New Immigration Law Doesn't Take Into Account This One Demographic

Carlos, whose name has been changed for privacy reasons, has struggled with schizophrenia for several years. He cannot remember the exact year that he was diagnosed. Click here to listen to Elizabeth Basora, Carlos's daughter-in-law, talk about the difficulties of finding an attorney to take on Carlos's case.

When 62-year-old Carlos was diagnosed with schizophrenia a few years ago, he lost his grip on reality. He started having trouble remembering conversations and following directions. He heard voices of dead people. A few months after he was laid off his job, he tried to kill himself.

“Sometimes I feel better, some days I feel worse, so it depends on the day,” said Carlos, who now lives by himself in Milwaukee and receives Medicare and Medicaid from the government.

Carlos is one of many immigrants with mental illnesses in the nation who end up in removal proceedings without access to a lawyer, making them more vulnerable to deportation, said Claudia Valenzuela, attorney at Heartland Alliance, a national immigrant-rights group. More than 3,700 immigrants have been deported from Chicago this fiscal year, according to TRAC Immigration, a government watchdog group based at Syracuse University. Immigrants with mental illnesses make up a significant portion of those removals, advocates believe.

Deportation is particularly life-threatening to mentally ill immigrants, many of whom have spent most of their lives in the U.S., as they have very few support networks in their home countries. Many are vulnerable to various abuses by police, organized criminals, and mental health institutions, Valenzuela said. Abuses can range from being forcibly institutionalized in mental health facilities and denied medical treatment to being subject to forced labor and falsely accused of crimes, she said.

“They know no other life than here,” she said.

Immigrants with mental disorders suffer from a variety of illnesses that compromise their competency levels, ranging from schizophrenia and learning disabilities to post traumatic stress disorder, often caused by their harrowing experiences in their home countries. Many often have a difficult time understanding what is happening during the removal process, which can be complex even for native English speakers, according to Hena Mansori, detention project supervising attorney at the National Immigrant Justice Center, a legal advocacy group for immigrant rights.

Carlos, who obtained citizenship after marrying a U.S. citizen in 1992, was held at the Kenosha County Detention Center from December 2012 to March 2013. Legal residents can become eligible for deportation if they have certain types of criminal convictions, including drug possession.

The Dominican Republic native said that he lived every day in fear of deportation during his four-month detainment, knowing that he would not be able to obtain the proper medication back in his home country.

But before an attorney volunteered to take his case, being in prison stressed Carlos out to the point that he asked the judge to deport him.

“All I wanted was to be out,” he said.

What constitutes "competency"?

In several cases, judges have found an immigrant incompetent and continued with removal proceedings even without the individual present in court, according to Lisa Palumbo, supervisory attorney of the Immigration Project at the Legal Assistance Foundation, a nonprofit group that provides free legal services to low-income individuals.

But there may be problems with the judge’s definition and analysis of the “competency” of an immigrant, Palumbo said.

There is currently no standardized system by which individuals can be screened for incompetency. Though the Department of Homeland Security conducts competency evaluations for immigrants as they enter detention, the tests often fail to adequately assess the immigrant’s ability to understand the court proceedings, Valenzuela said.

Evaluations are comprised of basic “yes-or-no” checklists that are based on the answers from the mentally ill immigrants themselves. Many do not recognize that they have an impairment and say that they are not ill, Mansori said, “and DHS takes them at their word.”

Since 2011, student clinicians at The Family Institute at Northwestern University have worked with the National Immigrant Justice Center to conduct more in-depth independent evaluations with mentally ill immigrants.

Although half of the clients initially appear to be competent, they begin to reveal their paranoid delusions after the clinicians spend more time talking to them and gaining their trust, said Connie Sheehan, founder of the Mental Health Human Rights Clinic, a group of pro bono clinicians at The Family Institute.

“It’s only with a more in-depth interview that we begin to see people’s reasoning and executive functioning,” she said.

The independent evaluations help lawyers represent their clients’ mental illnesses more effectively to the judges, especially as many of the immigrants lack prior medical records or financial resources to access such services, Mansori said.

During his removal proceedings, Carlos was detained for about four months at the Kenosha County Detention Center. He said he would not wish the experience on his worst enemy. 

Physically and mentally detained

Immigrants with mental disorders often come into immigration custody through the criminal justice system for minor crimes such as trespassing and shoplifting convictions. Some, who lack the support of family and access to social services, become homeless and end up on private property unintentionally. Many immigrants also have drug addictions, as they resort to self-medication due to their lack of access to adequate mental health services.

“They’re so marginalized and in abject poverty that they don’t feel part of the structure that tells them that it’s not something to do,” Sheehan said.

Though Carlos claims that somebody else had put the drug in his car without his knowledge, he was convicted of possession of marijuana in 2012.

Carlos lived with 80 other people within a large room within the detention center. Punishment came at random intervals. Sometimes, guards would come to the detainees and destroy their beds for no reason, while other detainees were sent to a solitary dark room, he recalled. At one point, Carlos could not fall asleep at the end of the day.

“I was losing my mind and I was very worried that I was going to lose it all,” he said.

The Chicago district under U.S. Immigration and Customs Enforcement currently has six county jails, where detained immigrants often face the same punitive treatment as criminals, Mansori said. Access to legal services is severely limited for immigrants, who are often held at jails in remote areas.

“We do our best to do presentations to detained individuals and let them call into us, but we are not able to reach everybody,” Mansori said.

The quality of mental health care treatment for immigrants varies greatly between facilities, according to advocates. Immigrants with mental illnesses often lack access to qualified psychologists and are forced to go without the proper dosage or type of medication, which often exacerbates their condition. Some immigrants are placed in punitive 23-hour segregation facilities that limit recreational and phone access, Valenzuela said.

“It’s a vicious cycle of events — if you’re mentally ill and you don’t receive medication and you’re detained, you will probably tend to act out in some way,” Valenzuela said.

Carlos said April 23, the day he was released after serving nearly four months in detention, was the best of his life.

“I wanted to grow little wings and fly away from that place,” he said.

Challenges to legal remedies

Unlike defendants in criminal courts, immigrants are not guaranteed the right to a lawyer in court and often must represent themselves before judges. About 84% of all detained immigrants lack legal counsel in court, according to the American Civil Liberties Union.

Mentally impaired immigrants may soon find some legal reprieve under the Franco-Gonzales v. Holder decision from April 24. In the landmark ruling, a federal judge ordered immigration courts in California, Arizona, and Washington to provide legal representation for immigrants with mental disabilities in detention and facing deportation.

But even with legal representation, immigrants with mental illnesses struggle to assist their own lawyers in court. Some clients are simply unable to present a coherent narration about their experience, which is crucial for the judges’ evaluation of their credibility, according to Geoffrey Heeren, attorney at American Immigration Lawyers Association, a group of lawyers that addresses immigration law and reform.

“They may not be competent enough to make decisions between whether to receive the defense or accept voluntary departure,” he said.

In May 2011, the Board of Immigration Appeals set a procedural framework for immigration judges to follow when addressing cases with immigrants with mental illnesses. Under the decision, judges must designate “appropriate safeguards” for the immigrant deemed incompetent.

But this guideline is also flawed, advocates said. Judges are not explicitly required to designate attorneys as safeguards, and can appoint family members or friends to come to court and represent the immigrants, which may weaken their case, Mansori said.

“It’s much better for someone to have an actual attorney with experience in immigration law because of the complexity in immigration law,” she said.

Getting back to normal

Carlos looks over at his 3-year-old grandson, Jonathan, at a family gathering.

Sheehan said that while mental-health treatment for immigrants still remains scarce, she hopes for more foundational support for such services in the future. Mentally ill immigrants need an outlet to rid themselves of their shame, she said.

“That then would allow the capability of being a really productive member of society, so I think that click needs to happen,” she said.

Sleep still proves elusive for Carlos as he struggles with the traumatic remnants of his experience in the detention center. And while his family makes sure that he is medicated all the time, sometimes Carlos is just “not with it,” said Elizabeth Basora, his daughter-in-law.

“You can tell that he’s just in his own little world,” she said.

While Carlos is still thankful that he is here in the U.S., he hopes for a change in the law to help other mentally ill immigrants who need an attorney. But for now, being out of jail and spending time with his family gives him a renewed sense of hope.

“I’m glad that I’m free and that I have my grandsons, my son, my daughter-in-law — that makes me happy,” he said.