Report: Unfair Hearings For Disabled Immigrants

 NEW YORK – People with mental disabilities, including U.S. citizens, face a greater risk of erroneous deportation by United States Immigration and Customs Enforcement (ICE) because courts do not ensure fair hearings for those not able to represent themselves, Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU) said in a joint report. The groups urged Congress to pass legislation requiring the appointment of lawyers for all people with mental disabilities in immigration courts.

The 98-page report, "Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System," says that immigrants with mental disabilities are often unjustifiably detained for years on end, sometimes with no legal limits. The report documents case after case in which people with mental disabilities were prevented from making claims against deportation – including claims of U.S. citizenship – because they were unable to represent themselves. Some of the people interviewed for the report did not know their own names, were delusional, could not tell time, or did not know that deportation meant removal from the United States.

"Few areas of US law are as complicated as deportation, and yet every day people with mental disabilities must go to court without lawyers or any safeguards that make the hearings fair," said Sarah Mehta, Aryeh Neier fellow at HRW and the ACLU. "Some have disabilities so severe that they don't know their own names or what a judge is."

At least 57,000 detained immigrants facing deportation in 2008 – 15 percent of the total – had mental disabilities. Under current immigration law and practice, immigration detainees have no right to court-appointed lawyers or to other safeguards, such as evaluations of their ability to receive a fair hearing, when they go through deportation hearings, HRW and the ACLU said. While some individuals receive pro bono representation from legal services organizations or are able to pay a lawyer with family assistance, the vast majority will never be able to afford or find a lawyer, thus risking prolonged and possibly indefinite detention.

For example, one legal permanent resident who has been in the U.S. for 40 years, and was not able to remember his date of birth or why he was on medication, is facing deportation to Mexico. Interviewed in detention in Texas, he told the author of the report that he wanted the help of a lawyer.

"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," he said.

Asked about his mental disabilities, he referred to having been shot in the head multiple times and said the bullets were still there: "I think I must have died because I remember I saw children with wings."

The HRW/ACLU report documents the cases of 58 individuals with mental disabilities facing deportation and held in detention in Arizona, Texas, California, Florida, Illinois, Wisconsin, South Carolina, Pennsylvania and Virginia. Most are legal permanent residents in the U.S. facing deportation for nonviolent criminal offenses, such as trespassing or drug possession. Many were receiving mental health treatment in the community prior to their arrest by ICE. The report reveals how immigrants and even U.S. citizens with mental disabilities are particularly vulnerable to sweeping immigration arrests.

The report also shows that people with mental disabilities not only face arrest and deportation without safeguards, but are also routinely detained by ICE during the course of their hearings. Detention often becomes unduly prolonged when immigrants with mental disabilities are unable to speak on their own behalf, leading even court officials to recognize that the hearings cannot or should not proceed. In some cases, people have been detained for as long as 10 years without resolution of their cases.

"No one knows what to do with detainees with mental disabilities, so every part of the immigration system has abdicated responsibility," Mehta said. "The result is people languishing in detention for years while their legal files – and their lives – are transferred around or put on indefinite hold."

HRW and the ACLU noted that July 26, 2010, is the 20th anniversary of the Americans with Disabilities Act, and one year since President Barack Obama signed the Convention on the Rights of Persons with Disabilities. The U.S. Department of Justice and the Executive Office of Immigration Review should honor the spirit of those commitments to develop procedures to ensure that individuals with mental disabilities are identified and provided with assistance during their hearings, HRW and the ACLU said. ICE should also review existing policies so that the detention of immigrants with mental disabilities is not arbitrary or indefinite.

The HRW/ACLU report, "Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System," is available online at: www.aclu.org/human-rights/deportation-default-mental-disability-unfair-hearings-and-indefinite-detention-us-immig