Last year, I covered the Deportation by Default report issued by Human Rights Watch and the American Civil Liberties Union. The report highlighted significant problems in the US immigration system with regards to mentally ill, developmentally disabled, and intellectually disabled detainees. The study found that up to 15% of immigration detainees had disabilities that impaired their understanding of the proceedings against them, yet were often in a position where they were forced to represent themselves in immigration court.
Because immigration is treated as a civil matter, detainees do not have a right to court-appointed attorneys. They can pursue counsel for assistance in court, but the court doesn’t need to provide it, or any other assistance. They also, of course, need to pay for that counsel if they want to secure attorneys to assist them with immigration proceedings, and a good immigration lawyer can be quite expensive. For disabled detainees who don’t even fully understand why they were in detention or what is happening to them, this creates an extremely unjust situation. Some judges aren’t sure what to do with detainees who are clearly legally incompetent to represent themselves, and as a result, disabled detainees can be mired in the system for years.
In cases that do proceed to court, deportation orders may be issued in a case that is really just a mockery of ‘justice.’ People are deported because they don’t understand what is happening and can’t defend themselves, even when they are in the United States legally, and in some cases are US citizens. They are deported even if it means returning to a situation where they may be subjected to torture, torment, and abuse, all because they have no legal representation to help them navigate a system that is deeply, deeply confusing.
Their problems are compounded by lack of access to treatment in immigration detention facilities; untreated mental illness and other disabilities are a significant problem in immigration detention as well as in the prison system at large. For those who might have been getting treatment before they were detained, lack of followup combined with stressful, overcrowded, emotionally intense situations certainly doesn’t help. As they rot away in immigration detention for years, their ability to navigate the system declines, and there is no system for providing meaningful assistance.
Instead, human rights organisations attempt to identify individual cases and intervene, providing a stopgap measure to save a few. Better to save few than none, but these organisations also argue that the system is clearly in need of critical reform. They’ve been pushing for changes to the way detainees with disabilities are handled, to make sure that everyone who needs it has access to legal representation. And to prevent immigration trials that are really just a sham, a pathetic shadow of justice that the United States should be ashamed of.
So it’s important and heartening news that a federal court just granted class action status to immigration detainees with disabilities that impair their understanding of immigration proceedings. The November ruling was initially released under seal, and has critical implications for addressing this particular injustice in the very, very dysfunctional immigration system in the US. From the ACLU’s story on the subject:
Ahilan Arulanantham, deputy legal director for the ACLU of Southern California, said: ‘The sad fact is that the government refuses to systematically track the many detainees with mental disabilities who are lost in immigration detention centers, unable to represent themselves or even to understand why they’re there. Today’s ruling will allow us to shed light on this most vulnerable population within our broken immigration detention system.’
Advocates are arguing that the government should appoint attorneys for people who are clearly incapable of representing themselves, and this is the first of what will be many steps to get justice for disabled detainees. Getting full representation is likely to be an uphill battle with a number of false starts, and it is by no means smooth sailing from here.
The fact that indefinite detention for all immigration detainees is still standard policy is appalling, given that the system is so backed up that it may take weeks, months, or years to access a hearing. For detainees who can’t understand immigration proceedings, this indefinite detention becomes even more of a trap, because they cannot advocate for themselves in court, and judges are often torn about what to do in their situations. Ethically, people who are legally incompetent shouldn’t be forced to represent themselves, especially in a case that may have life or death implications. Legally, immigration judges are under immense pressure to clear cases quickly.
Comprehensive immigration reform is clearly a vital necessity in the United States, and one that is long overdue. Small victories like this are an important step in the right direction, both because they move us closer towards justice, and because they raise public awareness of issues that have been swept under the carpet. Many people are not aware of the extent of the problems facing detainees with disabilities, particularly things like severe untreated mental illness and cognitive disabilities that make it difficult or impossible to navigate proceedings.
These problems do not begin, or end, with not being able to represent themselves in immigration courts. Disabled detainees are more likely to be subject to physical and sexual assault, for example; sexual abuse is a particularly big problem in immigration detention. They are also highly likely to experience medical complications as a result of untreated or poorly treated illnesses. Just as in the prison system, access to medical care and prescribed treatments can be used as a tool for power and control by guards and other detainees, and mental health services in particular are extremely limited in the immigration detention system. What we do to all immigrants caught up in our legal system is inhumane and abusive, and disabled detainees are no exception.
This country prides itself as a bastion of liberty, but it entombs people in its legal system when it is unclear whether they have even committed crimes, condemning them to years of navigating labyrinthine systems they do not understand while fighting to survive. This, bluntly, is wrong, and it’s heartening to see action from a growing number of human rights and social justice organisations to change the system.