Lately, I’ve been immersing myself in the complex and convoluted world of immigration law. I’ve spoken to law professors and immigration lawyers about this because there were many aspects that didn’t seem to make sense to me, and I figured I just didn’t understand it. After talking with the professionals, I realized I understood it just fine. The laws just didn’t make sense. The adjective that I frequently heard in reference to immigration law was "the Wild West" – an area so new and unsettled that nobody really knew how the process was supposed to work, particularly as applied to mentally ill immigrants facing deportation.
The fun aspect to learning a new area of law is that you get to see fundamental issues challenged and established for the first time, kind of like watching a man land on the moon or the launch of the first space shuttle. The disturbing aspect of it is that real people and real human lives are being disrupted and abused in the process.
Which leads me to the story of José Franco-Gonzales.
José Franco-Gonzales was petitioned for deportation (also known as "removal") after spending a year in the California correctional system. Upon release, he was taken into custody by Immigrations and Customs Enforcement (ICE) and transferred to an immigration detention center, a civil facility housing people facing deportation who haven’t yet had a deportation hearing. (See a video about José here.)
Franco-Gonzales was moderately cognitively impaired and did not have sufficient English skills to defend himself in court. When a psychiatrist opined that he was incompetent to participate in a deportation hearing, the immigration judge administratively closed the case, leaving the man in a legal limbo. He was forgotten – legally and literally – and held in an ICE facility for 4 years, in spite of the fact that he had already served time for his crime and had no new criminal charges pending. Eventually, an American Civil Liberties Union lawyer happened to stumble over his case and filed a habeas corpus petition on his behalf.
He was released in 2010, and his case was combined with others to form a class action suit against the Department of Homeland Security on behalf of all mentally ill, unrepresented detainees in Washington, California, and Oregon. The suit was brought by the ACLU and several other legal advocacy organizations. The suit sought to require qualified legal representation for the incompetent detainees and to allow them to have a bond hearing after 6 months of detention. This past April, the California district court agreed that this was necessary and ordered the government to put these protections in place.
This order hasn’t been challenged or appealed by the government, which is now scrambling to allocate funds and resources to provide low-cost or pro bono counsel and to locate psychiatrists willing to do competency assessments. While this order applies only to the states involved in the case, it is likely that this will soon become the law of the land once other cases are brought elsewhere. In 2011, there were 429,000 immigration detainees in 250 ICE facilities across the country and 15% of them had a mental disability. More than half of those had no legal representation.
I know that few psychiatrists reading this article will have any interest in the law generally or immigration law in particular. I think it is important for psychiatrists to know about this situation, because it’s pretty likely that at any point in time any doctor reading this article could have an undocumented immigrant on his inpatient unit. In that case, an inpatient service could be served with something called an immigration detainer, in other words, a notice from ICE that the patient is being petitioned for removal. The detainer is a request to hold the patient until he or she can be taken into custody by ICE.
Inpatient psychiatrists should be aware that this detainer is not binding. It is a merely an unenforceable request, not a court order, and it doesn’t bar a patient discharge. If the patient is seriously mentally ill, discharging the patient into the custody of ICE could mean that you are sending the patient out of state to an immigration detention center far away from his family, without a lawyer or right to a hearing, indefinitely. You don’t need to care about immigration law to know that would be a bad thing.
If a mentally ill inpatient is taken into custody, the patient’s family can be advised that the Executive Office for Immigration Review maintains a state-by-state list of pro bono legal service providers.