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Human Rights Watch Report Faults ICE for Improper Treatment of Mentally Disabled Aliens

By Derek Gilna

A 2010 study by Human Rights Watch highlights abuses suffered by mentally disabled aliens, both legal and illegal. According to Human Rights Watch, "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... 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... they do not know their own names or do not understand that deportation means removal from the country."

The report states that "The US immigration court system is complicated and adversarial at the best of times... [but] 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."

The report drew its information upon which it based its conclusions from 104 interviews "with non-citizens with mental disabilities, their family members, social workers, psychiatrists, immigration attorneys, judges and rights advocates..." The study concluded that the "human rights of affected individuals" are violated, "offending both American and international standards of justice."

Immigration attorney Megan Bremer noted that "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]."

Human Rights Watch also has documented that even US citizens, including those with mental disabilities, have ended up in ICE custody, and that unknown numbers of legal permanent residents and asylum seekers lawfully in the country have been unfairly deported from the country because their mental disabilities made it impossible for them to defend themselves in deportation proceedings. In one such proceeding, in May of 2007, Pedro Guzman, a 29-year old US citizen with developmental disabilities, was "apprehended at a county jail in California where he was serving a sentence for trespassing. He was deported to Mexico, where he was lost for three months before he was located and returned to his family in California."

The very structure of immigration law forces non-citizens to defend themselves against deportation in difficult circumstances because of the cost of hiring an attorney and the difficulty in finding pro-bono help in remote detention centers. This problem is magnified for those detainees with mental illness.

Human Rights Watch's position on the plight of the mentally-ill immigration defendant is straightforward: "Criminal courts recognize that it is fundamentally unfair to prosecute a person who can’t understand the case against him. As a result, a defendant in criminal court with a mental disability who cannot understand the charges... often cannot be subject to punishment... immigration courts have no substantive or operative guidance for how they should achieve fair hearings tor people with mental disabilities, aside from a general statement in the statutes that the U.S. attorney general must provide 'safeguards' for individuals who cannot participate in proceedings by reason of their 'mental incompetency." However, as Human Rights Watch notes, there is no fixed standard of competency for judges to follow: “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.” It is settled law in the United States that even defendants in traffic cases are required to show that they understand the charges against them, and in criminal matters, are entitled to free legal representation, with some limitations.

Many defendants with mental disabilities stated that they feared a "negative impact on the merits of their cases it they told judges or attorneys about their disabilities."

As a result of their interviews, review of documents obtained with FOIA requests, and other sources, Human Rights Watch has come up with several recommendations for correcting the problem: All non-citizens with mental disabilities should be appointed counsel in immigration proceedings; exempt all non-citizens with mental disabilities from mandatory detention; develop regulations "that protect the rights of non-citizens with mental disabilities in immigration court proceedings, including directing immigration judges in appropriate case to appoint counsel and terminate proceedings..."; train judges, ICE attorneys, interpreters and all other court personnel to recognize and interact with people with mental disabilities to achieve a fair and effective adjudication of their rights.

The 98-page report, “Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System,” can be found on the Human Rights Watch website,

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