Immigrants with mental disabilities, including naturalized U.S. citizens, face a greater risk of erroneous deportation by United States Immigration and Customs Enforcement (ICE) because courts do not ensure fair hearings for those not able to represent themselves, according to a report by Human Rights Watch and the American Civil Liberties Union.

Immigration-related detainees typically have no right to court-appointed lawyers or to other safeguards such as evaluations of their ability to receive a fair hearing when they go through deportation proceedings, according to the report, "Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the U.S. Immigration System."

The 98-page report, based on interviews with detainees, documents extraordinary abuses and abridgements of due process that would not be tolerated in routine U.S. court proceedings. In many cases people with mental disabilities were prevented from making claims challenging deportation—including claims of U.S. citizenship—because they were unable to represent themselves. Some of the people interviewed for the report did not know their own names, were delusional, could not tell time, or did not know that deportation meant removal from the United States.

At least some of those cases investigated by Human Rights Watch are people who are legal permanent residents in the United States facing deportation for nonviolent criminal offenses, such as trespassing or drug possession, and many were receiving mental health treatment in the community prior to their arrest by ICE, according to the report.

In response to the report, ICE spokesperson Gillian Brigham issued the following statement: "Many of the recommendations in the report are well placed. The fact of the matter is that ICE has been engaged in detention reform since August 2009, in an effort to increase oversight and transparency within the system, improve conditions of confinement, and ensure quality medical and mental health care for the individuals in our custody. ICE continues to collaborate with members of the NGO community, including the ACLU and Human Rights Watch, on this very important issue."

Psychiatrists who reviewed the report said that while its findings are extraordinary, they are not surprising. "It is a reasonable description of the process," said Howard Zonana, M.D., director of the Law and Psychiatry Division at Yale University. "People don't have a lot of rights in this system."

The Yale program offers consultation to the Yale Law School's Immigration Clinic, where law students take cases under supervision of faculty to represent those seeking asylum.

"We offer psychiatric evaluations and psychological testing at very low cost to this clinic and we provide pro bono consultation to the attorneys and the students representing their clients," Zonana said. "We have seen cases similar to those described in the report. There is typically no right to have an attorney or hearing for competency to stand trial. We have seen only one competency request in 15 years."

"Startling" is how Andres Pumariega, M.D., immediate past chair of APA's Committee of Hispanic Psychiatrists, described the findings.

"Even for someone like me who is well aware of the current climate around immigration and the xenophobic attitudes it stirs up, the findings of this report on the procedural end are striking," he told Psychiatric News. "Most startling to me is that it clearly documents a complete lack of due process and safeguards around competency to stand trial and lack of consideration of NGRI [not guilty by reason of insanity] as a mitigating factor. The lack of due process and routine legal safeguards in deportation proceedings is incredible.

"Clearly this is discrimination on the basis of national origin and in most cases did not involve undocumented Americans but documented immigrants who are being deported because of behavior they engaged in related to their mental illness," Pumariega said. "In today's economic climate, this unfortunate process may also provide an outlet for local and state authorities to pursue deportation of severely mentally ill offenders as an alternative to providing community-based or forensically based services."

(Pumariega was the primary author of a 2009 APA position statement from the Committee of Hispanic Psychiatrists on xenophobia. The statement asserts that "APA advocates for the rights of immigrants, refugees, and asylum seekers to be respected, including rights to safe haven, security, and nurturance of one's own ethnic and cultural beliefs/values, and identity as essential for psychological health.")

The Human Rights Watch report is based on 104 interviews, including interviews with 40 noncitizens with mental disabilities. The remaining interviews were with family members, social workers, and psychiatrists; immigration attorneys and immigrant rights advocates; and three immigration judges. The report also includes case information about 18 noncitizens whom Human Rights Watch was unable to interview, but whose stories and redacted case files were provided by their attorneys and with family permission. Those involved included people with severe mental illnesses, developmental disabilities, and intellectual challenges.

Among the recommendations for ICE in the report were the following:

Pumariega described the recommendations as "necessary but not sufficient." He was emphatic that there needs to be systematic screening for mental illness upon entering an ICE detention center and identification of whether mental illness interferes with competency to stand trial, or if mental illness was a mitigating factor in any crimes that were committed.

He added also that an independent psychiatrist or other mental health professional not directly employed by ICE should be available for forensic evaluations. The quality of diagnosis and treatment services within detention facilities should meet standards established for the federal court system, and detainees should be able to plead not guilty by reason of insanity as they can in the federal system.

And he said that deportees should be provided case management to ensure access to services wherever they are deported.

Finally, Pumariega said he would like to see a task force of APA's Council on Psychiatry and Law and Council on Minorities and Mental Health Disparities devoted to the issue.

Zonana added that the right to have a guardian ad litem appointed, as in routine civil court cases, would also be an improvement.

He said that there are a number of immigration clinics, similar to Yale's, at law schools around the country and that other forensic psychiatry programs also offer consultation. Zonana said evaluations provided by trainees in Yale's Law and Psychiatry Program have played a critical role in a number of cases in which a client was seeking asylum.

"We also provide psychiatric referral and treatment services to these individuals," he said. "Asylum seekers do very much better if they are represented by the law school clinic, and they have a much higher rate of success."

"Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System" is posted at <www.hrw.org/en/reports/2010/07/26/deportation-default-0>.