THE IMMIGRANT PARADOX: PROTECTING IMMIGRANTS THROUGH BETTER MENTAL HEALTH CARE.

• Author: Moore, Andrew F.

1. INTRODUCTION

   In recent years, disturbing stories of mentally ill people facing deportation have found their way into mainstream media, and have brought to light problems they face in our immigration system. (1) In detention, without medication, support or professional help, these individuals reveal just how helpless someone can become. The stories tell of being trapped in a series of holding facilities, unable to understand the legal proceedings that face them, with their mental health deteriorating so that they are unable to communicate without representation. (2) The stories also reveal a legal system that is not prepared to cope with mental illness.

   A whole host of issues arise when it comes to the treatment of the mentally ill in our immigration system including exclusion from admission, (3) due process issues when it comes to removal, (4) and access to treatment while in detention. (5) Upon looking into each of these issues, it becomes clear that the stigma attached to mental illness is alive and well in our immigration system. (6) As the news stories above reveal, procedural issues--such as the overuse of detention, assessing competency, and the right to representation--moved to the forefront of concern for those advocating for fairness in our immigration system. (7) There is good reason for this focus given the widespread human rights violations that are transpiring in our system. (8)

   This situation raises other compelling and overlooked issues: to what extent has mental illness placed a person into the removal system in the first place? Can better access to mental health care help immigrants avoid conduct that leads to removal? This article will explore these issues, looking at developments in mental health care in the United States generally, the particular needs of immigrants to mental health care, and the barriers they face. A review of the literature on the mental health treatment of immigrants reveals an interesting phenomenon: immigrants arrive in the United States with better mental health overall when compared to the general population of the United States. (9) This phenomenon has been dubbed by psychologists and scholars studying the issue as the "immigrant paradox," and runs contrary to perceptions, both historical and contemporary, that immigrants are more likely to be impaired and a burden. (10) Studies show, however, that over time many immigrants' mental health deteriorates, generating behavior--such as drug use or low-level criminal activity--that might place them into the immigration removal system. (11) If this is the case, then improved mental health care can prevent behavior leading to deportation.

   Part II of this article provides an overview of mental health care in the United States. The story is one of de-institutionalization and an increasing overlap between those in need of mental health care and negative behaviors leading to involvement in the criminal justice system. (12) Part III will focus on the particular mental health challenges of immigrants in the United States. The article details the barriers to receiving mental health care, such as social and cultural barriers, economic barriers such as poverty and a lack of access to insurance, that account for the result that immigrants are underserved and underutilize mental health services. (13)

   Part IV connects how immigrants' mental health issues can lead to removal from the United States. It starts with the history of excluding those deemed to be mentally or physically deficient or likely to become a public burden. Reflected in these exclusive grounds is a deeply rooted belief that other countries would send those who are feeble, incompetent or criminal to the United States. (14) While there are strains of that thinking still present in our public debate, (15) the evolution of the mental health system and the immigration removal system toward a criminal enforcement approach suggests that today many immigrants who do not receive adequate mental health treatment face removal for a wide variety of actions and offenses that grow out of the untreated mental issues. (16) In fact, what has happened is that the modern removal grounds for drug use and criminal behavior have replaced the traditional mental health exclusion grounds as means of deporting those deemed deficient. (17)

   Lastly, Part V offers that the states may be the best location for re-framing the issue as one of access to mental health care. This is the case for two reasons. First, with the tone of the Trump administration at the federal level, there is scant reason to hope for reform that would address the mental health needs of immigrants. (18) Second, the states are the main actors in the provision of mental health services and the political environment in several states may be more open to viewing the problem as one of access to care. (19) Using states as a proving ground, we can evaluate how much improved access disrupts the cycle of removal. (20)

   A few terms used in this piece should be explained. A mental illness is a condition that affects a person's thoughts, mood or behavior. (21) There are several broad categories of mental illness, which reveal the complexity of human psychology: anxiety disorders, attention deficit disorders, mood disorders such as depression, personality disorders, and schizophrenia are some of the categories identified by the major entities and organizations that study mental health. (22) This article will focus on the full range of these disorders and how they may bring an immigrant within the removal system. Further, this article uses the term "immigrant" and "immigrants" to discuss those who are not citizens, including those who entered without permission or who overstayed the permission they received. (23) Finally, this article will discuss refugees and asylum seekers, defined as those seeking protection from persecution or fear of persecution in their own country because of their race, religion, nationality, membership in a particular social group or their political opinion. (24)

2. THE OVERALL STATE OF MENTAL HEALTH CARE IN THE UNITED STATES

   1. Overall Developments

      Studies by mental health organizations have given the country a failing mark when it comes to our national mental health care system. (25) States, as the primary providers of services, (26) do not keep comprehensive statistics on what percentage of the population in need of services are helped, but estimates are that less than half of those with serious mental illness receive treatment. (27) This situation is partly an issue of funding and partly an issue of how our country has decided to provide treatment. (28)

      The funding of mental health care is largely left to the states, (29) with support from the federal government through the matching dollars provided by Medicaid. (30) Medicaid plays the largest role in paying for services, providing coverage for mental health services as long as the recipient meets strict federal eligibility requirements. (31) States' Medicaid plans vary greatly in terms of how they define mental illness, which results in inconsistent coverage. (32) Additionally, federal rules prohibit the use of Medicaid funds to pay for inpatient services in mental health hospitals. (33)

      Outside of the publicly funded programs, private insurance is the second major source for covering costs. (34) For those that can afford to pay for private insurance or receive it through their employer, up until the recent changes in parity requirements, private health plans could exclude or limit coverage for mental health services. (35) Private health insurance has consistently treated mental illness differently from physical illness. (36) There is no established definition of what constitutes a mental illness, allowing private insurers to exclude groups of people, (37) as do the states under Medicaid. (38)

      When it comes to providing treatment, the overall arc of the treatment for the mentally ill in this country has been one of deinstitutionalization, in which those with mental illness no longer receive their care in the structured environment of a hospital or similar facility. (39) This move was seen as an improvement over the inhumane conditions of the system that evolved from the nineteenth century up until the 1950s, shifting to a system that focused on patients' rights. (40) But, as states have moved toward deinstitutionalization, they have operated disjointed systems of care that leave gaps, not adequately balancing outpatient services with the reduction in inpatient beds. (41)

   2. The Consequences

      For over thirty years scholars have explored the impact of deinstitutionalization on the mentally ill population, in which they have moved from institutions to living on the street, engaging in behavior seen as deviant, and being drawn into the criminal justice system. (42) Studies correlate mental illness with an increased likelihood of a series of negative living conditions: the increased likelihood of being persistently homeless; (43) of having drug and alcohol addiction; (44) and being incarcerated. (45) The connection between mental illness and behaviors such as drug and alcohol use and criminality is complex. Surveys and studies identify a correlation between mental illness and negative behaviors but are careful not to assign causality. However, they do note consistent observations. (46)

      First, there is a high degree of co-occurrence (comorbidity in psychological parlance) of mental health issues and substance abuse disorders. (47) A major nationwide survey of mental health in the United States in the 1990s revealed this connection as well as that co-occurring addictive and mental disorders had fairly low rates of treatment, (48) and that mental disorders usually appear in people first followed by an addictive disorder. (49) Those drawing on the study noted that temporal order does not imply causal relation nor does occurrence of one predict the occurrence...