Photo by Sam Ruaat.
The U.S. legal system is premised on the idea that every party in a case is afforded his or her day in court and a meaningful opportunity to be heard. Yet, for individuals with mental disabilities facing deportation from the United States—including those whose removal will mean being permanently barred from ever returning—that day may never arrive.
Each year, immigration judges issue removal orders against individuals with varying degrees of mental disabilities, including individuals who are not even competent to understand the charges against them. Yet the current immigration court procedures do little to ensure that these individuals are afforded a fair hearing. Immigration judges are uncertain as to how to handle individuals with mental disabilities. Not only is there no process in place to determine whether a person is competent, but those who are unable to retain their own lawyers are forced to proceed without any representation to safeguard his or her interests. To make matters worse, many of these individuals are jailed in detention facilities, often in remote locations, which limits access to legal assistance and often causes their mental condition to deteriorate.
Today, the New York Times reported about the case of one such person, a 36 year old Chinese woman suffering from mental illness who was locked in an immigration jail for a year and a half, despite having no criminal record. Without a lawyer, she was not able to speak for herself in immigration court. Her medical condition worsened in jail. An immigration judge ordered her deported, even though she has a claim to asylum. Unlike so many others in her situation, she was ultimately reunited with family members, who hired a lawyer and was able to get her case reopened.
Individuals with mental disabilities, just like others in removal proceedings, may face persecution in their home countries and therefore have legitimate asylum claims. Some may be long term lawful permanent residents who are eligible to apply to remain in United States and may have a legal channel to stop their deportation, or they may even be a United States citizen wrongly charged. Given the complex legal and factual issues often involved in immigration cases, without procedural safeguards, individuals with mental disabilities may be unable to present these defenses and claims.
The lack of adequate safeguards not only deprives individuals of a fair hearing, it also results in significant costs to the taxpayer. As the New York Times article demonstrates, individuals with mental disabilities can languish in detention for months or years. In some cases, because immigration judges are unsure how to proceed without legal representation or a guardian, they delay making a decision in the case. Sometimes, a person’s mental illness makes it difficult for him or her to obtain the travel documentation needed to facilitate the deportation, thus prolonging his or her time in jail. As a result, this increases healthcare and litigation costs.
For years, the problems surrounding this issue have largely been ignored or addressed only on an ad hoc basis. This summer, however, numerous immigrant and disability rights advocates sent a letter to Attorney General Eric Holder asking him to adopt new immigration practices for individuals with mental disabilities who are in removal proceedings. Specifically, the letter recommends (1) appointment of counsel to all persons with mental disabilities; (2) appointment of guardians ad litem to persons in removal proceedings who are mentally incompetent; (3) adoption of regulations to ensure adequate protections for individuals with mental disabilities; and (4) training for immigration judges on how to handle cases involving individuals with mental disabilities.
These recommendations could go a long way in ensuring that every individual—including individuals with mental disabilities—is afforded his or her day in court. People with mental disabilities are not the only victims of the refusal to afford these basic rights in immigration proceedings, but they certainly offer a stunning example of what can happen when our laws stray from the fundamental principles on which our judicial system was founded.