Years ago, when I worked for a non-profit representing detained indigent immigrants, a particular immigration judge often called our office when the government sought to deport an apparently mentally ill person. Her request was always that we interview the detainee -- not that we represent him. I had the impression was that she wanted to salve her conscience before ordering the impaired person removed.
At the judge's urging, I dutifully visited immigration detention centers, and often encountered detainees with whom communication was impossible -- and not because of a language barrier. Either the detainee was incapable of processing my legal explanation of his situation, or was not interested, because, say, he held a fervent belief that some divine being would save him from removal. The result was usually that the detainee went to his immigration hearings unrepresented, and invariably was ordered deported. I do not know what ultimately happened to these people, but I imagine that many met profoundly unpleasant fates.
The Department of Justice is now taking long overdue steps to provide procedural protections to the mentally ill in removal proceedings. Specifically, the Department recently announced Phase 1 of a plan to identify immigration detainees with mental conditions that impair their ability to understand deportation proceedings, and to provide such persons with attorneys. (Unlike in criminal court, there is no constitutional right to a free lawyer in immigration court).
In an innovative twist that may prove controversial, the mentally impaired detainee does not have the option to refuse representation. Once implemented, this plan may save many detainees from removal if they have valid legal claims to stay in the United States -- claims that they would have been unable to put forth on their own.
The plan is laudable, promising to remedy a problem that has long haunted both advocates and judges. What the plan cannot do, however, is stop removal of the cognitively impaired who have committed petty crimes, if those crimes trigger mandatory deportation. And mandatory deportation doesn't require much. For example, a one-year sentence for a shoplifting conviction, or for a threat to commit a crime, may result in mandatory deportation. Mandatory removal is also triggered if a person receives a waiver (forgiveness) for a petty crime, but then commits another. The immigration statutes allow no second chance. The severity of the crime -- or lack thereof -- is irrelevant.
It is generally agreed that mental illness and petty criminality are often linked. Because mental illness also may be associated with recidivism, winning an immigration case for the mentally ill is sometimes a band-aid solution to a much deeper problem. Few of us condone any type of criminality, whoever commits it. It is nonetheless troubling that non-violent offenders are torn from their friends and families forever because of petty infractions. They lose any chance at all for recovery, and may be doomed to horrific existences, or even death, in countries they hardly remember.
Throughout years of debate over immigration reform, many have spoken about the devastating effects of mandatory deportation for minor offenses. What has not received attention, to my knowledge, is this "two strikes and you're out" dynamic, no matter what your life circumstances or prospects for recovery. For someone with a mental health condition that affects impulse control or the ability to grasp consequences, whether he is deported is often a matter of time. In such circumstances, immigration judges should have the discretionary authority to permit a second or subsequent application for a waiver, and to balance the risks of allowing the immigrant to remain in the United States against the terrible fate he may face abroad. Mental health experts could assist in the discretionary determination whether the immigrant merits another chance. It is inhumane to exile persons due to mental illness, but for some it is the inevitable outcome of the statutes in effect today.