Our detention and deportation system failed Anya (her name has been changed for confidentiality purposes). She was born in Russia with heart defects and deformed hands. She was rejected by her parents for many years, spending her infancy in hospitals and institutions. Later she was abused by her parents, then abandoned by them. She immigrated to the United States as a young teen, adopted by U.S. citizens. After more than a decade, she had a child of her own, whom she abused. Anya was diagnosed with mental illness. Although she was convicted of child abuse, the state court recommended medication, counseling, and a chance to regain custody of her child. But Immigration and Customs Enforcement ("ICE") took over, and Anya was deported. Without a chance to comply with the state family court's order, Anya's ties with her child were permanently severed. She should not have lost her child. She should not have been removed.
The law required ICE to detain Anya. Mandatory ICE detention is required when the immigrant has been convicted of a moral turpitude crime where the maximum sentence is more than one year, even if the person was not sentenced to more than one year. Anya's child abuse conviction fell into that category, even though she was actually only sentenced to a few months in jail. Detention radically affected the complexion of the proceedings. Her attorneys could not meet and prepare with her in noncustodial settings, she could not assist in the gathering of and assembling of helpful evidence, and, perhaps most importantly, she could not abide by the family reunification order of the state court.
Individuals facing removal who are in detention suffer a distinct disadvantage in pursuing a viable claim for relief. Depending on the location of the detention facility, access to counsel can be severely limited. Some detention facilities are located in remote areas where few immigration attorneys are available. Being in custody itself can be very demoralizing, and detained individuals can be discouraged from pursuing viable claims due to the circumstances of confinement; they may think of deportation as a way of getting out of custody. Moreover, communication with attorneys (if available), friends, family, and potential witnesses is hampered.
For an attorney representing a client in ICE detention, the challenge to effective communication is severe. In complex cases, adequate representation requires hours and hours, if not days and weeks, of preparation. Developing a trusting and open relationship with the client is essential. Both the attorney and the client need to be able to speak with candor. Each element of a defense or claim for relief is important, and the explanation can be complicated because of the nuances of the law. Discussing case strategies and tactics is also important. When a client is detained, all of these efforts are truncated and less possible.
Conditions at ICE detention facilities leave a lot to be desired. Numerous international and national human rights organizations, scientific journals, and newspapers have published reports documenting different aspects of immigration detention conditions in heartbreaking detail. While all detainees endure inexcusably harsh conditions, some problems disproportionately affect those with mental disabilities while other problems are particular to them. Mentally ill detainees are especially vulnerable because they cannot advocate for themselves when they are not competent, and because they may be punished for behavior that they cannot control.
Immigration courts need more tools. Consider the options that have evolved in the criminal justice system over the years: drug courts, mental health courts, community service options, diversion programs. Why have these options evolved? Because criminal and juvenile courts are realizing that incarceration is not the answer for every defendant. They understand that in certain cases, a different option is worth trying for the sake of the defendant as well as the community. The problem with the immigration court system is that the immigration judge essentially only has two options: deportation or the full right to stay lawfully. So if an immigration judge has some doubt or is not inclined to take a chance, then the easy choice may be deportation. Allowing a so-called "criminal" alien to stay involves a risk of recidivism that an immigration judge may not want to take. The immigration judge loses immediate control over the life of the immigrant who is granted a waiver, In the meantime, the immigration judge and ICE have no direct influence over the person. In contrast, drug courts, mental health courts, diversion programs, and community courts are constructed in a manner that involve regular reporting to probation departments, community partners, or directly to the court. Ironically, in Anya's case, if relief had been granted, the immigration judge actually had a surrogate who would take control of Anya -- the state Superior Court that had a family reunification plan ready for her. In short, the state court would have monitored her behavior.
Outcomes are often a matter of chance or circumstance. The results of Anya's case could have been quite different without changes in the law if the personalities were different. For example, a different immigration judge might have seen things differently. A different government attorney may have been more sympathetic and taken a more humanistic approach to the facts in the case. A stronger attorney for Anya may have yielded a different result. However, when the stakes are so high, do we really want to leave things to such speculative chance? Matters involving such high stakes should not be left to simple chance or circumstance; because the stakes are so important in removal proceedings, processes must be institutionalized in order to better assure high standards of fairness and consistency. Faced with immigrants suffering from mental disorders, immigration judges should have options available that at least include referrals to mental health professionals outside of detention. At least then, immigrants like Anya would have a meaningful chance.