Immigration Court Fails the Most Vulnerable Detainees

Of the nearly 400,000 immigrants that are projected to be detained this year, about 15% of them are mentally ill or disabled.  As these detainees await immigration court, they are usually housed in detention centers operated by Immigration and Customs Enforcement (ICE) or private prison companies.  These facilities often lack the ability to effectively screen impaired or disabled detainees from the general population, and as a result, these detainees are not properly diagnosed or treated.  Initial screenings to these facilities are conducted in English and, in accordance with ICE procedure, are very brief.  Without an initial diagnosis leading to treatment, disabled detainees often deteriorate further while in custody.  A study by the Florida Immigrant Advocacy Coalition reported that the ratio of mentally ill inmates to staff was 1:400 in the federal bureau of prisons and 1:1142 in immigrant detention facilities.  Given these considerations and the fact that there is no national database for individuals in ICE detention, many mentally ill or disabled immigrants slip through the cracks and consequently are exponentially more likely to have a negative court outcome.

The failings of ICE procedure become even more glaring when these disabled detainees end up in court.  Detainees are not given an attorney at government expense and procedure allows them to be represented by a guardian, relative, or friend even if that person is not an attorney.  This leaves many detainees representing themselves; the problem with an impaired individual representing himself in court is readily apparent.  Under the Immigration and Nationality Act, detainees are allowed to present evidence and arguments on their own behalf. But disabled detainees are rarely able to do so.

This troubled policy is thankfully starting to evolve.  In May, the Department of Justice’s Immigration Review Board created a framework for hearing cases involving respondents with mental competency issues.  In Matter of M-A-M the Board stated that where a detainee demonstrates “indicia of incompetency,” the judge must take procedural steps to insure a safe proceeding.

While this is one step towards making the court system more equitable for all immigrant detainees, it does not cure the flaws of ICE procedure including failures of initial screenings at detention centers and the potential for judges to simply be inexperienced in detecting individuals with disabilities.  More comprehensive immigration policy steps would provide counsel to all detainees presented in court, create a separate process specifically for detainees with mental disabilities, and allow for non-incarceration monitoring of detainees who do not pose a flight risk.  Given recent reports of deportation of mentally disabled US citizens and state governments ratcheting up immigration enforcement, reform is necessary and urgent.