By Elizabeth Wong, Associate Director
Ask anyone who deals with immigration issues, and they’ll tell you it’s complicated—really complicated. And that’s on a good day for English-speaking individuals with full mental capacity. Imagine, then, how tough it is for immigrants with mental disabilities.
In an eye-opening report released earlier this week, the ACLU and Human Rights Watch brought to light the fact that many immigrants with mental disabilities, unrepresented and unable to represent themselves, are unjustifiably detained and deported by Immigration and Customs Enforcement (ICE).
The report, “Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the U.S. Immigration System,” documents the cases of 58 individuals with mental disabilities facing deportation and detained in several states, including Virginia. Most of these cases involve legal permanent residents facing deportation for nonviolent criminal offenses, and many were receiving mental health treatment before they were arrested by ICE.
Separate Human Rights Watch research says that U.S. citizens with mental disabilities have also been caught up in immigration raids and ended up in ICE custody. Without the ability to defend themselves in court, some of these citizens have been deported to countries they do not know. If it weren’t for the families of these people advocating on their behalf, they may never have returned to the U.S.
So, how does this happen exactly? Each year, hundreds of thousands of people are arrested by ICE and scheduled for hearings in immigration court to determine if they can stay in the U.S. or must be deported. It is estimated that 15% of these people have mental disabilities. While some can afford and manage to find immigration attorneys to assist them, the majority cannot.
In criminal court, defendants are guaranteed an attorney to assist with their case. Also, there is a standard to ensure that they are mentally capable to understand the charges brought against them and to assist with their defense. However, neither of these protections exists in immigration court.
“Deportation by Default” documents cases in which detainees did not understand the questions asked by the judge, experienced hallucinations, or did not grasp the concept of deportation. One, for example, asked to be deported to New York. It hardly seems just to deport these detainees when they can’t even understand what they’re being asked.
Aside from wrongful deportation, prolonged and indefinite detention based on mental disability is also a problem. Some judges have closed a case in order to evaluate the mental competence of the detainee, but when the case is closed the person remains indefinitely detained until the case is rescheduled, which may take many months. In other circumstances in which the detainee’s country of origin cannot be determined or a country will not accept the person being deported, the detainee is simply left in a legal limbo.
Neither an unjust hearing nor a prolonged detention is what I would call fair. While not all non-citizens with mental disabilities may be entitled to stay in the U.S., in the interest of fairness and due process, they should at least all have the ability to adequately defend themselves against detention and deportation.
It is often said that a society should be judged by how it treats its most vulnerable members. “Deportation by Default” judges the U.S harshly on this count, as it should Reports like this are sometimes ignored, but sometimes they get our attention and help bring about needed change. Let’s hope it’s the latter in this case.

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