished capacity will
have their decisions overturned.158
In most cases that Human Rights Watch documented, immigration judges and attorneys said
that ICE trial attorneys appealed decisions favorable to non-citizens with mental disabilities,
and resisted efforts by judges and immigration attorneys to accommodate non-citizens with
mental disabilities by providing mental health evaluations, sharing medical records with the
court or attorneys, or agreeing to terminate cases where the person in proceedings cannot
participate or protect his or her rights.
Nevertheless, the immigration attorneys and judges interviewed did believe that
collaboration with ICE trial attorneys was possible and could produce equitable results, as in
the case of an undocumented woman from Haiti with mental disabilities whom a criminal
court had found incompetent. Even before an IJ ordered a status conference and
“encourage[d] the parties to consider termination of proceedings without prejudice based on
mental illness or administrative closure on humanitarian groups,” ICE trial attorneys agreed
with the non-citizen’s attorney to support the request for withholding of removal.159
An IJ told Human Rights Watch that the immigration court was capable of working with ICE
trial attorneys and immigration attorneys to terminate proceedings where necessary and to
find community treatment and housing options for individuals when released.160 The EOIR
and DHS should, where appropriate, encourage efforts by ICE attorneys, judges, and
immigration attorneys to ensure that individuals have the opportunity to present claims in
court and obtain release.

157

Human Rights Watch telephone interview with Troy Elder, Miami, FL, December 2, 2009.

158

Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

159

In the Matter of (name withheld), Decision on a Motion Joint Status Conference, January 28, 2010 (on file with Human
Rights Watch); Human Rights Watch interview with Tal Winer, Florida Immigrant Advocacy Center, Miami, FL, March 2, 2010.
160

Human Rights Watch interview with Immigration Judge 1 (pseudonym), February 11, 2010.

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July 2010

Bypassing the Courtroom: Invisible Deportees
Anyone placed in deportation proceedings can sign a stipulated order of removal whereby
the individual waives his or her rights to a hearing and agrees to have a final deportation
order entered against them, thus bypassing any opportunity to raise claims or to get review
from an immigration judge.161 Between 2004 and 2008, immigration officers entered almost
100,000 stipulated removal orders. According to data obtained and analyzed by the
Stanford Immigrants’ Rights Clinic, almost 95 percent of individuals who signed stipulated
orders of removal since 1999 did not have a lawyer.162
Attorney Maunica Sthanki, who previously represented detainees in south Texas, told
Human Rights Watch that there is enormous potential for coercion in situations where a
detainee never has the opportunity to see a lawyer or an immigration judge:
What I worry about is what happens behind the scenes when an individual
isn’t able to understand anything and a deportation officer comes and gets
them to sign a piece of paper and that’s that. …ICE attorneys are under no
obligation to make sure that the individual is competent to sign the order.
The judge has to sign it but the individual isn’t in front of them, thereby
passing over any opportunity for a real evaluation.163
Human rights law prohibits immigration officers from taking “undue advantage” of a
person’s detention to either compel him or her to confess or to self-incriminate.164 The
possibility that detainees will sign stipulated orders of removal because they feel they
cannot endure lengthy periods of detention may only be exacerbated for those with mental
disabilities.
One detainee told Human Rights Watch, “I’m fighting for asylum but I’m not going to get it.
They think because I’m alone, I’ll just give up.”165 Since stipulated orders of removal are
intended to get detainees deported quickly, Human Rights Watch was not able to find any
individuals who had signed stipulated orders of removal.

161

INA Section 240.

162

Jayashri Srikantiah, Stanford Immigrants’ Rights Clinic, and Karen Tumlin, National Immigration Law Center,
“Backgrounder: Stipulated Removal”, November 2008,
http://www.law.stanford.edu/program/clinics/immigrantsrights/pressrelease/Stipulated_removal_backgrounder.pdf
(accessed July 7, 2010).
163

Human Rights Watch telephone interview with Maunica Sthanki, Boston, MA, January 29, 2010.

164

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), Principle
21.1.

165

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

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However, detainees in Florida and Texas reported ICE officers asking them to sign “some
paper” on multiple occasions, even between court hearings. These individuals were not able
to identify the document or its contents, demonstrating the risk that individuals with mental
disabilities in detention without support may not understand what they are signing. One
detainee illustrated his confusion about what deportation means when he said he would
sign the deportation order so he could return to “the streets” to fight his case.166

The Right to a Lawyer
Aliens having representation, I think, could be the most positive thing for
immigration courts that we can really see.
—Julie Myers-Wood, former Assistant Secretary of Immigration and Customs
Enforcement.167
Having legal representation is of the utmost importance for any person facing deportation or
requesting asylum. However, immigration law provides non-citizens only the “privilege” of
being represented by a lawyer at their own expense, and not the right to legal representation
provided by the government.168
For many people in the immigration system, this “privilege” is effectively meaningless given
the cost of retaining legal counsel. As one immigration judge observed, “Mental health
cases involve a great deal of time and energy. Respondents with mental illness are usually
poor people who cannot afford the kind of advocates who are willing to fight for alternatives
to removal.”169
Moreover, there are few legal service organizations and private practitioners who can
provide assistance to the hundreds of thousands of people in immigration proceedings—
particularly in the remote locations where many non-citizens are detained. EOIR data for
fiscal year 2009 shows that 61 percent of non-citizens in immigration proceedings did not
have a lawyer.170 Meanwhile, 84 percent of immigration detainees in 2006-2007 did not have
a lawyer, according to the Vera Institute, a non-profit research and policy institute that also

166

Human Rights Watch interview with Leonardo D. (pseudonym), Krome Service Processing Center, Miami, FL, March 1, 2010.

167

Jennifer Ludden, “Immigration Crackdown Overwhelms Judges,” National Public Radio, February 9, 2009, transcript,
http://www.npr.org/templates/transcript/transcript.php?storyId=100420476 (accessed July 7, 2010).

168

8 U.S.C. Section 1229a(b)(4)(A) (2006 & Supp. 2009); see also 8 USC. Section 1362 (2006).

169

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

170

EOIR Statistical Year Book FY2009, p. G1.

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July 2010

administers the Legal Orientation Program for EOIR.171 Texas Appleseed, a non-profit legal
services organization, found that 86 percent of immigration detainees in Texas were
unrepresented in 2009.172
While immigration law does not afford a right to legal representation, judges, the
government, lawyers and people in proceedings all recognize the importance of having a
lawyer in immigration court. The US government, for example, is always represented by an
ICE attorney in a deportation hearing. Several recent reports on the immigration court system
all cite the need for appointed counsel as a core recommendation, and EOIR recently
deemed the large number of individuals representing themselves as “of great concern…”173
While the government has an interest in providing counsel to improve courtroom efficiency
and achieve just results, it is also clear that having a lawyer makes an enormous difference
to an individual’s ability to obtain relief from deportation: studies show asylum seekers may
be three to six times more likely to receive asylum with legal counsel than without.174

171

Vera Institute for Justice, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal
Orientation Program, May 2008, p.1http://www.vera.org/download?file=1780/LOP percent2BEvaluation_May2008_final.pdf.

172

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, p.13.

173

EOIR Statistical Year Book, G1; American Bar Association, Reforming the Immigration System: Proposals to promote
Independence, Fairness, Efficiency, and professionalism in the Adjudication of Removal Cases, February 2010; The
Constitution Project, Recommendations for Reforming our Immigration detention System and Promoting Access to Counsel in
Immigration Proceedings, December 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.
174

Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, “Refugee Roulette: Disparities in Asylum Adjudication,”
Stanford Law Review, vol. 60, November 2007, p. 340. See also, Human Rights First, “In Liberty’s Shadow: US Detention of
Asylum Seekers in the Era of Homeland Security,” 2004, p.39,
http://www.humanrightsfirst.org/about_us/events/Chasing_Freedom/asylum_report.htm (accessed April 15, 2010) (citing
Georgetown University Institute for the Study of International Migration Analysis of US government statistics showing that
“asylum seekers are up to six times more likely to be granted asylum when they are represented.”).

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Table 1 – Non-citizens (non-detained and detained) in immigration court
without attorneys175
Fiscal Year

Percent of Non-Citizens Appearing in
Immigration Court without Counsel

2009

61 %

2008

60 %

2007

58 %

2006

65 %

2005

65 %

2004

55 %

2003

52 %

2002

55 %

2001

59 % (approximate)

2000

58 % (approximate)

Individuals with mental disabilities that Human Rights Watch spoke to doubted they could
explain their claims without a lawyer.
“If I say something stupid or I lose my papers, I just have to be careful with the judge … I
want help in my case. I need help,” said Angelo, a 45-year-old LPR from Mexico with an
unspecified mental disability and long history of hospitalization.176
Sebastian, a 50-year-old non-citizen from Cuba currently taking multiple psychotropic
medications, echoed the need for a lawyer. “For me court is difficult because I don’t
understand what they are telling me. The judge asks me questions and I have to answer
because I have no one to represent me. I told the judge that I can’t represent myself because
of my nerves and I need an attorney,” he said.177 One man from Vietnam, Minh B., whose
175

Source: US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2009 Statistical Year Book,” Office
of Planning, Analysis, and Technology, March 2010,p.5; US Department of Justice, Executive Office for Immigration Review,
“Fiscal Year 2008 Statistical Year Book,” Office of Planning, Analysis, and Technology, March 2009, p. 5; US Department of
Justice, Executive Office for Immigration Review, “Fiscal Year 2007 Statistical Year Book,” Office of Planning, Analysis, and
Technology, April 2008, p. 5; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2006 Statistical
Year Book,” Office of Planning, Analysis, and Technology, February 2007, p. 6; US Department of Justice, Executive Office for
Immigration Review, “Fiscal Year 2005 Statistical Year Book,” Office of Planning, Analysis, and Technology, February 2006, p.
6; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2004 Statistical Year Book,” Office of
Planning and Analysis, March 2005, p. 7; US Department of Justice, Executive Office for Immigration Review, “Fiscal Year 2003
Statistical Year Book,” Office of Planning and Analysis, April 2004, p. 7; US Department of Justice, Executive Office for
Immigration Review, “Fiscal Year 2002 Statistical Year Book,” Office of Planning and Analysis, April 2003, p. 7; US Department
of Justice, Executive Office for Immigration Review, “Fiscal Year 2001 Statistical Year Book,” Office of Planning and Analysis,
March 2002, p. 24 (fiscal years 2001 and 2000).
176

Human Rights Watch interview with Angelo R. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19, 2010.

177

Human Rights Watch interview with Sebastian F. (pseudonym), Krome SPC, Miami, FL, March 1, 2010.

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July 2010

speech was almost incomprehensible, recalled an immigration judge asking him if he
needed extra help. “I said yes. Then he didn’t do anything,” said Minh B., who told Human
Rights Watch he was receiving medication, although a FOIA request that Human Rights
Watch submitted to ICE for medical records yielded no results.178 Fernando C., a legal
permanent resident from Mexico who has been in the US for 40 years, and was unable to
remember his date of birth or why he was on medication, said that he had been to see the
judge five times since arriving in Port Isabel:
I’ve been to see the judge 5 times since coming to Port Isabel. …I tell him I
can’t represent myself and I need help. The judge just gives me extensions to
see if I can get a lawyer … It’s hard because I have something wrong with my
head, and I have trouble deciding what to tell him.179
Without a lawyer, many individuals with mental disabilities who have viable claims will not
have the chance to present their cases and defend their rights in immigration court—even if
they have reasonable grounds for a defense. A recent report from the City Bar Justice Center
in New York interviewed 158 detained non-citizens without lawyers and suggested that 62
(30 percent) of those interviewed had meritorious claims for relief from deportation, mainly
based on Convention against Torture-related claims.180
Having an attorney not only protects the rights of people facing deportation but also
improves court efficiency and aids the court in reaching just and fair decisions where
lawyers are able to present the legal claims and the facts. Attorney John Pollock, who
monitored immigration proceedings in Boston and observed several cases of persons with
mental disabilities, said, “Things went better when people had lawyers—lawyers got them
evaluations, argued that the person was not competent to stand trial—arguments people
otherwise could not make without judge’s assistance.”181
Attorneys play a vital role not only in crafting and investigating legal claims, examining and
producing evidence, and rebutting the charges and evidence offered by the prosecution, but
also in helping people to participate effectively in court. Attorney Megan Bremer said, “With
178

Human Rights Watch interview with Minh B. (pseudonym), Eloy Detention Center, Eloy, AZ, January 5, 2010.

179

Human Rights Watch interview with Fernando C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19,
2010.

180

City Bar Justice Center, An Innovative Pro Bono Response to the Lack of Counsel for Indigent Immigrant Detainees,
November 2009, p.11.
181

Human Rights Watch telephone interview with John Pollock, December 7, 2009.

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diminished capacity you are not effectively heard. I see myself as a support through that
process so that the voice doesn’t get lost.”182
While individuals without lawyers rely on the judge’s assistance, the government is always
represented by counsel. The resulting inequity (where the state has legal counsel and the
non-citizen does not) may have particularly severe consequences for non-citizens whose
disabilities can be used against them in court.
For example, without an attorney to examine the medical evidence upon which the
government is relying and to provide alternate readings of the medical history, individuals
with mental disabilities are not able to explain medical history in court, and will have to
contend with pejorative conclusions that trial attorneys and judges may draw from evidence
of mental disability. According to attorney James Preis:
Without counsel filtering it, information about a person’s mental health could
be used against the person’s interest, for example by being used
stereotypically to support a claim of dangerousness.183
In some cases, ICE attorneys also recognize that non-citizens with mental disabilities need
legal assistance. Several immigration attorneys recalled ICE attorneys asking them to
represent detainees with mental disabilities in merits hearings, although these requests,
which often came without prior notice or an opportunity to consult with the non-citizen or
investigate the case, raised ethical concerns for the attorneys who suspected the requests
were primarily motivated by a desire to simply facilitate the deportation process.184
Individuals interviewed for this report said that having a lawyer significantly helped their
cases.
Viktor G., 47-year-old refugee from Bulgaria with schizophrenia who has been in the US for
25 years said, “Now that I have a lawyer, there is a big difference in court because she
understands all the legal vocabulary…. Before when I saw the judge, I didn’t know that I have

182

Human Rights Watch telephone interview with Megan Bremer, April 2, 2010.

183

Human Rights Watch interview with James Preis, Mental Health Services of Los Angeles, Los Angeles, CA, February 12,
2010, and email correspondence, April 13, 2010. In this context, dangerousness may be used as a reason to deport, or at least
as a factor that weighs against other sympathetic factors and may be considered when immigration judges decide if an
individual is entitled discretionary relief.

184

Human Rights Watch conversations with immigration attorneys in Arizona and Texas.

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July 2010

a right to stay but now the judge told me that if I won my case I would be able to stay
here.”185
Mike C., a 35-year-old LPR from Haiti with bipolar disorder and limited cognitive functioning
who was becoming depressed, said a lawyer prevented him from mistakenly signing
whatever the immigration officers gave him so that he could get out of detention: “I was
going to sign but my lawyer said don’t sign, fight your case … I had seen the judge 12 times
before I got my lawyer. With a lawyer it is easy in court.”186
While it may be difficult to immediately ensure court-appointed attorneys for all persons in
immigration proceedings, basic standards of fairness under human rights law require that
every non-citizen with mental disabilities, whose disability prevents him or her from
understanding the proceedings or meaningfully participating in them, receives counsel when
they cannot afford an attorney themselves.187
In practice, it may be less efficient to first provide fair competency proceedings for noncitizens with mental disabilities and to separately appoint attorneys for only those whose
disabilities raise competency concerns than it is to ensure the appointment of attorneys for
all non-citizens known to have, or suspected of having, a mental disability when that person
cannot afford a lawyer.

An Attorney May Not Be Enough
Attorney representation is crucial for people with mental disabilities to better navigate the
complex immigration court system. But even this help may not be sufficient given the
challenging, time consuming, and costly nature of presenting such a case.
For example, an attorney may need a psychiatrist to perform a mental health evaluation, and
the help of family members to help fill in gaps in information—such as the client’s date and
place of birth—which he or she would otherwise spend time investigating.
Rachel Wilson told Human Rights Watch that her client Arlex C., an asylum-seeker from
Guatemala with brain trauma and cognitive disabilities, only managed to obtain asylum
because his brother could guide him through the process and provide his history to the
185

Human Rights Watch interview with Viktor G. (pseudonym), CCA Otay Mesa, California, February 10, 2010.

186

Human Rights Watch interview with Mike C. (pseudonym), Glades County Jail, Florida, March 3, 2010.

187

ICCPR, art. 13; Convention on the Rights of Persons with Disabilities, art.12, section 3.

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attorney; moreover, says Wilson, the judge was more inclined to credit the evidence of Arlex’
mental disability when presented with a psychiatric evaluation.188
Attorneys may also need more extensive guidelines than currently exist, given the significant
ethical challenges that can arise when representing clients who cannot understand and
evaluate options and tell the lawyer how to proceed.189 Attorney Brigit Alvarez said, “I
struggled on where to go for ethical guidelines. How can you agree to a legal defense for a
client who doesn’t even know who you are?”190 Most attorney bar guidelines that address the
scenario of an attorney who cannot determine a client’s wishes are designed for criminal
defense attorneys: none address the specific dilemma of a client facing the choice of
extended, even indefinite, detention on the one hand, and deportation on the other.
Additional resources, such as coordinated care, social services, and support from local
groups may also be needed to supplement the help that attorneys can provide in the face of
inadequate post-detention planning by ICE As attorney Sunita Patel observed, “The person
doesn’t just need an attorney; they need a plan for managing their care and also addressing
any related issues.”191
A non-citizen can sometimes boost his or eligibility to remain in the United States and
secure release from detention if he or she can provide ICE and the court with a release plan—
a time consuming task that tends to fall the attorney, when one is present.192 However, ICE
should be ultimately responsible for such planning when it releases detainees, although it
often fails to adequately perform this function.
A report by the Office of Inspector General for DHS found that ICE offices did not have
appropriate release planning or necessary connections to mental health treatment
centers.193 As a result, many non-citizens are released directly to the streets without any
notice being given to family or lawyers, a practice roundly criticized by many advocates who
188

Human Rights Watch interview with Rachel Wilson, Tucson, AZ, January 8, 2010.

189

During research for this report, some advocates suggested to Human Rights Watch that the immigration court should be
able to appoint a guardian ad litem who could help the attorney make decisions on behalf of a client with mental disabilities.

190

Human Rights Watch interview with Brigit Alvarez, Los Angeles, CA, February 12, 2010.

191

Human Rights Watch telephone interview with Sunita Patel, Center for Constitutional Rights, New York, NY, December 21,
2009.

192

A release plan, while not legally required, supplies the place to which an individual will be released (for example, home to
their family, to a residential treatment facility, etc.) and may be provided to assure the court and ICE that a person will still
participate in immigration proceedings outside of detention, if necessary.
193

Office of Inspector General, Department of Homeland Security, ICE’s Compliance with Detention Limits for Aliens With a
Final Order of Removal From the United States, February 2007, (“OIG Final Order of Removal Report”), p.34.

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July 2010

referred to it as “dumping.” Attorney Jordan Dollar—who says that ICE failed to notify him
when it released his client with a mental disability from a rural Florida jail—says such lack of
planning is endemic to the system:
Once their time is up, ICE just dumps them with no resources. It contradicts
their argument that ICE should be able to hold these detainees for a long
time … [ICE claims release planning] isn’t their issue but this is what happens
when you detain mentally ill people—it becomes your issue.194
Inadequate post-release care means it often falls to local groups and attorneys to fill in the
gaps. “The Deportation Officers rely on us to find solutions like programs that people can be
released to,” one attorney in Arizona said.195
In cases that Human Rights Watch documented where a non-citizen was able to return home
to family and community treatment, release occurred through coordinated care and
advocacy from family, attorneys, social services and, in a few cases, ICE trial attorneys and
IJs who identified cases where a person in proceedings had a mental disability and a claim
for relief and used appropriate discretion to terminate a case and encourage coordination
between all parties.
The range and complexity of services that individuals with mental disabilities require means
it is insufficient to simply expand the pro bono services of immigration attorneys, most of
whom are already over-burdened. In the criminal justice system, public defender offices
often contain in-house and liaison professionals who work to place people in appropriate
rehabilitation and treatment programs. In the immigration system, an office of appointed
counsel similar to the public defender office could provide such services, and help devise a
post-release plan that ICE and IJs could weigh when evaluating and preparing for a
detainee’s release.

194

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

195

Human Rights Watch interview with Arizona attorney, January 6, 2010.

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Release and Rehabilitation in California
In California immigration lawyers and advocates have been able to obtain release for their
clients and enroll them in community mental health treatment.
Attorney Veronica Barba represented an LPR with schizoaffective disorder in a cancellation
of removal case. At the final hearing, she recalls, the IJ continued the hearing so that Barba
could find her client a place to stay where he would receive proper treatment. Says Barba,
“Luckily, the LA Department of Mental Health approved him for enrollment in their Adult Full
Service Partnership program. After release from immigration custody, he was admitted to a
board and care facility in LA, where he is still voluntarily living.”196
In California, the Mental Health Services Act (Proposition 63) provides voluntary communitybased mental health services to people with mental disabilities, irrespective of immigration
status. According to James Preis, executive director of the Mental Health Advocacy Services,
Inc., this “provides a model of intensive community services that wraps around the
individual in the community and provides the individual with whatever it takes, including
housing to aid in their recovery.”197 Not only is this model of service delivery effective, says
Preis, but by providing housing, it also responds to the concerns of immigration judges and
immigration officials as to where a detainee can be released. The effectiveness of this
program in Los Angeles County, notes psychiatric resident Kristen Ochoa, is due to the
county Mental Health Court Community Reintegration Program, which links people to
treatment and provides specialized programming on rehabilitation skills and reintegration
into the community.198
Lawyers agreed that having mental health services available in the community was both
persuasive to immigration authorities and immigration judges in arguing for release, and
meant people were able to reintegrate into their communities and receive treatment.
Survivors of Torture, International (SOTI) in San Diego provides psychological counseling
and related services to individuals coming out of immigration detention. Says Kathi
Anderson, Executive Director at SOTI, “It is a huge relief for attorneys to have case
management services available when people are released. There hasn’t been a model to pull
together the mental health and legal communities before.”199

196

Human Rights Watch email correspondence with Veronica Barba, ABA Immigration Project, April 15, 2010.

197

Human Rights Watch interview with James Preis, Mental Health Services of Los Angeles, Los Angeles, CA, February 12, 2010,
and email correspondence, April 13, 2010.
198

Human Rights Watch email correspondence with Kristen Ochoa, Los Angeles, CA, April 15, 2010.

199

Human Rights Watch interview with Kathi Anderson, Survivors of Torture International, San Diego, CA, February 8, 2010.

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July 2010

When Safeguards Cannot Make Proceedings Fair
Appointing counsel and providing coordinated services would ensure that most non-citizens
with mental disabilities have an opportunity to defend his or her rights, and obtain a just
and appropriate result in immigration court.
However, occasionally a lawyer will not be enough to safeguard the rights of a non-citizen
who has a mental disability that almost completely impairs ability to communicate with
counsel or the court; express interests; make key decisions even with support; comprehend
the meaning of deportation; or provide basic biographical information needed to determine
the correct strategy to pursue. In such cases, where no accommodation will enable a person
with mental disabilities to proceed effectively in court or ensure a just and accurate result,
immigration judges need power to terminate proceedings.
Immigration courts and attorneys may never be able to determine the rights, interests and
identity of a person with mental disabilities in proceedings. Nor may they be able to fulfill
the basic purpose of immigration law—to allow those with a lawful basis to remain in the US
and deport those without such a basis. As Attorney Elizabeth Sweet observed:
There are serious questions for an attorney when representing someone who
suffers from a severe mental disability. Does the attorney know everything
they should about their client and the family history? Is the attorney aware of
all the legal claims that could be raised? In this type of situation, there is an
argument that proceedings should be terminated.200
Even the assistance of a lawyer, family, case workers, ICE and DHS staff may not solve the
problem that a person with significant mental disabilities cannot provide foundational
information for his or her case. As one attorney told Human Rights Watch:
[Y]ou can’t say there is no basis for relief if they can’t participate in the
proceeding. It is impossible to tell if there is a well-founded fear of returning
to the country of origin; and until courts are able to make that determination
with any certainty, it is impossible to say there is no relief.201

200

Human Rights Watch interview with Elizabeth Sweet, American Bar Association Immigration Project, San Diego, CA,
February 9, 2010.

201

Human Rights Watch interview with immigration attorney in Arizona, January 6, 2010.

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This situation is more than theoretical. Human Rights Watch terminated an interview with
one detainee because the interviewer could not obtain informed consent, and two more
where informed consent was in doubt by the end of the interview; DHS representatives at
one facility determined that an individual whom Human Rights Watch planned to interview
was not competent to consent to or participate in an interview. The individual whose
interview Human Rights Watch terminated at the outset could not understand or answer any
questions; she did not understand what a court was and could not say if she wanted to stay
in the US. Human Rights Watch interviewed one man with mental disabilities facing
deportation who did not know his date of birth.202 Another did not know what a judge was.203
The immigration system already anticipates discretion in canceling a proceeding that would
otherwise waste government resources without serving government interests. For example,
immigration officers can withdraw a notice to appear if the “circumstances of the case have
changed after the notice to appear was issued to such an extent that continuation is no
longer in the best interest of the government.”204 The DHS has also encouraged trial
attorneys to work with ICE and other agencies to discourage issuing a Notice to Appear (NTA)
(the charging document that commences immigration proceedings) where, for example,
“sympathetic humanitarian factors” would instead recommend deferring prosecution.205
However, advocates whom Human Rights Watch interviewed said that they had not seen
ICE—which retains initial responsibility for charging or not charging a non-citizen—exercise
much prosecutorial discretion. They recommended that ICE incorporate an individual’s
mental disability into its prosecutorial decisions, particularly when it is severe and ongoing.
One immigration judge told Human Rights Watch:
There should be a screening process implemented to determine whether
NTA’s should be filed or if there are alternatives to removal proceedings.
Systems can be put in place to protect the interests of the public and the
mentally ill. We need some judicial process that is not adversarial; I don’t
trust ICE/DHS to determine what is best for the mentally ill.206

202

Human Rights Watch interview with Fernando C. (pseudonym), Port Isabel Detention Center, Los Fresnos, TX, January 19,
2010.

203

Human Rights Watch interview with Miguel B. (pseudonym), York County Jail, York, PA, February 17, 2010.

204

8 CFR Section 239(7).

205

William J. Howard, Principal Legal Advisor, Department of Homeland Security, Memorandum to All OPLA Chief Counsel,
“Prosecutorial Discretion,” October 24, 2005.

206

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

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Existing regulations and case law imply that the presence of counsel in immigration court
outweighs or implicitly cures any unfairness, even if a non-citizen does not understand the
proceedings against him or her.207 “Trying to fix the regulations misses the point; these
people should not be in removal proceedings in the first place,” said one immigrations
judge.208
In contrast, in the criminal justice system it is not enough to have a lawyer: the state cannot
prosecute and convict a criminal defendant who is mentally incompetent and therefore lacks
“sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding,” a “rational as well as factual understanding of the proceedings against
him,” and cannot “assist in preparing his defense.”209
Immigration cases do not have a similar standard. Once the NTA has been filed, immigration
judges have no discretion or authority to end proceedings if they believe it is impossible to
assure their accuracy and fairness, nor have they power to decide if a case belongs in a
courtroom at all. Judges are only explicitly permitted to terminate proceedings to allow a
non-citizen to pursue a naturalization application, or if evidence shows the government has
not proved removability.210 Immigration judges are permitted to administratively close a
case—a temporary measure—but only with the agreement of both parties.211
However, in practice, IJs who do try to terminate cases often find their authority questioned
and their position without support from the EOIR or reviewing authority (the Board of
Immigration Appeals). One immigration judge explained, “We can terminate a case but DHS
can appeal; there is nothing published on the right to terminate a case in this situation.”212
Even when trial attorneys agree to terminate proceedings or find equitable solutions, the
message from DHS is often to recalendar the cases and proceed against the individual.213
This leaves immigration judges in a bind:

207

Mimi E. Tsankov, “Incompetent Respondents in Removal proceedings,” Immigration Law Advisor, vol. 3 no.4 (April 2009).

208

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

209

Dusky v. US, 362 US 402 (1960); Drope v. Missouri, 420 US 162, 171 (1975).

210

8 C.F.R. Section 1239.2(f); EOIR 2009 Statistical Year Book, p.7.

211

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).
212

Human Rights Watch telephone interview with Immigration Judge 2 (name withheld), December 4, 2009.

213

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

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…I feel so impotent and so powerless. I sit there thinking, is anybody looking
at this the same way I am? Why is this person in my courtroom? Why have I
been asked to do THIS?214
The new section on mental disability in the Immigration Judge Benchbook proposes that IJs
might terminate proceedings where the non-citizen’s mental disability makes participation
in immigration court impossible. This section also admitted that the Board of Immigration
Appeals has never upheld an immigration judge’s decision to terminate a proceeding on the
basis that the non-citizen’s mental health condition made the proceeding unfair. However,
the Benchbook states that “it remains an open question under the Fifth Amendment Due
Process Clause whether proceedings could be terminated to assure fundamental fairness
where an alien is severely or profoundly incompetent, and no person can be identified to
protect his or her interests other than a DHS custodian.”215
Without authority to terminate proceedings and corresponding procedures to determine that
a person cannot proceed in immigration court, IJs may be powerless to ensure a fair hearing
for a person with significant mental disabilities who cannot participate in hearings or
understand the content and consequences of statements in court. Without a mechanism for
resolving these cases, the immigration system effectively renounces these cases, allowing
individuals with mental disabilities to languish in detention until the system gets it right.

214

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

215

IJ Benchbook, “Mental Health Issues,” April 2010.

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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

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.

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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
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).

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July 2010

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 noncitizens 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.
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.

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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
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).

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July 2010

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.

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.

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68

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

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

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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.

(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.

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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

249

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

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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
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.

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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.

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_decisio
n/ (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).

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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
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.

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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

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.

75

July 2010

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.

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.

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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 180day 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.

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/guidancerelatingto8cfr241.4continueddetentionofaliensbeyondtheremov
alperiodnov142007.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).

77

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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 “noncooperation” 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.

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.

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“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 seconddegree 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:

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).

79

July 2010

[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

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.

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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.

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.

81

July 2010

VII. Detailed Recommendations
To ensure fair immigration proceedings for people with mental disabilities:
To the United States Congress:
•
•

•

•

Expressly authorize mandatory appointment of counsel for non-citizens with mental
disabilities in immigration proceedings, and appropriate necessary funds.
Amend the Immigration and Nationality Act (INA) to provide immigration judges with
authority to order the release from detention of vulnerable non-citizens otherwise
subject to mandatory detention under conditions that ensure their access to
treatment.
Amend INA to provide immigration judges with authority to terminate proceedings in
cases where the severity of a person’s mental disability makes ensuring fair
proceedings impossible.
Pass The Protect Citizens and Residents from Unlawful Raids and Detention
Act (S.3594) to ensure that US citizens are not erroneously detained or deported.

To the Department of Justice:
•

•

Issue police guidance and, where necessary, utilize the rulemaking authority
delegated to the Attorney General in Section 240(b)(3) and Section and Section
103(g)(2) of the Immigration and Nationality Act to develop regulations that protect
the rights of non-citizens with mental disabilities in immigration court proceedings,
including authorizing immigration judges, in appropriate circumstances, to appoint
counsel, terminate proceedings, and exempt individuals from mandatory detention.
Create an office of appointed counsel in immigration cases that should receive
specialized training on mental disabilities.

To the Executive Office for Immigration Review (EOIR):
•

Develop regulations and guidelines for immigration judges to ensure that the rights
of people with mental disabilities are protected in the courtroom, including by:
o Setting a standard for competency to proceed in an immigration hearing.
o Eliminating the regulation that a person who is “mentally incompetent” can
be represented by the “custodian,” meaning the warden of the facility where
he or she is detained.

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Directing immigration judges to order a mental health evaluation where
competency is in question.
o Expressly prohibiting immigration judges from relying upon admissions of
alienage by people with mental disabilities as the sole basis for the charge of
removability even when represented by counsel or family or other support
person if made out of court and/or before the person is represented.
o Restricting the use of video-conferencing in cases where the non-citizen has,
or appears to have, a mental disability.
Create a mental health docket, similar to the ORR juvenile docket, by which cases
where a person has a mental disability can be afforded more time and specialized
attention by immigration judges.
Expand and regularize training for immigration judges and other court staff,
including interpreters, on recognizing mental disability in the courtroom and
providing necessary accommodations.
Reject stipulated orders that lack protections for non-citizens with mental disabilities;
Work with disability rights and mental health experts to develop courtroom
accommodations that will assist non-citizens with mental disabilities to participate
in court.
o

•

•

•
•

To the Assistant Secretary of ICE:
•

•

Reinforce commitment to exercising favorable prosecutorial discretion in cases
where it appears the non-citizen has a mental disability and is either incapable of
presenting their case in court, or likely to prevail in his or her action for relief,
including by:
o Dismissing legally insufficient cases where the only evidence of alienage and
deportability is the admission of a person with a mental disability.
o Not opposing or appealing a grant of relief by the immigration court where
the factors in an individual case favor the grant of relief.
o Moving to terminate proceedings and withdraw the NTA in cases where the
person is not able to present their case, even with legal assistance, due to
the severity of his or her mental disability.
o Joining in a “motion to reopen” in cases where a person with mental
disabilities may be eligible for relief but was unable to present their claims in
the prior hearing on account of their disability.
Provide trainings for ICE trial attorneys on recognizing and interacting with
individuals with mental disabilities in the courtroom, and to ensure that they
implement the policies of the Principal Legal Advisor as set forth above.

83

July 2010

•

•

Ensure the cooperation of ICE trial attorneys in expeditiously providing the noncitizen’s medical records and mental health evaluations to the court for use solely in
determining competency and the need for appointment of counsel.
Develop a firewall to protect detainee medical information so that non-citizens’
medical background can be used to accurately assess treatment needs and parole
eligibility but will not be provided to the immigration court except for the purpose of
determining competency and the need for appointment of counsel.

To the US Citizenship and Immigration Services (USCIS):
o

Develop guidance on asylum applicants to identify and accommodate individuals
with mental disabilities and route appropriate cases to EOIR’s mental health docket.

To ensure that immigration courts are aware when a person has a mental
disability:
To the Assistant Secretary of ICE:
•
•
•

•

Require a panel of medical professionals to conduct initial and periodic mental
health screenings and evaluations in immigration detention facilities.
Require ICE staff and trial attorneys to inform the court when a non-citizen is
suspected of having a mental disability.
Develop a firewall to protect detainee medical information so that non-citizens’
medical background can be used to assess competence and need for appointment
of counsel but will not otherwise be provided to the immigration court for use in
removal proceedings except by the detainee or his/her counsel.
Continue to work with advocacy organizations to develop a risk assessment tool that
recognizes mental disability as identified through SSI benefits, documented history
of mental disability, etc., and to explore Alternatives to Detention for those who
cannot be released.

To reduce unnecessary detention during immigration proceedings:
To the United States Congress:
•

Amend Section 236(c) of the Immigration and Nationality Act to permit an exception
to mandatory detention for vulnerable groups, including non-citizens with mental
disabilities.

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84

To the Assistant Secretary of ICE:
•

•
•
•

•

•

•
•

•
•
•

Ensure all policies on classification and detention of persons with mental disabilities
require placement in the least restrictive setting during their immigration
proceedings, in accordance with federal and human rights law.
Ensure that ICE officers adhere to federal law barring arrests of non-citizens receiving
treatment at psychiatric facilities.
Ensure that the policy favoring release when asylum is granted but ICE takes an
appeal is applied, particularly in cases of persons with mental disabilities.
Require involvement of medical professionals in facility mental health screenings
who can recommend alternative placements to detention for individuals with
significant mental disabilities.
Clarify that dispositions by “problem-solving courts” such as mental health courts
and the effect of these decisions on the charges against a non-citizen will not be
considered to be convictions for purposes of the INA.
Discontinue arrests of non-citizens with mental disabilities ordered to in-patient
mental health treatment by criminal courts after finding a non-citizen defendant to
be mentally incompetent.
Encourage and institutionalize the use of release on one’s own recognizance and,
when necessary, bond where a detainee has a mental disability.
Ensure that detainees’ family and attorney are promptly informed when a detainee is
removed from a detention center for emergency, short-term or long-term mental
health treatment.
Ensure that a detainee’s family and attorney have access to any detainee transferred
to a psychiatric facility for mental health treatment.
Develop procedures to be used at every facility where ICE detainees are held that
identify detainees in need of in-patient psychiatric care.
Prohibit transfers of immigration detainees with mental disabilities away from family
and community mental health services.

To the Executive Office for Immigration Review (EOIR):
•

Establish guidelines for administrative closure where a judge determines that a
person in immigration proceedings is incompetent so that administrative closure
would include:
o The authority to order release of an individual from detention.
o Periodic review by a court if the non-citizen remained in detention with the
authorities required to justify continuing detention.

85

July 2010

•

Require individualized hearings to determine whether detention is appropriate for
individuals with mental disabilities once the court is on notice that a person has a
mental disability, notwithstanding any otherwise-applicable laws mandating the
detention of such individual.

To limit prolonged detention after deportation has been ordered:
To the Assistant Secretary of ICE:
•

•

•

•

Monitor and enforce the 90-day and 180-day post order custody review process for
all detainees, especially those with mental disabilities who may not be able to
advocate for their own release.
Ensure that people with mental disabilities are not indefinitely detained for “failing
to cooperate” with removal by:
o Providing appointed counsel throughout the post-order custody review
process.
o Clearly communicating to detainees what is expected of them during the
post-order process and providing accommodations to detainees with mental
disabilities.
o Exercising discretion not to charge a person with “failure to cooperate” or
refer for federal prosecution where the person’s mental competency is in
question, and not continuing detention on that basis.
o Training DRO staff on how mental disabilities may affect the ability to comply.
Work with local mental health facilities and NGOs, including state protection and
advocacy organizations, ahead of the 180-day post-order custody review to find
placements in the community for people with mental disabilities not otherwise
referred to an immigration judge for classifications as “specially dangerous.”
Rescind regulations that authorize indefinite detention for non-citizens judged to be
to be “specially dangerous,” and replace with procedures for transferring such
individuals to appropriate, secure psychiatric facilities after a civil commitment
hearing at which the individual’s wishes are taken into account and he or she is
represented by appointed counsel. If a civil commitment hearing finds that a noncitizen does not require in-patient psychiatric care, he or she should be released to
appropriate community care.

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Acknowledgements
This report was researched and written by Sarah Mehta, Aryeh Neier fellow at Human Rights
Watch and the American Civil Liberties Union. This report was edited by Alison Parker, US
program director; Bill Frelick, refugee policy director; Meghan Rhoad, researcher in the
women’s rights division; Shantha Rau Barriga, disability rights researcher in the health and
human rights division; Joseph Amon, health and human rights director; Clive Baldwin, legal
and policy deputy director; Danielle Haas, program editor, and Joe Saunders, deputy
program director. Layout and production were coordinated by Grace Choi, publications
director, Fitzroy Hepkins, mail manager, and Kyle Knight, associate for the children’s rights
division.
Human Rights Watch would like to thank Jeannie Han, legal intern with the US program of
Human Rights Watch, for her research assistance. We are grateful to Megan Bremer, Judy
Rabinovitz, Jim Felakos, Jamil Dakwar, and Brittney Nystrom for providing expert review of
draft sections of this report. We would also like to thank ICE and EOIR for providing us with
the information we requested. Finally, we appreciate the assistance of the many
psychiatrists and mental health specialists who helped us to prepare our interview
methodology.
This report is indebted to the local advocacy organizations and their teams of pro bono
attorneys as well as the many immigration attorneys throughout the US who made our
research possible and who shared their invaluable expertise with Human Rights Watch. We
particularly appreciate the assistance and time of family members, social workers, court
officers, disability rights advocates and mental health practitioners who provided Human
Rights Watch with invaluable information, insights and expertise.
Most importantly, Human Rights Watch wishes to thank each of the individuals who shared
their experiences in immigration court and detention, and who spoke with courage and
dignity about their mental disabilities, personal histories, and concerns.

87

July 2010

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Jane Olson, Chair, Board of Directors

Appendix A
RE: FREEDOM OF INFORMATION ACT REQUEST
VIA EMAIL AND US POSTAL SERVICE
Ms. Catrina M. Pavlik-Keenan
Director, Freedom of Information Office
U.S. Immigration and Customs Enforcement
800 North Capitol St., NW
5th Floor, Suite 585
Washington, DC 20536-5009
ice-foia@dhs.gov

December 4, 2009

Dear Ms. Pavlik-Keenan:
This letter constitutes a request to U.S. Immigration and Customs Enforcement
(“ICE”) pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
submitted on behalf of Human Rights Watch (“HRW,” or “Requester”).
HRW seeks records concerning noncitizens with mental disabilities or mental
illness287 in immigration removal and asylum proceedings and who are or have been
held in detention facilities288 at any time from September 1, 2004 until the present.
To facilitate ICE’s search for records and the utility of the information provided, HRW
requests that if the information requested is available as electronic data, electronic
copies of the data be provided to HRW pursuant to 5 U.S.C § 552 (a)(3)(C). To the
extent that ICE has not compiled any of the requested information in electronic
databases, then HRW requests any other records containing the requested
information. Additionally, if the specific information requested below, or portions of
that information, is available in summary or report form, HRW requests access to
the summary or report records, rather than the individual records from which that
summary data was generated.

287

Noncitizens or respondents with “mental disabilities” or “mental illness” refer to any individuals who have been
diagnosed with, display symptoms of, are suspected of having a mental impairment.

288

“Detention facility” or “detention facilities” refer to all federal immigration detention facilities; facilities at Guantanamo
Bay, Cuba; and all state, county and local jails and prisons under contract with the federal government to house immigration
detainees at any point after September 30, 1998.

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Specifically, HRW requests the following records:
1. All records identifying in which detention facilities ICE detainees receive mental health treatment.
2. All records identifying where ICE detainees receive inpatient mental health treatment.
3. All records identifying where ICE detainees receive outpatient mental health treatment.
4. All records identifying the number and percentage of cases in which a competence evaluation has
been requested by the immigration court or by any of the parties [for a respondent] since 2004.
5. All records identifying the number and percentage of immigration detainees receiving mental
health treatment since September 1, 2004.
6. All records identifying the number and percentage of immigration detainees receiving mental
health treatment in in-patient medical facilities and the facilities in which they were housed during
treatment on September 1, 2004 and on September 1st of the previous five years.
7. All records identifying the number of detainees currently receiving ICE-provided mental health
treatment whose cases have been administratively closed.
8. All records identifying the number of individuals whose cases have been administratively closed
who have been released on the condition that they receive mental health treatment since 2004.
9. All records identifying the number of individuals who have been released from detention since
2004 on the condition that they receive mental health treatment.
10. All records identifying the number and percentage of detainees who have a past record of mental
illness, hospitalization, or treatment for mental illness at some point prior to detention by ICE since
2004.
11. All records identifying the number and percentage of cases where ICE has released a detainee on
grounds of mental disability at a post-final order custody review hearing since 2004.
12. All training guides or other records containing procedures, protocols, or guidelines used by
detention staff or contractors to identify individuals exhibiting symptoms of mental illness, distress or
disability in detention.
13. All records containing general policies and screening procedures for identifying individuals with
mental disabilities or a past record of mental illness.
Request for Public Interest Fee Waiver
FOIA allows for fee waivers if “disclosure of the requested information is in the public interest
because it is likely to contribute significantly to public understanding of the operations or activities of
the government and disclosure of the information is not primarily in the commercial interest of the
requester.” 28 C.F.R. § 16.11(k)(i)-(ii).
Pursuant to DOJ regulations, fee waivers are appropriate if four factors are satisfied: (1) the subject of
the requested records must concern identifiable operations or activities of the federal government; (2)
the disclosable portions of the requested records must be meaningfully informative about
government operations or activities in order to be “likely to contribute” to an increased public
understanding of those operations or activities; (3) the disclosure must contribute to a reasonably

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broad audience of persons interested in the subject - a requester’s expertise in the subject area and
ability and intention to effectively convey information to the public shall be considered; and (4) the
public’s understanding of the subject in question, as compared to the level of public understanding
existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. 28 CFR
§16.11 (k)(2)(i)-(iv).
HRW satisfies all of these factors:
1. Operations or Activities of Government
HRW’s request deals directly with the operations or activities of the federal government because it
relates to policies for the detection and recording of mental disability, as well as provision of mental
health treatment, among immigration detainees held in different detention facilities, jails, and
prisons run by or under contract to the Department of Homeland Security. In addition, according to
the ICE website, the agency is the result of “combining the law enforcement arms of the former
Immigration and Naturalization Service and the former U.S. Customs Service, to more effectively
enforce our immigration and customs laws… by targeting illegal immigrants: the people, money and
materials that support terrorism and other criminal activities.” One of the key methods of fulfilling
this stated mission is to “manage [aliens] while in custody.” This Request undoubtedly deals with the
operation of DHS and ICE as it expressly deals with the agency’s mission.
2. Contributing to the Public’s Understanding
This request concerns information that is of significant value to informing the public. The information
is not already in the public domain, so its disclosure will provide new and important information
about the enforcement of the nation’s immigration and detention laws. See 28 CFR §16.11 (k)(2)(ii).
The information requested will increase the public’s understanding of the federal government’s
operations, as noted above, because it will reveal individual and statistical information about the
rights and treatment of immigration detainees with mental disabilities, which, especially in light of
legislative changes to immigration law in 1996, the attacks of September 11, 2001, and recent public
debate over detention of aliens in U.S. facilities, is of particular interest to the public.
3. Reasonably Broad Audience of Persons Interested in Subject
This factor concerns an organization’s ability to disseminate information. HRW employs over 150
professionals, among them lawyers, journalists, and academics. These professionals work to uncover
and report on human rights issues around the world. In order to reach the broadest audience
possible, the organization publishes detailed reports on human rights issues of interest to a broad
spectrum of people. These reports are made available in print and on HRW’s website. HRW also uses
its extensive contacts in the media to draw greater attention to the issues, and HRW employees often
comment on issues in the media. On average, forty citations to HRW appeared in publications around
the world on each day from December 1, 2008 to December 1, 2009.289
289

In the past year Human Rights Watch has appeared in Agence France Presse 1,157 times; Reuters News 817 times; 604
Associated Press Newswires; All Africa 573 times; States News Service 559 times; Targeted New Service 539 times; The

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HRW intends to publish a report using the information provided in response to this request.
4. Enhancement of Level of Public Understanding
This factor generally deals with the availability of the information in the public domain, including how
readily available information of a similar nature is to the general public. As discussed above, no
comprehensive report of this nature currently exists in the public domain. Currently, there is little
public understanding of the procedural challenges facing noncitizens with mental disabilities in
immigration removal and asylum proceedings. Without information from the disclosure requested, it
is difficult, if not impossible, to have true public understanding of the experiences of noncitizens with
mental disabilities in navigating immigration legal proceedings. The report HRW plans to publish will
enhance the public understanding of the challenges facing immigration respondents with mental
disabilities because the breadth of analysis is not something currently available to the public.
This request meets all the statutory and regulatory requirements for a fee waiver. Consequently, we
request that you disclose the requested information without charge.
*

*

*

We thank you for your attention in this matter and look forward to your response within 20 business
days. 5 U.S.C. §552(a)(6)(A)(i). Please respond to Sarah Mehta, Aryeh Neier Fellow at US
Program/Human Rights Watch, 350 Fifth Ave, 34th Floor, New York, NY 10118-3299, telephone (212)
377-9437, email mehtas@hrw.org.
Signed:

Sarah L. Mehta
Aryeh Neier Fellow
Human Rights Watch/American Civil Liberties Union
350 Fifth Ave, 34th Floor
New York, NY 10118-3299
tel: 212-377-9437
mehtas@hrw.org

Guardian 315 times; 300 Reuters Daybook Reports; The Gulf Daily News 260; and The Canadian Press 255 times. Additionally,
Human Rights Watch has appeared in major US Papers such as The Wall Street Journal, The New York Times, USA Today, The
Los Angeles Times, The Daily News, The Washington Post, The Houston Chronicle, The Philadelphia Inquirer, The San
Francisco Chronicle, The Boston Globe, The Denver Post, The Arizona Republic, The Star Tribune, The Detroit Free Press, The
Dallas Morning News, and The Chicago Tribune. Internationally, Human Rights Watch has been cited by Der Spiegel (Germany),
The Daily Nation (Kenya), The Buenos Aires Herald (Argentina), Folha de São Paulo (Brazil), Emol (Chile), El Mundo (Mexico), El
Universal (Venezuela), Express India, The Times of India, The Guardian (Nigeria), eKantipur (Nepal), Al-Ahram (Egypt), The
Bangkok Post (Thailand), Haaretz (Israel), The Korea Times (South Korea), The Japan Times, The Sydney Morning Herald
(Australia), The Herald Sun (Australia), Al Jazeera (Qatar), as well as hundreds of other news sources in print and online around
the world.

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HUMAN RIGHTS WATCH
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
Tel:
212-290-4700
Fax:
212-736-1300

US PROGRAM
David C. Fathi, Director
Jamie Fellner, Senior Counsel
Abigail Marshak, Associate
Sarah Mehta, Aryeh Neier Fellow
Alison Parker, Deputy Director
Sarah Tofte, Researcher
ADVISORY COMMITTEE
Catherine Powell, Chair
Catherine Albisa
Roland Algrant
Preeta Bansal
Ann Beeson
Stephen Bright
Tanya Coke
David Cole
Mike Farrell
Vanita Gupta
Lulie Haddad
Wendy Patten
Bill Quigley
Bruce Rabb
Steven Shapiro
Alexandra Stanton
Julie Stewart
Dorothy Thomas
Robin Toone
Human Rights Watch
Kenneth Roth, Executive Director
Michele Alexander, Development & Outreach
Director
Carroll Bogert, Associate Director
Emma Daly, Communications Director
Barbara Guglielmo, Finance & Administration
Director
Peggy Hicks, Global Advocacy Director
Iain Levine, Program Director
Andrew Mawson, Deputy Program Director
Suzanne Nossel, Chief of Operations
Dinah PoKempner, General Counsel
James Ross, Legal & Policy Director
Joe Saunders, Deputy Program Director
Jane Olson, Chair, Board of Directors

Appendix B
RE: FREEDOM OF INFORMATION ACT REQUEST
Office of the General Counsel
Attn: FOIA Service Center
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041
December 4, 2009
To Whom It May Concern:
This letter constitutes a request to the Executive Office for Immigration Review
(“EOIR”) pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
submitted on behalf of Human Rights Watch (“HRW,” or “Requester”).
HRW seeks records concerning noncitizens with mental disabilities or mental
illness290 in immigration removal and asylum proceedings from September 1,
2004 until the present. To facilitate EOIR’s search for records and the utility of
the information provided, HRW requests that if the information requested is
available as electronic data, electronic copies of the data be provided to HRW
pursuant to 5 U.S.C § 552 (a)(3)(C). To the extent that EOIR has not compiled
any of the requested information in electronic databases, then HRW requests
any other records containing the requested information. Additionally, if the
specific information requested below, or portions of that information, is
available in summary or report form, HRW requests access to the summary or
report records, rather than the individual records from which that summary
data was generated.

290

Noncitizens or respondents with “mental disabilities” or “mental illness” refer to any individuals who have been
diagnosed with, display symptoms of, are suspected of having a mental impairment.

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Specifically, HRW requests the following records:
1.
2.
3.
4.
5.
6.
7.

8.

9.
10.
11.

12.

All records identifying the number of immigration judges that have been employed by EOIR
each year since 1996.
All records identifying the number of people who go through an immigration removal or an
asylum proceeding each year since 2004.
All records identifying in how many cases immigration judges have refused to accept
admissions from noncitizen respondents on the basis of mental incompetence since 2004.
All records identifying the number and/or percentage of cases in which a competency
evaluation has been ordered for a respondent by the court since 2004.
All records identifying the number and percentage of cases in which a competency evaluation
has been requested for a respondent any of the parties since 2004.
All records identifying the number of cases in which EOIR has conducted a competency
hearing since 2004.
All documents, guidelines, communications or protocols for immigration judges indicating
the procedures for handling a case where the respondent has or is suspected of having
mental disabilities.
All records identifying the number and/or percentage of cases that have been
administratively closed due to respondent’s mental illness or mental incompetence since
2004.
All records identifying the number and/or percentage of cases that have been
administratively closed for any reason since 2004.
all records identifying the number of individuals whose cases have been administratively
closed and who have subsequently been given a competency evaluation.
All records identifying the number of motions to reopen or reconsider that have been filed on
the basis of a litigant’s incompetence since 2004, and all records identifying how many of
those motions to reopen/reconsider have been granted.
All records identifying the number and percentage of removable noncitizens since 2004 with
criminal convictions (for immigration removal purposes) who were previously found
incompetent at some point in their criminal proceedings.

Request for Public Interest Fee Waiver
FOIA allows for fee waivers if “disclosure of the requested information is in the public interest
because it is likely to contribute significantly to public understanding of the operations or activities of
the government and disclosure of the information is not primarily in the commercial interest of the
requester.” 28 F.R. § 16.11(k)(i)-(ii).
Pursuant to DOJ regulations, fee waivers are appropriate if four factors are satisfied: (1) the subject of
the requested records must concern identifiable operations or activities of the federal government; (2)
the disclosable portions of the requested records must be meaningfully informative about
government operations or activities in order to be “likely to contribute” to an increased public
understanding of those operations or activities; (3) the disclosure must contribute to a reasonably
broad audience of persons interested in the subject - a requester’s expertise in the subject area and

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ability and intention to effectively convey information to the public shall be considered; and (4) the
public’s understanding of the subject in question, as compared to the level of public understanding
existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. 28 CFR
§16.11 (k)(2)(i)-(iv).
HRW satisfies all of these factors:
1. Operations or Activities of Government
HRW’s request deals directly with the operations or activities of the federal government because it
relates to procedural safeguards in place for noncitizens with mental disabilities in immigration
removal and asylum proceedings conducted by the EOIR. In addition, according to the EOIR website,
the agency “interprets and administers federal immigration laws by conducting immigration court
proceedings, appellate reviews, and administrative hearings.” One of the agency’s stated
responsibilities is a commitment to “providing fair, expeditious, and uniform application of the
nation's immigration laws in all cases.” This Request undoubtedly deals with the operation of EOIR as
it expressly deals with the agency’s mission.
2. Contributing to the Public’s Understanding
This request concerns information that is of significant value to informing the public. The information
is not already in the public domain, so its disclosure will provide new and important information
about the enforcement of the nation’s immigration and detention laws. See 28 CFR §16.11 (k)(2)(ii).
The information requested will increase the public’s understanding of the federal government’s
operations, as noted above, because it will reveal individual and statistical information about
procedural safeguards in immigration proceedings, which, especially in light of legislative changes to
immigration law in 1996, the attacks of September 11, 2001, and recent public debate over detention
of aliens in U.S. facilities, is of particular interest to the public.
3. Reasonably Broad Audience of Persons Interested in Subject
This factor concerns an organization’s ability to disseminate information. HRW employs over 150
professionals, among them lawyers, journalists, and academics. These professionals work to uncover
and report on human rights issues around the world. In order to reach the broadest audience
possible, the organization publishes detailed reports on human rights issues of interest to a broad
spectrum of people. These reports are made available in print and on HRW’s website. HRW also uses
its extensive contacts in the media to draw greater attention to the issues, and HRW employees often
comment on issues in the media. On average, forty citations to HRW appeared in publications around
the world on each day from December 1, 2008 to December 1, 2009.291

291

In the past year Human Rights Watch has appeared in Agence France Presse 1,157 times; Reuters News 817 times; 604
Associated Press Newswires; All Africa 573 times; States News Service 559 times; Targeted New Service 539 times; The
Guardian 315 times; 300 Reuters Daybook Reports; The Gulf Daily News 260; and The Canadian Press 255 times. Additionally,
Human Rights Watch has appeared in major US Papers such as The Wall Street Journal, The New York Times, USA Today, The
Los Angeles Times, The Daily News, The Washington Post, The Houston Chronicle, The Philadelphia Inquirer, The San
Francisco Chronicle, The Boston Globe, The Denver Post, The Arizona Republic, The Star Tribune, The Detroit Free Press, The

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HRW intends to publish a report using the information provided in response to this request.
4. Enhancement of Level of Public Understanding
This factor generally deals with the availability of the information in the public domain, including how
readily available information of a similar nature is to the general public. As discussed above, no
comprehensive report of this nature currently exists in the public domain. Currently, there is little
public understanding of the procedural challenges facing noncitizens with mental disabilities in
immigration removal and asylum proceedings. Without information from the disclosure requested, it
is difficult, if not impossible, to have true public understanding of the experiences of noncitizens with
mental disabilities in navigating immigration legal proceedings. The report HRW plans to publish will
enhance the public understanding of the challenges facing immigration respondents with mental
disabilities because the breadth of analysis is not something currently available to the public.
This request meets all the statutory and regulatory requirements for a fee waiver. Consequently, we
request that you disclose the requested information without charge.
*

*

*

We thank you for your attention in this matter and look forward to your response within 20 business
days. 5 U.S.C. §552(a)(6)(A)(i). Please respond to Sarah Mehta, Aryeh Neier Fellow at US
Program/Human Rights Watch, 350 Fifth Ave, 34th Floor, New York, NY 10118-3299, telephone (212)
377-9437, email mehtas@hrw.org.

Signed:

Sarah L. Mehta
Aryeh Neier Fellow
Human Rights Watch/American Civil Liberties Union
350 Fifth Ave, 34th Floor
New York, NY 10118-3299
tel: 212-377-9437
mehtas@hrw.org

Dallas Morning News, and The Chicago Tribune. Internationally, Human Rights Watch has been cited by Der Spiegel (Germany),
The Daily Nation (Kenya), The Buenos Aires Herald (Argentina), Folha de São Paulo (Brazil), Emol (Chile), El Mundo (Mexico), El
Universal (Venezuela), Express India, The Times of India, The Guardian (Nigeria), eKantipur (Nepal), Al-Ahram (Egypt), The
Bangkok Post (Thailand), Haaretz (Israel), The Korea Times (South Korea), The Japan Times, The Sydney Morning Herald
(Australia), The Herald Sun (Australia), Al Jazeera (Qatar), as well as hundreds of other news sources in print and online around
the world.

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Appendix C

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97

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AMERICAN CIVIL LIBERTIES UNION
125 Broad Street, 18th Floor
New York, NY 10004-2400

HUMAN RIGHTS WATCH
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299

www.aclu.org

www.hrw.org

Deportation by Default
Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System
Every year, several hundred thousand people in the United States are arrested for possible deportation by
Immigration and Customs Enforcement (ICE). The vast majority are held in immigration detention, both during
and even after their deportation hearings in immigration court. At least 15 percent of these immigration
detainees—an estimated 57,000 people in 2008—are thought to have a mental disability, some so severe that
they do not know their own names or do not understand that deportation means removal from the country.
Despite these large numbers, the immigration system lacks meaningful safeguards for people with mental
disabilities—including US citizens— throughout the arrest, detention, deportation hearing, and removal process.
Deportation by Default highlights these deficiencies, including no right to appointed counsel; inflexible detention
policies that can result in lengthy and arbitrary detention, sometimes for years; lack of substantive or operative
guidance for attorneys and judges when people with mental disabilities are unable to present claims to remain in
the US without support.
The current immigration system violates US and international human rights standards of fairness and protections
against arbitrary and indefinite detention, and puts people with mental disabilities—including US citizens— at
risk of erroneous deportation.

Personal belongings of undocumented
immigrants being loaded into an ICE plane
as part of the deportation process.
© 2008 Michael Schennum

H U M A N
R I G H T S
W A T C H