Deportation of the mentally ill

In honor of World Mental Health Day and Mental Illness Awareness Week, this article discusses immigration cases as they pertain to mental illness, including the deportation of the mentally incompetent.

In the United States, issues involving representing a defendant in a criminal case or a respondent in an immigration case are substantial and always present challenges. In essence, the legal system is not equipped to deal with the ever-increasing number of cases involving mental illness. In U.S. immigration cases involving deportation of the mentally incompetent — especially respondents with a past criminal history — the emphasis is on the criminal act.

Consider a deportation case in Canada (IMM-3404-10, 2011 FC 895, Federal Court of Canada), in which the United Nations ruled that Canada's deportation of a mentally ill Jamaican man who had lived in that country for much of his life amounted to cruel and inhumane treatment. Canadian authorities had ruled that he was ineligible to remain as a result of a 2005 conviction for assault with a weapon. Canada argued that the man's removal was reasonable and proportionate to the gravity of his crimes and the danger he posed to the public. According to the UN Human Rights Committee, Canada's actions effectively left the man without medical and family support.

Similar to the Canadian case, the U.S. government tends to be careless about the future of the deportee once he or she is removed, so long as the person is no longer a burden on the United States. Effectuating deportation of a mentally ill person, irrespective of prior convictions or charges, makes a mockery of the Eighth Amendment's concept of cruel and unusual punishment.

Sometimes a judge's only remedy in an immigration case is to close the case administratively, and it is not uncommon for the mentally ill to remain in detention and be forgotten for six months or, at times, years. Short of a challenge to free the detainee — especially where the detainee cannot afford an attorney — the person may remain in immigration custody. This alone presents practitioners with an ethical obligation that loses its balance when weighed against the cost of representing an indigent, mentally ill person in federal custody. It is noteworthy that a detainee during removal proceedings may petition the court for a bond hearing to facilitate release.

Bail and its amount are discretionary with the immigration judge, determined on a case-by-case basis and subject to opposition by the government's trial counsel. If the bail amount is prohibitive — which in some cases it is — the mentally ill detainee may remain in detention awaiting care or release. Add to this the fact that a mentally ill person cannot assist his or her own counsel in a defense, and it gives a whole new meaning to the term "justice served." Anyone involved in such a case, or their loved ones, should immediately seek the services of a qualified immigration law firm.