Hogg Foundation for Mental Health

Detainees with Mental Illness: A Growing Challenge for Immigration Courts

June 1, 2009

Texas Appleseed, with a $50,000 grant from the Hogg Foundation and pro bono assistance from Akin Gump Strauss Hauer & Feld LLP, is investigating the challenges faced by immigrants with mental illness in the federal immigration court and detention system.

According to their research, attorneys and detention center personnel report that increasing numbers of immigrants with significant mental health needs are entering the immigration detention and court system. These detainees face nearly insurmountable obstacles in a system beset with problems for even the healthiest individuals.

Without clear guidance for identifying mental illness or accommodating it in court proceedings, cases often move forward as if immigrants with untreated mental health needs are fully capable of participating.

One immigration judge went so far as to issue an “in absentia” order to deport a woman with mental illness to China, even though she was sitting on the witness stand.

Texas Appleseed has identified the following issues to date:

Detention facilities use inconsistent standards to assess, evaluate and treat immigrants with mental illness, leading to deteriorating mental health for many in their care.

Immigrants receiving mental health treatment, including taking medication to ensure stability, often don’t receive consistent treatment after transferring into or between detention facilities.

Mental health apparently isn’t considered when transferring detainees, although transfers can exacerbate symptoms of mental illness.

Immigration judges are given the undue burden of recognizing and accommodating mental illness in court proceedings without clear procedures.

Immigrants with mental illness are particularly disadvantaged by lack of representation and by the use of videoconferencing.

Medical records often are difficult to access, creating barriers to documenting mental health issues with immigration courts and detention facilities.

A lack of clear immigration court procedures for raising and addressing mental health issues creates unnecessary challenges for judges, attorneys and individuals in the immigration system.

“These issues point to serious inequities for people with mental illness who are in the immigration detention and court system. Texas Appleseed’s findings clearly show the need for positive change now,” said Dr. Octavio N. Martinez, Jr., the foundation’s executive director.

Texas Appleseed has proposed key preliminary recommendations to:

Establish enforceable standards to assess, evaluate and treat mental illness and provide for continuity of care in immigration detention facilities.

Require detention facilities to provide health records in a timely manner at the request of immigrants or their attorneys.

Adopt regulations for immigration courts to establish explicit processes for competency hearings and for appointing guardians ad litem.

After completing the research phase, Texas Appleseed will submit a final report to the foundation with findings and expanded policy solutions to ensure detainees with mental illness have access to justice in the immigration court system.