Avoiding an 'unavoidably imperfect situation': searching for strategies to divert mentally ill people out of immigration removal proceedings.

• Author: Bowen, Molly

I don't know why they want to torture me. I'm a rich man. I'm god. They want to have me remove the plants from heaven to earth ...

--Michael A., a man with severe mental illness, explaining to an asylum officer why he fears persecution if removed to Nigeria. (1)

Michael A. came into the immigration system, was detained, and asserted that he feared persecution if returned to Nigeria, the country that U.S. Immigration and Customs Enforcement (ICE) asserted was his home country. (2) He was interviewed by an asylum officer who recommended that he receive a hearing in immigration court on his asylum application. (3)

Thousands of individuals have similar experiences every year. What is important about Michael A.'s case is that, at some point during this process, he claimed that he was a United States citizen. (4) Attorneys with knowledge of this case state that the government's proof of his status as a non-citizen was uncertain. (5)

The asylum officer who interviewed Michael A. noted that he suffers from psychosis and until recently was on anti-psychotic medication. (6) The asylum officer also stated that his testimony was delusional and therefore implausible; because it was implausible, it was not credible. (7) More specifically, the officer noted his psychosis which "calls into question the entire credibility of his claim." (8) Michael A. received a hearing but his application was denied, and, ultimately, he was ordered deported. (9) This case, and the illegal deportation of multiple mentally ill United States citizens, (10) has raised questions about the treatment of mentally ill individuals in the immigration removal system. (11) if mental illness automatically tarnishes the credibility of one's claim, how seriously did the immigration officer and court explore his claim of citizenship? Did he receive appropriate monitoring, medication, and mental health treatment while detained by the Department of Homeland Security (DHS)? Most importantly, even if Michael A. did not qualify for asylum, are the goals of the immigration system advanced by removing an individual with a severe mental illness, especially when that illness may have presented barriers to the proper presentation of his case?

Recent efforts to better protect mentally ill individuals in removal proceedings have focused on increasing procedural safeguards. Scholars and advocates have called for reforms such as providing free attorneys to indigent mentally ill individuals, (12) requiring DHS to release all mental health records in their possession so an individual can document his mental illness, (13) appointing guardians ad litem for mentally ill respondents (14) and providing training to immigration judges on mental health symptoms. (15) The goal of these reforms is to ensure that all individuals receive a full and fair hearing. (16)

An important procedural reform came in May 2011 when the Board of Immigration Appeals (BIA) decided Matter of M-A-M-. (17) For the first time, Matter of M-A-M-established a requirement for immigration judges to assess mental competency and provided suggestions for safeguarding the procedural rights of mentally ill individuals in removal proceedings. (18) These procedural reforms, however, are insufficient to stop wrongful removals of mentally ill people. To prevent the wrongful removal of people with severe mental illness, this Note argues that the focus must shift from simply increasing procedural rights to developing options to divert these individuals out of immigration removal proceedings altogether. Terminating proceedings for mentally ill individuals or exercising discretion not to place those persons in proceedings in the first place will increase accuracy of outcomes, guarantee that those respondents who are ultimately removed had a meaningful opportunity to present their case, and make the immigration system more humane.

This Note presents the unique challenges facing mentally ill individuals in immigration removal proceedings and the lack of tailored protections in the current system. It explores how Matter of M-A-M-presents a limited improvement to the current system. Finally, it presents two pathways out of immigration removal proceedings, termination and prosecutorial discretion, and offers recommendations for strengthening these options.

1. SEEING THE PROBLEM: MENTALLY ILL PEOPLE IN REMOVAL PROCEEDINGS

   1. The Process of Proceedings

      Many different paths may bring an individual with severe mental illness into the immigration removal system. Immigration enforcement begins with the apprehension of an individual by a DHS officer (19) or by a state or local law enforcement officer. (20) If the officer has prima facie evidence that the individual "was entering, attempting to enter, or is present in the United States in violation of the immigration laws," (21) the immigration officer may serve a charging document commonly called a "notice to appear" on the individual. (22) This commences removal proceedings. (23) The individual may be detained from apprehension through the conclusion of the proceeding. (24) in contested removal proceedings, an attorney represents ICE. (25) The noncitizen has a right to representation, but only at his or her expense. (26) At the removal hearing, ICE must establish by clear and convincing evidence that the charged individual is in fact a noncitizen. (27) if that individual is found to be a noncitizen and is deportable, (28) he or she will be removed unless he or she is eligible for a form of affirmative relief from removal such as cancellation of removal, asylum, or adjustment of status. (29) Both the noncitizen and ICE may appeal a decision to the BIA. (30) Judicial review is available for some, but not all, administrative decisions. (31)

   2. Mental Illness in the System

      A significant number of individuals in immigration removal proceedings have a mental illness. The majority of information on individuals in removal proceedings with mental illness focuses on the detained population. The Department of Immigrant Health Services estimated that between two and five percent of individuals detained in 2008 had a "serious mental illness" and between ten and sixteen percent of detainees had "some form of encounter with a mental health professional or the mental health system." (32) Additionally, for some people the experience of detention and removal proceedings leads to increased symptoms of anxiety and depression. (33)

      The 2008 ICE Standards provide guidance for assessing and responding to mental illness in detained individuals. Specifically, these standards provide that newly admitted detainees will have a mental health screening within twelve hours and will receive a comprehensive appraisal within fourteen days; all detainees will have access to twenty-four-hour emergency medical, dental, and mental health services; and that "detainees with ... known mental health concerns will be referred ... for evaluation, diagnosis, treatment, and stabilization." (34) Unfortunately, these standards are not always met. (35) Many detention facilities do not meet the guideline of conducting a mental health assessment within twelve hours of a new detainee arriving. (36) The practice of conducting mental health screenings in English is a problem for the many detainees who are not proficient English-speakers. (37) Lack of staff raises concerns about supervision and care. (38) Dennis Slate, a top mental health official in ICE, reported that the ratio of detention staff to mentally ill inmates was 1:1,142, (39) far below the ratio of 1:400 in Federal Bureau of Prisons facilities. (40)

      Mentally ill individuals experience unique obstacles in immigration court, and immigration judges have identified working with incompetent respondents as "one of the many challenges" that they face. (41) For individuals with severe mental illness the courtroom experience may become "an experience of pervading perplexity, bewilderment, and distress." (42) Many forms of mental illness exaggerate or diminish one's presentation of emotion, making judges less likely to believe that an individual has good moral character and merits the judge's favorable exercise of discretion. (43) Mental illness is dynamic; a person who is competent to perform some tasks may nonetheless be unable to present evidence and understand the proceeding. (44)

      It is impossible to quantify the number of individuals whose mental illness has prevented that individual from presenting his or her case for relief from removal. However, there are multiple cases in the last ten years where mentally ill United States citizens have been illegally removed. (45) Because ICE does not have jurisdiction over United States citizens, these removals are unlawful. (46) One such example is Peter Guzman, a cognitively-impaired twenty-nine-year-old United States citizen who came to ICE's attention after his arrest for trespassing. (47) He was deported to Mexico and was missing for approximately three months before his family found him and brought him home. (48) Another case is Mark Lyttle, a United States citizen with "a record of bipolar depression and a learning disability," who was removed to Mexico on two occasions even though FBI fingerprint records indicated that he was a United States citizen. (49) In another case, a severely mentally ill United States citizen told immigration officials that she was a Russian immigrant. (50) She was almost removed to Russia as a result. (51)

      The unlawful removal of mentally ill United States citizens is a symptom of the error rate in the immigration adjudication system. Some error is likely, (52) but the immigration system's inability to determine that a respondent is a United States citizen raises great concerns about less-obvious injustices and mistakes in the removal system. (53) The errors matter because of the harsh consequences of removal, especially for an individual with serious mental illness. Peter Guzman was found...