the kafkaesque experience of immigrants with mental disabilities

THE KAFKAESQUE EXPERIENCE OF IMMIGRANTS
WITH MENTAL DISABILITIES
Navigating the Inexplicable Shoals of Immigration Law
Jennifer L. Aronson*
The term “Kafkaesque”—meaning bewildering and senseless—
refers to early 20th century German novelist Franz Kafka. Kafka’s
The Trial reflects how people struggle with their own social and
political dilemmas in a Kafkaesque world where the law is
impenetrable. Facing similar uncertainty, six plaintiffs in an
ongoing 2010 Ninth Circuit lawsuit (Franco-Gonzalez v. Holder)
are individuals with mental disabilities facing deportation. The
court rendered them incompetent to defend themselves, yet they
struggle to do so without legal counsel in an unfamiliar setting
while remaining indefinitely detained. This article unveils the
parallel between what is essentially an absurd and patently unfair
system of law in The Trial, and the experiences of individuals with
mental disabilities in American immigration courts. Just as
Kafka’s protagonist struggles to prove his innocence in a bizarre
world, the Gonzalez Six also face prosecution in a bizarre system
that is unjustifiable in American jurisprudence.
Keywords: mental disabilities, due process, immigration,
deportation, Kafkaesque, law and literature, Franz Kafka
I. INTRODUCTION
T
he American legal system is a puzzling structure of policies and
procedures, standards, loopholes, and exceptions. The petitioner
often has difficulty navigating this structure absent adequate
counsel. For a petitioner with a mental disability or illness the difficulty of
navigation is then compounded and, in immigration courts, made nearly
impossible. These courts operate with their own rules and procedures, and
to immigrants with mental disabilities, these courts are a paradigm of
bewilderment, alienation, and persecution. These themes are prevalent in
the work of Franz Kafka, one of the most influential literary figures of the
20th century. The term “Kafkaesque” has come to mean bewildering and
senseless,1 and Kafka’s work, reflecting his own struggles, also reflects how
* J.D. Candidate, Syracuse University College of Law, 2012; M.A. Candidate, Cultural
Foundations of Education (Concentration in Disability Policy Studies), Syracuse University
School of Education, 2012; B.A., Communication Studies, Florida State University, 2008.
Many thanks to Professor Michael A. Schwartz, the director of the Disability Rights Clinic at
Syracuse University College of Law, whose guidance and assistance were invaluable in the
creation of this article and whose own work in the disability law field has been fundamental to
my understanding of the issues discussed herein.
1 See, e.g., M15 Russian Spy Claims ‘Truly Kafkaesque’, BBC NEWS UK (24 Dec. 2010),
www.bbc.co.uk/news/uk-12075184 describing the experience of an alleged Russian spy who
was arrested and detained and is now under stringent bail conditions with no inkling as to the
Home Security’s case against her. She is unlikely to ever know the case against her because
her case is to be heard in closed courts with special advocates appointed by the Attorney
General dealing with the evidence. She describes her present situation as “truly Kafkaesque.”
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people struggle in an unjust world.2
The connection between Kafka’s fiction and the reality of American
immigration courts is neglected within legal scholarship, and, as Judge
Richard Posner has pointed out, most lawyers do not consider scholarship
about law in the form of fiction to be relevant to the understanding of the
practice of law.3 This is a fundamental error in the legal profession. This
article seeks to rectify that mistake by using Kafka’s The Trial to illuminate
what is essentially an absurd and patently unfair system of law.
II. GONZALEZ V. HOLDER: AN ILLUSTRATION OF
IMMIGRATION PROCEEDINGS
Someone must have been telling lies about Joseph K., for without
having done anything wrong he was arrested one fine morning.4
A. The Gonzalez Six
Jose Antonio Franco-Gonzalez, 29 years old, is a citizen of Mexico;5 his
parents are lawful permanent residents of the United States. 6 FrancoGonzalez and his siblings recently petitioned for Lawful Permanent
Resident status; 7 however, Franco-Gonzalez has been diagnosed with
moderate mental retardation.8 He did not learn to speak until he was seven
years old, does not know his own birthday or age, has trouble counting,
and cannot tell time.9 Although 29 years old, Franco-Gonzalez functions at
the cognitive level of a 2-year-old. 10 Despite his incapacity, FrancoGonzalez pled guilty in criminal court to possession of a deadly weapon
(not a firearm). Removal proceedings commenced thereafter and FrancoGonzalez remained unrepresented by counsel during those proceedings.11
An immigration judge ordered a psychiatric evaluation of Franco-Gonzalez
and on June 6, 2005, the same judge ordered the closure of FrancoGonzalez’s removal proceedings due to his incompetence. 12 However,
Franco-Gonzalez remained detained for four and a half years—no hearing
was ever conducted to determine whether he presented a danger or a flight
risk sufficient to justify detention.13 The five other plaintiffs in FrancoGonzalez v. Holder, who along with Franco-Gonzalez are known as the
Gonzalez Six, suffer from mental disabilities rendering them incompetent
to defend themselves, and yet, like Franco-Gonzalez, they are forced to do
See id.
See Richard Posner, LAW & LITERATURE, 21 (Harvard University Press, 3rd ed. 2009).
4 Franz Kafka, THE TRIAL, 1 (Max Brod ed., Schocken Books 1974).
5 Complaint, Franco-Gonzalez v. Holder, No. 10-CV-02211 DMG (DTB), ¶ 30 (C.D. Cal.
filed 2 Aug. 2010), www.aclu.org/immigrants-rights/franco-gonzales-et-al-v-holder-et-alfirst-amended-class-action-complaint.
6 See id.
7 See id.
8 Id. ¶ 31.
9 See id.
10 See id.
11 Id. ¶ 32.
12 Id. ¶ 33.
13 Id. ¶ 34.
2
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so in immigration proceedings.14
The American Civil Liberties Union (ACLU) and Human Rights Watch
(HRW) found that a large number of detained immigrants have serious
mental disabilities and lack competence to represent themselves in
immigration proceedings. 15 Despite international laws and treaties, the
Gonzalez Six, along with other immigrants with mental disabilities, suffer
long delays in their removal cases due to their mental disability.
Consequently, they languish in detention for months, even years, without a
hearing wherein the government would bear the burden of proof in
justifying their detention.16 This is Kafkaesque.
Furthermore, neither the Department of Justice nor the Department
of Homeland Security (DHS) have a concrete procedure to identify the
exact number of persons in removal proceedings who have mental
disabilities rendering them incompetent to defend themselves. The
resulting system is therefore “paradigmatically arbitrary.” 17 As the
Department of Immigration Health Services found, in 2008, 2 to 5
percent of all immigration detainees—between 7,571 and 18,929
detainees—had a “serious mental illness.”18 Due to the high costs of legal
representation and the difficulty in finding attorneys for competent
prisoners, approximately 60 percent of respondents in immigration
proceedings have no legal representation,19 a low percentage compared
with the nearly 97 percent of respondents with mental disabilities
without representation. 20 Without legal representation, many
immigrants with mental disabilities remain imprisoned for years, unable
to obtain fair hearings, and are erroneously deported.21 Immigrants with
mental disabilities have difficulty presenting evidence or arguments
supporting their claims to remain in the United States, and are at the
mercy of the DHS, which lacks clear policies and procedures about
releasing detainees with mental disabilities. 22 As of this writing, the
Gonzalez Six remain incarcerated.23
Id. ¶ 23.
Sarah Mehta, Human Rights Watch and American Civil Liberties Union,
DEPORTATION BY DEFAULT, 3–5 (2010), www.aclu.org/files/assets/usdeportation0710_0.pdf.
16 See Complaint, Franco-Gonzalez v. Holder, supra note 5 ¶ 22.
17 See id. at ¶ 5.
18 See id. at ¶ 23.
19 See U.S. Department of Justice, Executive Office for Immigration Review, FY 2009
STATISTICAL YEAR BOOK (2010), www.justice.gov/eoir/statspub/fy09syb.pdf.
20 Texas Appleseed, JUSTICE FOR IMMIGRATION’S HIDDEN POPULATION, 13 (2010),
www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=313.
21 See, e.g., American Civil Liberties Union, ACLU FILES LAWSUITS AFTER GOVERNMENT
WRONGFULLY DEPORTS U.S. CITIZEN WITH MENTAL DISABILITIES (13 Oct. 2010),
www.aclu.org/immigrants-rights/aclu-files-lawsuits-after-government-wrongfully-deportsus-citizen-mental-disabili (stating that Mark Lyttle, a U.S. citizen of Puerto Rican descent
with mental disabilities, was wrongfully deported to Mexico after North Carolina officials
referred him to ICE as an undocumented immigrant. Lyttle had never been to Mexico, shared
no Mexican heritage, spoke no Spanish, and did not claim to be from Mexico).
22 See Complaint, Franco-Gonzalez v. Holder, supra note 7 at ¶ 28.
23 Id. ¶ 5. In December 2011, the Federal Court in California granted class-action status
to the Gonzalez Six. The District Court for the Central District of California found that the
problems identified in the lawsuit are systematic, and there is no mechanism for evaluating
whether immigration detainees with mental disabilities are able to represent themselves. See
14
15
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Sometimes an immigration judge recognizes that a respondent with a
mental disability needs assistance, but the typical approach is to delay
the proceedings, subjecting the detainee to prolonged incarceration
because of his/her mental disability.24 Evaluators of the person’s mental
capacity lack standards or procedures for their assessment, adding to the
arbitrary and capricious nature of the system.25 The government’s failure
to provide basic procedural protections for detained immigrants with
mental disabilities results in unnecessary detention in violation of the
fundamental rights of due process and human dignity. Again, this is
Kafkaesque.
B. Navigating the Shoals of Immigration and Customs
Enforcement Proceedings
Approximately 392,000 individuals undergo immigration proceedings
in the United States each year. 26 The Immigration and Customs
Enforcement (ICE) moves to remove noncitizens when they fall under a
category for deportation.27
Some of these individuals are asylum seekers fleeing persecution
in their home countries; others come to ICE’s attention through
referrals from local law enforcement agencies, during workplace
raids or border crossings; still others, including legal permanent
residents, are transferred to ICE after serving sentences for a wide
variety of crimes.28
Legal permanent residents with a criminal conviction may face
deportation after disposal of criminal charges against them.29 Sometimes,
ICE immediately moves to deport these residents after their criminal
conviction; in other cases, ICE may delay removal proceedings for several
years after sentencing.30
Noncitizens seeking asylum may find themselves in an immigration
proceeding. 31 Judges with the Executive Office for Immigration Review
(EOIR) hear “defensive” asylum applications in which applicants request
asylum as a defense against removal from the United States:
The [judge] hears the applicant’s claim and also hears any
arguments about the applicant’s eligibility raised by the U.S.
Government, which is represented by an [ICE] attorney. The
Federal Court Grants Class-Action Status to Unrepresented Immigration Detainees with
Mental Disabilities, Immigrants Rights ACLU (20 Dec. 2011), www.aclu.org/immigrantsrights/federal-court-grants-class-action-status-unrepresented-immigration-detainees.
24 See HRW, supra note 15 at 47–49, 72–74 (noting that immigration judges are not
authorized to release detainees, notwithstanding their serious mental disabilities and the
prolonged length of detention).
25 See Complaint, Franco-Gonzalez v. Holder, supra note 5 at ¶ 5.
26 See U.S. Department of Justice, supra note 19.
27 See HRW, supra note 15 at 18.
28See id.
29 See id.
30 See id.
31 Id. at 19.
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[Immigration Judge] then makes an eligibility determination. If
the applicant is found eligible, the judge orders asylum to be
granted. If the applicant is found ineligible for asylum, the [judge]
determines whether the applicant is eligible for any other forms of
relief from removal and, if not, will order the individual removed
from the United States.32
According to the Ninth Circuit, “[i]mmigration laws have been
termed second only to the Internal Revenue Code in complexity.”33 For a
nonlawyer suffering from “long-term physical, mental, intellectual or
sensory impairments,” 34 immigration proceedings present confusion,
bewilderment, and danger. This is unjust according to philosopher John
Rawls, who envisioned a society where all citizens hold basic rights.35 In
Justice as Fairness, Rawls expounds two principles of justice supporting
the “greatest benefit to the least advantaged”36: (1) an adequate scheme
of basic liberties; and (2) a reduction of social and economic inequalities
for the least-advantaged members of society.37 Rawls defines the leastadvantaged as those with the fewest “social ‘primary goods’ which ‘are
generally necessary to enable citizens adequately to develop and fully
exercise their two moral powers.” 38 Applying Rawls’ principles to ICE
proceedings, clearly most noncitizens with mental disabilities facing
deportation have few or no social primary goods. Many revolve in and
out of psychiatric institutions, unable to grasp the intricacies of the law.
Many hold menial jobs, and some have committed crimes either because
they failed to take their medication or lack the capacity to tell right from
wrong. Additionally, some may be alienated from family members who
fear their mental disability.39 Absent procedural due process, ICE does
not provide these immigrants with the “greatest benefit to the least
advantaged.”40
32 U.S. Citizens and Immigration System, OBTAINING ASYLUM IN THE UNITED STATES: TWO
PATHS (14 Oct. 2008), www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66
f614176543f6d1a/?vgnextoid=e3f26138f898d010VgnVCM10000048f3d6a1RCRD (last visited
2 Nov. 2010).
33 Baltazar-Alcazar v. Immigration and Naturalization Service, 386 F.3d 940, 948 (9th
Cir. 2004).
34 Convention on the Rights of Persons with Disabilities (CRPD), G.A. Res. 61/106, U.N.
Doc. A/RES/61/106, art. 1 (13 Dec. 2006), art. 1.
35
See John Rawls, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2008),
http://plato.stanford.edu/entries/rawls/.
36 Mark Stein, DISTRIBUTIVE JUSTICE AND DISABILITY, 104 (2006).
37 John Rawls, JUSTICE AS FAIRNESS, 42 (2001).
38 See Stein, supra note 36, at 105.
39 See HRW, supra note 15, at 14–15. See also Complaint, Franco-Gonzalez v. Holder
supra note 5, ¶¶ 57–63. Nguyen was transferred into DHS custody after she violated an order
of protection to keep her away from her father and older sister. One can infer from the facts
that her violation of the no-contact orders was directly related to her auditory hallucinations
and need for help from her family in a foreign place.
40 See Rawls, supra note 37. Many commentators have thought that Rawls erred in
identifying the least advantaged, and that the disabled, rather than the poor, should indeed be
considered the least advantaged under a Rawlian system. I do not accept the position that the
disabled should be considered the least advantaged. In this case, immigrants with mental
disabilities are the least advantaged of the detained noncitizens for reasons set forth in this
article.
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III. FEDERAL LAW AND THE RIGHTS OF DETAINED
IMMIGRANTS WITH MENTAL DISABILITIES
A. The Immigration and Nationality Act and Mental
Disabilities
The Immigration and Nationality Act (INA) requires that all persons in
immigration court have a “reasonable opportunity” to present, examine,
and object to evidence. 41 Additionally, all persons have the right to be
advised of the charges against them,42 and to be represented, at no expense
to the government, by counsel of the person’s choosing.43 The INA also
requires the attorney general to provide procedural “safeguards” for those
who are incompetent due to serious mental disability.44 The “safeguards”
include:
•
8 C.F.R.§1240.10(c), prohibiting admissions by unrepresented
incompetent persons, but allowing admissions by friends or
relatives of the person and allowing the DHS to prove
removability without involvement of the incompetent person;
•
8 C.F.R.§103.5(a)(c)(2), requiring the DHS to serve charging
documents on the custodian of the facility where the person is
housed and, if possible, “the near relative, guardian,
committee, or friend;” and
•
8 C.F.R.§1240.4, allowing a “mentally incompetent person” to
be represented by the custodian of the facility where the
person is housed.
Surprisingly, none of the regulations—“nor any other rules,
regulations, policies or procedures adopted by the Attorney General, DHS,
ICE or the EOIR”—defines mental incompetence, sets forth procedures for
evaluating whether or not any given person lacks competence to represent
himself or herself, requires a review of readily available information to
determine if the detainee has a serious mental disability or states what, if
any, additional safeguards should be provided to a noncitizen found to be
incompetent.”45 The regulations do not specify appointment of counsel for
incompetent individuals and make no provision for altering their custody
status. 46 Instead, the regulations authorize the appointment of an ICE
“custodian”—warden of the detention facility—to appear as the individual’s
legal representative.47 But this regulation violates the right to a fair and
impartial proceeding since ICE employs the warden. 48 The lack of
8 U.S.C. § 1229(a)(b)(4)(B) (2010); 8 C.F.R. § 1240.10(a)(4) (2005).
8 U.S.C. § 1229(a) (2010); 8 C.F.R. §239.1 (2003).
43 8 U.S.C. § 1229(a)(b)(4)(A) (2010); 8 C.F.R. § 1240.10(a)(1) (2005).
44 See 8 U.S.C. § 1229(a)(b)(3) (2010).
45 See Complaint, Franco-Gonzalez v. Holder supra note 5 at¶ 85.
46 See id.
47 See HRW, supra note 15 at 44.
48 See id.; See also Universal Declaration of Human Rights (UDHR), G.A. Res. 217 (III)
A, U.N. Doc. A/RES/217 (III), art. 10 (10 Dec. 1948).
41
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safeguards and procedures protecting immigrants with mental disabilities
coupled with ICE’s role as the fox guarding the chicken coop are the
hallmarks of the system confronting Joseph K. in The Trial.
Furthermore, the regulatory safeguards assume that a finding of
incompetency has already been made.49 However, no authority provides
when or how an immigration judge should make a competency finding.50
Given the procedural uncertainty surrounding the competency issue, an
immigration judge may choose to assume the immigrant is competent
absent a hearing. 51 Alternatively, the judge may make only a cursory
examination as to whether the respondent understands the nature of the
proceedings, thereby avoiding a competency finding or hearing.52 There is
no statutory authority for an immigration judge to appoint counsel or a
guardian for an immigrant with a mental disability. 53 Again, this is
Kafkaesque.
B. Absence of Due Process in ICE Proceedings
Respondents in immigration and removal proceedings, including those
with mental disabilities, are entitled to a fair hearing and a chance to
defend against the charges.54 Indeed, the incompetency doctrine has been
characterized by the Supreme Court as “fundamental to an adversary
system of justice.” 55 This doctrine bars trial if the defendant does not
understand the charges against him, cannot effectively consult with
counsel, and cannot assist in his own defense.56 “Due process” expresses a
normative ideal for decisions regarding the exercise of power. 57 Due
process has come to require decisions that are not arbitrary and are
consistent with publicly accepted aims and values.58
Procedural due process is “the set of procedures, epitomized by the
judicial trial, whereby governing rules and standards are brought to bear
on individuals in specific cases.”59 Absent due process, the entity violates
49 Executive Office for Immigration Review, Competency Standards Report 2,
www.justice.gov/eoir/vll/benchbook/tools/MHI/library/EOIR%20Competency%20Standard
s%20Report%20(May%2011,%202010).pdf.
50 See id.
51 Id.
52 Id.
53 See HRW, supra note 15 at 44.
54
Amicus curiae brief, In the Matter of: L-T, 4 (3 Sept. 2010),
www.americanimmigrationcouncil.org/sites/default/files/docs/lac/Matter-of-L-T-9-14-10.pdf.
55 Bruce J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L. REV. 921, 950
(1985) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)).
56 See id.; see generally Human Rights Watch, LOCKED UP FAR AWAY: THE TRANSFER OF
IMMIGRANTS TO REMOTE DETENTION CENTERS IN THE UNITED STATES 43 (2009) (Table 14
illustrates the number of noncitizens appearing in immigration court without counsel
between 2000 and 2008).
57 See also Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth
Amendment, applicable to the states through the Fourteenth Amendment, requires states to
provide counsel, at public expense if necessary, to individuals facing serious criminal charges)
[hereinafter Gideon].
58 See id.
59 Id.
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the Fifth and Fourteenth Amendments.60 Although procedural due process
is required, “how much process is due” remains in question. Due process
entails, at a minimum, a hearing for the individual.61 The hearing requires
a judicial assessment balancing the gravity of the individual’s interest at
stake and avoiding factually misinformed or legally erroneous decisions.62
By any measurement of due process, what happened to the Gonzalez Six
was not due process.
Franco-Gonzalez was held for approximately four and a half years
without a hearing:
[His] continued detention . . . without a hearing violates the
Immigration and Nationality Act, because no immigration
detention statute authorizes [his] detention for a prolonged period
of time, absent a hearing where the government bears the burden
to prove that [this] prolonged detention remains justified in light
of [Franco-Gonzalez’s] mental disabilities and the attendant delays
in [his] removal proceedings.63
It is imperative to note that administrative law and the U.S.
Constitution are two different things in immigration hearings. While the
right to counsel is a statutory right granted under the Administrative
Procedure Act (APA),64 it is not a guarantee under the U.S. Constitution.65
According to the APA, a person compelled to appear before an agency is
entitled to be accompanied by counsel or, if permitted by the agency, by
another qualified representative.66 Therefore, although there appears to be
no constitutional basis for the right to counsel, the individual in an
administrative proceeding (such as ICE) has a statutory right to counsel.67
Some courts argue that “due process does not protect an incompetent
defendant from deportation.”68 However, a decision by the Ninth Circuit
asserts immigration courts must ensure due process for mentally
incompetent persons.69 In Nee Hao Wong v. INS, the respondent not only
had counsel but also a state court–appointed conservator who was able to
assist the attorney.70
60 The Fifth Amendment forbids the United States to deprive any person of life, liberty,
or property without due process of law. The Fourteenth Amendment imposes the same
prohibition on the states.
61 See Gideon supra note 57.
62 Mathews v. Eldridge, 424 U.S. 319 (1976).
63 See Complaint, Franco-Gonzalez v. Holder, supra note 5 at ¶ 126.
64 United States v. Agronics, Inc., 164 F.3d 1343 (10th Cir. N.M. 1999).
65 Smith v. United States, 250 F. Supp. 803, 806 (D.N.J. 1966), holding that the right to
counsel in administrative proceedings is a statutory right, not a constitutional right.
66 5 U.S.C. § 555 (1993).
67 Agronics, supra note 67; See also Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.
1998); Colandres-Aguilar v. INS, 819 F.2d 259, 261 (9th Cir. 1987), holding that in a
deportation hearing, “[p]etitioner’s right to counsel is a statutory right granted by Congress
under 8 U.S.C. §1362, and it is a right protected by the fifth amendment due process
requirement of a full and fair hearing.”
68 United States v. Mandycz, 199 F.Supp. 2d 671, 675 (E.D. Mich. 2002).
69 Nee Hao Wong v. Immigration & Naturalization Service, 550 F.2d 521, 523 (9th Cir.
1977).
70 Id.
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Providing legal counsel for the Gonzalez Six would benefit them. For
example, Aleksandr Khukhryanskiy suffers from paranoid schizophrenia
and depression.71 He believes that he is being brainwashed by the United
States government, and this delusion impairs his ability to recall his past.72
Khukhryanskiy’s mental illness impedes his ability to assist his counsel
(had one been retained for him).73 “Khukhryanskiy is indigent and unable
to find pro bono counsel. Should counsel be appointed for Mr.
Khukhryanskiy, counsel could assist him in making critical legal and
tactical decisions about his case that he appears presently unable to make
on account of his mental illnesses.”74 Counsel could establish his client’s
eligibility for refugee adjustment and for a waiver allowing him to contest
deportation based on his criminal conviction.75
Due process is, unfortunately, absent for detained individuals with
mental disabilities. For Franco-Gonzalez, a psychiatrist noted that he “had
no clue as to what type of court Your Honor presided over, what the
possible outcomes might be, or how to defend himself at trial. . . . In view
of this, it is impossible for him to stand trial.” Thus, the immigration judge
ordered the administrative closure of Franco-Gonzalez’s removal
proceedings. Yet, Franco-Gonzalez was detained for four and a half years
for his next hearing. No explanation was given for the length of detention.
Despite his incompetence, Franco-Gonzalez was unable to obtain legal
counsel. This violated his due process rights.
IV. INTERNATIONAL LAW AND THE RIGHTS OF DETAINED
IMMIGRANTS WITH MENTAL DISABILITIES
A. Inter-American Commissions on Human Rights’
Conclusions Regarding Deportation Proceedings
The state of affairs in ICE proceedings contravenes the requirements
of Article 13 of the International Covenant on Civil and Political Rights,
which states that an immigrant in the territory of another state party to the
covenant may be deported if that person violates the state’s laws, but
requires the person be able to submit reasons against deportation, and to
have a competent authority review the claim.76 The United Nations Human
Rights Committee has interpreted Article 13 to cover noncitizens seeking
to challenge a deportation order.77 Further, the committee said:
If the legality of an alien’s entry or stay is in dispute, any decision
on this point leading to his expulsion or deportation ought to be
See Complaint, Franco-Gonzalez v. Holder supra note 5, ¶ 65.
See id.
73 Telephone Interview with Sarah Mehta, Aryeh Neier Fellow, ACLU Human Rights
Watch (27 Oct. 2010).
74 See Complaint, Franco-Gonzalez v. Holder, supra note 5, at ¶ 69.
75 See 8 U.S.C. § 1159 (2005).
76 International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, U.N.
Doc. A/RES/6316 (16 Dec. 1966), art. 13.
77 See U.N. Human Rights Committee (HRC), General Comment No. 15: The Position of
Aliens Under the Covenant, C.C.P.R., U.N. Doc. HRI/GEN/1/Rev. 7 (12 May 2004),
www.unhchr.ch/tbs/doc.nsf/0/ca12c3a4ea8d6c53c1256d500056e56f/$FILE/G0441302.pdf.
71
72
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taken in accordance with article 13. . . . An alien must be given full
facilities for pursuing his remedy against expulsion so that this
right will in all the circumstances of his case be an effective one.78
The Human Rights Committee also states that a detainee should
receive counsel if s/he is unable to afford one.79 As previously mentioned,
detainees do not have a constitutional right to counsel, but the InterAmerican Commission on Human Rights (IACHR) has concluded that
deportation proceedings require an interpretation of due process that is
“as broad as possible.”80 Specifically, the IACHR states that a meaningful
defense is part of due process.81
Furthermore, the IACHR has interpreted the American Declaration of
the Rights and Duties of Man (American Declaration), applicable to the
United States as a member of the Organization of American States, to
mean that a state’s failure to provide an adequate and effective remedy of a
fundamental right under the American Declaration violates international
law.82 The American Declaration requires that any person accused of an
offense must receive an impartial hearing. 83 The IACHR has recently
observed that deportation requires the application of “heightened due
process protections” and warns that the current deportation system in the
United States fails to offer detainees “an effective remedy . . . to preserve
their fundamental rights.”84
B. United Nations Convention on the Rights of Persons with
Disabilities
The United Nations Convention on the Rights of Persons with
Disabilities (CRPD) recognizes people with disabilities as “those who have
long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.”85 The CRPD, signed
by the United States in 2009, requires that individuals with mental
disabilities not be “deprived of their liberty unlawfully or arbitrarily.”86 The
CRPD recognizes that individuals with mental disabilities may need
additional support in court, and therefore, due process requires that states
See id. ¶¶ 9–10.
Body of Principles for the Protection of All Persons under Any form of Detention or
Imprisonment, G.A. Res. 43/173, ¶ 17.2, U.N. Doc. A/RES/43/173 (9 Dec. 1988),
www.unhcr.org/refworld/docid/3b00f219c.html.
80 Inter-American Commission on Human Rights, Loren Laroye Riebe Star, Jorge
Alberto Baro Guttlein and Rodolgo Izal Elorz v. Mexico, Report No. 49/99, Case 11,610 (13
Apr. 1999).
81 See id.
82 Id. ¶ 244.
83 American Declaration of the Rights and Duties of Man, Organization of American
States, Res. XXX, adopted by the Ninth International Conference of American States (2 May
1948), at art. XXVI, www.oas.org/dil/access_to_information_human_right_American_
Declaration_of_the_Rights_and_Duties_of_Man.pdf.
84 Inter-American Commission on Human Rights, Wayne Smith, Hugo Armendariz, et
al. v. United States, Report No. 81/10, Case No. 12, 562, ¶¶ 63–65 (12 July 2010).
85 See CRPD, supra note 34 at art. 1.
86 See id. at art. 14.
78
79
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parties shall ensure effective access to justice for persons with disabilities on
an equal basis with others in all legal proceedings.87 The CRPD requires
parties to “take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal
capacity.” 88 It also provides for the right to access to the courts so that
individuals with mental disabilities can adequately participate. 89 Without
this access, persons with mental disabilities lack counsel and remain
detained indefinitely. In light of international law, this is both patently
unfair and Kafkaesque.
C. Deportation Proceedings: A Kafkaesque Violation of
International Law
In The Trial, Joseph K. (K.) was arrested without explanation. Had K.
been able to bring a lawsuit against ICE for what happened to him, there is
a good possibility, indeed probability, of a court concluding on the basis of
international law that K.’s rights were violated.90 The IACHR (interpreting
the American Declaration to provide that a state that fails to provide an
adequate and effective remedy of a fundamental right under the American
Declaration violates international law) would most likely find that the
absence of an impartial and public hearing for K. violates the American
Declaration.91 In The Trial, his lawyer told K. the legal proceedings were,
by law, not public.92 As a result, the legal records of the case, and above all
the actual “charge-sheets,” were inaccessible to the accused and his
counsel and he did not know what charges to contest in the first plea.93 An
effective defense was impossible when the charges could only be guessed
from the interrogations.94 Under the Human Rights Committee and the
IACHR, K. would receive free legal assistance if he were unable to afford
counsel; under the United Nations Human Rights Committee’s
interpretation of Article 13, K. would be given the full opportunity to
pursue a remedy against his expulsion; and, under the American
Declaration, K. would have the right to an impartial and public hearing.
The CRPD requires that individuals with mental disabilities not be
“deprived of their liberty unlawfully or arbitrarily.”95 Although K. was not
explicitly labeled with a particular mental disability in The Trial, the legal
process confused K. sufficiently to disable him mentally. Everyone else
involved in the system appeared to have a solid handle on what was
Id. at art. 13.
Id. at art. 12.
89 Id. at art. 12–14.
90 Ironically, Joseph K. would be just as unlikely to succeed against the ICE in an
American courtroom. There are too many barriers to enforcement of his rights given the
political questions doctrine American courts use to avoid ruling on questions where the U.S.
Constitution has committed decision-making on this subject to a coordinate branch of the
federal government; or there are inadequate standards for the court to apply; or the court
feels it is prudent not to interfere. See Marbury v. Madison, 5 U.S. 137 (1803).
91 See Inter-American Commission on Human Rights, supra notes 80, 84.
92 See THE TRIAL, supra note 4 at 115.
93 See id.
94 Id.
95 See CRPD, supra note 34.
87
88
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expected of them in the proceedings, but that clarity was unattainable to K.
As someone suffering from severe confusion akin to a mental disability, K.
was arbitrarily deprived of due process. Nowhere in The Trial does the
state ensure that K. has effective access to justice, just as the Gonzalez Six
were deprived of due process through lack of adequate counsel and fair
policies and procedures.96 Therefore, under the CRPD, K. would benefit
from measures enabling him to adequately participate in the proceedings
against him.
V. THE PARALLEL BETWEEN THE GONZALEZ SIX’S JOURNEY
THROUGH ICE PROCEEDINGS AND JOSEPH K.’S TRAVELS IN
THE TRIAL
A. The Kafkaesque Arrest of Immigrants with Mental
Disabilities
The Gonzalez Six experienced confusion and feelings of helplessness,
as did the main character in The Trial. In his famous opus, Franz Kafka
opens with the unexpected arrest of the protagonist, Joseph K.97 Following
his arrest, K. receives a phone call that a brief inquiry into his case will be
held the following Sunday.98 A location is given, but not a specific time. K.
assumes that 9 a.m. would be an appropriate start time.99
Once K. finds the courtroom, he begins to “dominate” the meeting by
mocking his arrest and asserting it was one giant mistake. 100 To K.’s
dismay, the courtroom is filled with individuals carrying official badges.101
K. has been tricked. He attacks the system while in a room filled with only
officials hostile to him, who pretend to be interested, when in fact they are
amusing themselves with the declarations of an innocent man.102 K. heads
for the door, but before he can exit, the magistrate says: “I merely wanted
to point out that today . . . you have flung away with your own hand all the
advantages which an interrogation invariably confers on an innocent
man.”103 K. calls the audience “scoundrels” and heads out.104
K.’s experience is similar to that of the Gonzalez Six. Just as K. was
unclear why he was arrested, many immigrants with mental disabilities are
confused about the reasons for and length of detention.105 Human Rights
Watch reported that one woman “was unable to understand a single
question asked of her. She stared into space during the interview, shook
her head repeatedly, and rocked nervously in her chair.”106 Human Rights
Watch terminated the interview because it was unclear whether the woman
See HRW, supra note 15 at 47–49, 72–74.
See THE TRIAL, supra note 4 at 1.
98 See id. at 31.
99 See id. at 34.
100 See id. at 40–45.
101 See id. at 47.
102 See id. at 47.
103 See id. at 48.
104 See id.
105 See HRW, supra note 15 at 25.
106 Id.
96
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consented to it.
Deportation proceedings commence after a criminal conviction, yet
individuals with mental disabilities may lack the ability to understand the
collateral consequences of the conviction, which may be a direct result of
the mental disability itself. For example, one of the plaintiffs in FrancoGonzalez v. Holder, Yen Thi-Thanh Nguyen, had a history of
schizophrenia, personality disorder with prominent borderline features,
and epilepsy. 107 Due to the medication she took, she often appeared
noncommunicative and was unable to remember information. Her prior
convictions were directly tied to her mental disorder; she was arrested for
misdemeanor assault charges and violation of no-contact orders, under
which she was prohibited from contact with her primary caretakers,
specifically her father and older sister.108 Nguyen’s medication made her
appear noncommunicative and hindered her memory. 109 Her psychoses
and medication barred her from understanding the effect of her
convictions on her prospects for remaining in the United States.
The Gonzalez Six face similar bewilderment as Joseph K. did when he
was arrested for no apparent reason.110 Just as the Gonzalez Six did not
have the capacity to understand the ICE proceedings against them, K. did
not understand the reasons for his arrest and prosecution.111 It remained a
mystery for K., as well as the Gonzalez Six, to protect himself from a world
that looked upon him as a guilty man for a crime that nobody could
explain.112
B. The Grueling Battle between the “Powerless” and the
Legal System
When K. attempts to gain some knowledge of the law through books in
the law library, he is told: “These books are probably law books, and it is an
essential part of the justice dispensed here that you should be condemned
not only in innocence but also in ignorance.”113 In other words, a person
convicted in the legal system confronting K. shall have no knowledge of the
rules under which they are condemned.114 K. is left in the dark about his
conviction. While not every detained immigrant with a mental disability is
unaware of the reason why they are being detained, their disability poses a
danger that they will not understand the proceedings against them and
cannot assist their counsel. K. learns that even if he speaks with the law
student who he assumes would have some influence over the outcome of
his case, “as a rule, all of [the court’s] cases are foregone conclusions.”115
Rather than innocent until proven guilty, this legal hierarchy
demonstrated to K. that decisions were made prior to any evidence being
See Complaint, Franco-Gonzalez v. Holder, supra note 5 ¶¶ 58–61.
See id.
109 Id.
110 See THE TRIAL, supra note 4 at 1.
111 See id.
112 See, e.g., id. at 45–46.
113 Id. at 50.
114 Id.
115 Id. at 62.
107
108
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offered. K. was guilty until proven innocent, which was indefinitely in the
future.
Stale, suffocating air is the hallmark of The Trial, leaving the accused
powerless and helpless. An usher invites K. to accompany him upstairs to
the law offices.116 K. suddenly feels very tired.117 He asks the usher to lead
him out, but the usher is reluctant to do so.118 K.’s raised voice attracts the
attention of a woman in a nearby office, who asks his business. K. feels
faint and is unable to respond. 119 The woman offers him a chair and
assures him that the stuffy air similarly affects many people on their first
visit to the offices.120 K.’s swoon intensifies to a near-paralysis. The woman
suggests to a smartly dressed man who shares her office—and who turns
out to be the Clerk of Inquiries—that they take K. to the sick room.121 K.
manages to request that they instead help him to the door. He is scarcely
able to walk, even with the two officials half carrying him.122 K. is ashamed
as they pass before another accused man with whom he had been
impatient earlier in the story.123 Once K. leaves,124 the outside air revives
him. 125 Rejuvenated but bewildered by what just happened to him, K.
bounds down the stairs and resolves to find a better use for his Sunday
mornings.126 As this story illustrates, the stale, suffocating interrogation
atmosphere affected K.’s judgment and he is physically incapacitated in the
Offices of the Law.127 He is rendered speechless and powerless, utterly at
the mercy of the court.128 This offers a metaphor for how immigrants with
mental disabilities experience immigration courts. The court is like bad air
in a closed room, and like bad air, the court seems to be everywhere,
invisible, insidious, known only by its effects.
Throughout The Trial, Kafka’s court appears to be everywhere—it sets
up shop in a company’s closet or in a tenement attic—and it conducts its
business in dark, uncomfortable, and inaccessible places. 129 This is not
coincidental, but rather it is an essential characteristic of an impenetrable
and unaccountable bureaucracy. Immigration courts mirror Kafka’s
impenetrable and unaccountable bureaucracy because the law to an
immigrant who is mentally disabled and without counsel is just as
bewildering as it was for Joseph K. 130 There are many pieces to the
immigration law puzzle that only an experienced attorney can navigate.
Thus, immigrants, particularly those with mental disabilities, feel
See id. at 62.
See id. at 66.
118 See id.
119 See id. at 67.
120 See id.
121 See id. at 68.
122 See id. at 70–71.
123 See id. at 72.
124 See id. at 73.
125 See id.
126 See id.
127 See id. at 68–73.
128 See id. at 69.
129 See id. at 65.
130 See Complaint, Franco-Gonzalez v. Holder, supra note 5 at ¶ 85.
116
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suffocated by a system that detains them indefinitely, just as K. felt
suffocated by the bad air of the court.131
VI. STIGMA IMPEDES EQUAL ACCESS TO THE LAW
The stigma of mental illness is a heavy burden for immigrants in ICE
proceedings. To Human Rights Watch, the stigma surrounding mental
illness prevents many individuals from self-identifying due to the fear that
ICE would use their disability to argue for deportation. 132 One man,
Pacifico G., a lawful permanent resident from Mexico with schizophrenia,
admitted he heard voices telling him to harm people. The ICE trial
attorney used this evidence to argue that Pacifico was dangerous and
should be deported even though he had never attempted a violent crime,
and even though he testified that he would never act upon the voices.133
[T]he DA [sic] says that I am 100 percent individually responsible
for my actions. That I am completely accountable for what I do. He
made me sound like I was a murderer or made it look like I was a
potential murderer. That I could kill at any second. . . . The legal
system exposes me as if I am the one to blame, but I don’t think
this is the fact. I did my best for 17 years to be a person under
control and they make it seem like I am a person who cannot
control myself. As if I am a threat to society.134
A. History of the “Insane”135
In the early 19th century, persons with mental illness filled the prisons
of the United States. A reform movement, spearheaded by Dorothea Dix,
led to a more humane treatment of mentally ill persons.136 Dix’s journey
began when she visited a jail in East Cambridge, Massachusetts, to provide
Sunday school instruction to women inmates.137 Dix was shocked by what
she saw: “filth, lack of heat, signs of brutality, and neglect. Especially
troubling to [her] was the presence of insane people locked in cells.”138
This sparked Dix’s advocacy for the removal of mentally ill people to
mental institutions, and she was successful in convincing Congress to pass
the “12,225,000 Acre Bill,”139 which proposed to set aside 12,225,000 acres
of federal land for the benefit of persons with mental and physical
See THE TRIAL, supra note 4 at 123.
See HRW, supra note 15 at 38.
133 See id.
134 See id.
135 This language does not reflect my personal opinion on this particular group, but
rather reflects the historical usage of terms relating to persons with mental disabilities. I am
going to use this terminology for the sake of readability and to enforce that this language is
unavoidably manifest in the history, although these words may be currently offensive.
136 Treatment Advocacy Center, MORE MENTALLY ILL PERSONS ARE IN JAIL AND PRISONS
THAN IN HOSPITALS: A SURVEY OF THE STATES, 4, www.treatmentadvocacycenter.org/
storage/tac/documents/final_jails_v_hospitals_study.pdf.
137 Steve Taylor, ACTS OF CONSCIENCE: WORLD WAR II, MENTAL INSTITUTIONS, AND
RELIGIOUS OBJECTORS, 155 (2009).
138 See id.
139 Id. at 158.
131
132
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disabilities.140 However, President Pierce vetoed the act, characterizing the
bill as an “unwarranted federal intrusion on state affairs.”141 As head of
women nurses for the Union Army, Dix resumed her efforts on behalf of
the mentally ill after the Civil War ended. While the federal government
failed to fund care for the “indigent, insane and idiotic,” Dix’s efforts
ultimately led the states to assume responsibility for caring for people with
mental illness by establishing specialized hospitals and asylums.142
For over 100 years, mentally ill individuals were treated in hospitals
and asylums. 143 The United States has replicated the 19th century by
warehousing mentally ill persons in jails and prisons instead of psychiatric
institutions.144 A widely publicized study done by the U.S. Department of
Justice in 1998 reported that 16.3 percent of inmates in jails and 16.2
percent in state prisons were “estimated to be mentally ill,” based on the
self-report of symptoms or of having been admitted to a psychiatric
hospital.145 Based on interviews and visits to state and federal prisons in
2003, Human Rights Watch estimated that approximately 20 percent of
the prisoners were seriously mentally ill. A 2006 Department of Justice
survey, based on a selected sampling of inmates, reported that 24 percent
of jail inmates and 15 percent of state prison inmates “reported at least one
symptom of a psychotic disorder.” The mentally ill individuals in prisons
were there an average of 15 months longer than other inmates.146 With the
number of persons with mental illness rising, our jails are becoming the
new mental institutions. 147
In the United States in 2004, there were 100,439 psychiatric beds
available in public and private psychiatric hospitals and in the psychiatric
units of general hospitals.148 Since the population of the country is over
300 million, that means that there is approximately one psychiatric bed
available for every 3,000 people.149 This contrasts with the situation in the
United States in 1955, when there was one psychiatric bed available for
every 300 people.150 Thus, an individual with a serious mental illness was
10 times more likely to find a psychiatric bed for treatment in 1955 than in
2004.151 Mental illness is not a problem that is vanishing into thin air;
rather, the mentally ill population is now being pushed from one
institution (psychiatric hospitals) into another (jails and prisons). As one
advocate put it: “Although a government’s expressed intent may be to take
care of its citizens with disabilities, the conditions and treatment to which
Francis Tiffany, LIFE OF DOROTHEA LYNDE DIX, 180 (1890).
See Taylor, supra note 137 at 158.
142 See id.
143 See Treatment Advocacy Center, supra note 136 at 108.
144 See id.
145 P. M. Ditton, Bureau of Justice Statistics Special Report, MENTAL HEALTH AND
TREATMENT OF INMATES AND PROBATIONERS (1999).
146 See Treatment Advocacy Center, supra note 136 at 6; see also Allan Tasman, STIGMA
AND MENTAL ILLNESS, 2 (1992).
147 See id. at 8.
148 See id. at 8.
149 Id.
150 Id.
151 Id.
140
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THE KAFKAESQUE EXPERIENCE OF IMMIGRANTS
161
they are subjected may constitute persecution.” 152 This has negative
ramifications for ICE proceedings where a number of immigrants are
mentally ill or disabled.
The mentally ill have historically been perceived as animals that need
to be caged and locked away. Despite the disability rights movement, the
passage of Section 504 of the Rehabilitation Act of 1973, the Americans
with Disabilities Act in 1990, and the narratives of many public figures
disclosing their struggles with mental illness, a dark shadow still falls over
mental illness. “Shame” is a problem for those who are mentally ill because
it creates a false perception of one’s own attributes based on disability.153
Shame, whether in The Trial or in an ICE proceeding, becomes a
regulatory tool that reinforces the inferiority of immigrants with mental
disabilities and acts to prevent them from either seeking help or aiding
their counsel.
B. Stigma
K. visits the painter in the hopes that he would have helpful
information for K. in representing himself in court. 154 The painter
describes three possible acquittals based on a person maintaining good
relations with subordinate officials in hopes that they may support the
accused in his or her case, which is frustrating because nobody knows who
these officials are.155 The higher officials are unreachable, so supplication
and influence-peddling go through lower officials. Yet, as the painter
makes clear, the chances of acquittal are low.156 Another victim of the legal
process mentions the “great lawyers,” about whom every accused man
dreams, but who are entirely inaccessible and unknown. 157 No one can
really influence the outcome of the case—at most they can tinker with the
trajectory, to drag out the proceedings indefinitely while the mantle of guilt
hovers above the accused.158
The mantle of guilt hovers over K. throughout the entire book.159 When
K.’s uncle visits him to discuss K.’s guilt, he asserts that K. should not leave
the country because “it would look like flight and therefore guilt.”160 This
assertion emphasizes K.’s internal belief that he is guilty and is not part of
normal society. Furthermore, when K. visits the tradesman, the tradesman
tells him that people are too tired and distracted to think clearly about the
proceedings and so they take refuge in superstition. 161 One of the
superstitions is that you are supposed to be able to tell from a man’s face,
152 Arlene Kanter, The Right to Asylum and Need for Legal Representation of People
with Mental Disabilities in Immigration Proceedings, 25 MENTAL AND PHYSICAL DISABILITY
LAW REPORTER 511 (2001).
153 Erving Goffman, STIGMA AND SOCIAL IDENTITY (1963), http://courses.washington.
edu/intro2ds/Readings/7_Goffman-stigma.doc (last visited 9 Mar. 2011).
154 See THE TRIAL, supra note 4 at 136.
155 See id. at 154–155.
156 See id. at 158–159.
157 See id. at 178.
158 See id. at 158 (emphasis added).
159 Id. at 116.
160 See id. at 97.
161 See id. at 174.
162
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especially the line of his lips, how his case is going to turn out.162 Although
this judgment is unfounded and has no valid backing, the tradesman states:
“If you live among these people, it’s difficult to escape the prevailing
opinion.”163 For K., the prevailing opinion is towards a presumption of guilt.
The stigma attached to a guilty person in The Trial directly parallels the
stigma attached to persons with mental disabilities like the Gonzalez Six.
1. Mental illness in our society
According to Clifford Beers, founder of the American Mental Hygiene
movement:
[T]his childish fear [of the mentally ill] is a sublime mental process
compared with the unreasoning dread of insanity that prevails in
the minds of most adults throughout the civilized world. Under
certain conditions an insane person is, without doubt, the
unhappiest of men, but . . . he is indeed happier—than a sane
person under the most favorable conditions.164
Beers argues that the unhappiness of a person with mental illness is
linked to the lack of consideration with which they are treated.165 Stigma
among persons with mental disabilities is very common; it may originally
have derived from the idea that mental illness stems from a possessive
demon. 166 People find it difficult to accept behavior deviating from the
norm, and often assume that a person with a mental disability is
dangerous.167 Human Rights Watch found the stigma of mental disability is
highly prevalent in the courtroom.168 For example, a detained man who
suffered post-traumatic stress disorder from a sexual assault he endured as
a prisoner of war in Afghanistan showed great difficulty testifying about
his mental disability not only because he did not want to relive the
experience, but because “[f]or a lot of people, left to themselves, they
wouldn’t have the will or the ability to face these things.”169
Psychiatrist and author Allan Tasman describes what stigma means to
a person with mental illness:
See id.
See id. at 174.
164 Clifford W. Beers, A MIND THAT FOUND ITSELF: AN AUTOBIOGRAPHY ¶ 35 (1910),
www.disabilitymuseum.org/lib/docs/1672.htm?page=print.
165 See Taylor, supra note 137 at 153, describing when Beers reflected on the kind of book
he wanted to write “Uncle Tom’s Cabin . . . had a very decided effect on the question of slavery
of the Negro race. Why cannot a book be written which will free the helpless slaves of all
creeds and colors confined today in the asylums and sanitariums throughout the world? That
is, free them from unnecessary abuses to which they are now subjected.” (Emphasis added.)
166 See Elyn Saks, Why is Mental Illness so Stigmatized, THE HUFFINGTON POST, 19 Jan.
2011, www.huffingtonpost.com/elyn-saks/post_1603_b_811249.html.
167 Allan Tasman, STIGMA AND MENTAL ILLNESS, 2 (Paul J. Fink, ed., 1992); see also, e.g.,
Henry Steadman, Violence by People Discharged from Acute Psychiatric Inpatient Facilities
and by Others in the Same Neighborhoods, 55, 5 GEN. PSYCHIATRY 393–401 (1998) (study of
nearly 1,200 people proved that persons with mental illness are no more dangerous than
those without mental illness).
168 See HRW, supra note 15 at 36.
169 See id.
162
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163
[S]tigma means fear, resulting in lack of confidence. Stigma is loss
resulting in unresolved mourning issues. Stigma is not having
access to resources, resulting in lack of useful coping skills. Stigma
is being reviled, resulting in conflicts regarding being seen. Stigma
is lowered family esteem and intense shame, resulting in
decreased self worth. Stigma is secrecy resulting in lack of
understanding. Stigma is judgment resulting in lack of
spontaneity. Stigma is divisive, resulting in distrust of others.
Stigma is anger resulting in distance. More importantly, stigma is
hopelessness resulting in helplessness.170
2. Legal consequences of stigma
Sarah Mehta of Human Rights Watch reported the legal consequences
that stigma may have on a mentally disabled person in immigration
proceedings.171 According to Mehta, stigma may prevent individuals from
self-identifying in a detention facility or immigration court.172 For example,
a legal permanent resident, Jorge, who has a cognitive disability, faced
deportation for driving without a license, drug possession, and violation of
probation.173 Jorge did not have a lawyer during his immigration hearings,
and the immigration judge never questioned his cognitive disability.
However, Jorge was reluctant to reveal his disability to the court. “He
didn’t want to tell the court about the issue that has hurt him his entire life.
The last thing he wants to tell the judge is that there is something wrong
with him, even though that is the one thing that might have helped.”174
Fortunately, Jorge found an attorney to represent him on appeal, and his
attorney was able to get him a psychiatric evaluation.
Stigma affects not only detained immigrants with mental disabilities,
but also American citizens. For example, Pedro Guzman, a California man
with a mental disability,175 was picked up by ICE and mistakenly deported
to Mexico, where he wandered for three months before being returned to
his family.176 Unable to adequately communicate his needs, the fear and
stigma associated with mental illness led to the unsound deportation of
this American citizen.
Some individuals are afraid that disclosing their mental disabilities
may have repercussions for their legal claims. In a Human Rights Watch
interview with the executive director of the Mental Health Advocacy
Services, James Preis said: “Sharing information is important to get good
services but there needs [sic] to be protections so that information doesn’t
170 Peter Byrne, Stigma of Mental Illness and Ways of Diminishing It, 6 ADVANCES IN
PSYCHIATRIC TREATMENT 65 (2000), http://apt.rcpsych.org/cgi/content/full/6/1/65 (quoting
what stigma means according to Fink & Tasman, 1992) (emphasis added).
171 See HRW, supra note 15 at 36–39.
172 Id. at 36.
173 Id. at 37.
174 Id. at 38.
175
Editorial, Detention and the Disabled, N.Y. TIMES (30 July 2010),
www.nytimes.com/2010/07/31/opinion/31sat3.html?pagewanted=print.
176
See Daniel Hernandez, Pedro Guzman’s Return, LA WEEKLY NEWS,
WWW.LAWEEKLY.COM/2007-08-09/NEWS/PEDRO-GUZMAN-S-RETURN/.
164
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get misused in violation of due process.”177 The system does not protect
medical information if someone discloses a mental illness. There is no
mechanism to separate its use for treatment purposes from how it is used
in court. “Since ICE oversees both the detention and prosecution of noncitizens accused of immigration violations, there is a real danger that
medical information can be used against a detainee.” 178 What is more
Kafkaesque than this state of affairs?
C. Joseph K. and the Gonzalez Six: Indefinitely Denied
Access to the Law
An influential Italian client is coming to town, and K. has been charged
with escorting the man to the city’s cultural points of interest.179 K. receives
a message to meet the Italian at the cathedral at ten o’clock.180 As K. waits
in the cathedral, he notices a preacher climb up to the pulpit and thinks
that this is a strange time for a sermon.181 In fact, the preacher is actually
the prison chaplain who has summoned K.182 K. tells the chaplain that he
feels he can speak openly to him, unlike anyone else associated with the
court.183 The chaplain explains how such an assertion is actually deluded
by way of an allegory in a brief tale:
Before the Law stands a doorkeeper. To this doorkeeper there
comes a man from the country who begs for admittance to the
Law. But the doorkeeper says that he cannot admit the man at the
moment. . . . The doorkeeper says: “if you are so strongly tempted,
try to get in without my permission. But note that I am powerful.
And I am only the lowest doorkeeper. From hall to hall, keepers
stand at every door, one more powerful than the other.” These are
difficulties which the man from the country has not expected to
meet, the Law, he thinks, should be accessible to every man and at
all times, but when he looks more closely at the doorkeeper in his
furred robe, with his huge, pointed hose and long, thin, beard, he
decides that he had better wait until he gets permission to enter.184
Just as the man strived to attain the Law, so too do detained
immigrants with mental disabilities strive to attain their freedom from ICE
proceedings.
VII. RECOMMENDATIONS FOR CHANGE IN THE CURRENT
IMMIGRATION SYSTEM
The INA provides for the statutory right to counsel in removal
See HRW, supra note 17 at 39.
See id.
179 See THE TRIAL, supra note 4 at 197.
180 See id. at 203.
181 See id. at 207.
182 See id. at 209.
183 See id. at 213.
184 See id. at 213.
177
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165
proceedings by counsel of the respondent’s choosing.185 However, persons
who are incompetent may not be capable of exercising their right to choose
counsel.186 Thus, in order to satisfy the statutory duty to protect the rights
and privileges of immigrants with mental health issues, the attorney
general should appoint a guardian to represent the applicant in a removal
proceeding.187 It is “a denial of due process to hold proceedings to deport
an unrepresented [incompetent individual] incapable of representing
herself.”188 Future action should involve preliminarily enjoining execution
of deportation order, and ordering an appointment of a guardian ad litem
to represent incompetent defendants in further proceedings.189 Professor
Arlene Kanter suggests that the INS, the EOIR, and pro bono immigration
groups should establish training for these officials.190 Such training will
improve the likelihood that the treatment needs of these individuals will be
met and the conditions of their confinement will be improved.191
To ensure fair immigration proceedings for people with mental
disabilities, Human Rights Watch developed a list of recommendations for
the U.S. Congress, the Department of Justice, the U.S. Citizenship and
Immigration Services, ICE, and EOIR. 192 Such recommendations range
from “amend[ing] INA to provide immigrations judges with authority to
terminate proceedings in cases where the severity of a person’s mental
disability makes ensuring fair proceedings impossible,”193 to conducting
periodic mental health screening and evaluations in immigration detention
facilities. 194 Reforms in current immigration proceedings could
substantially improve both the fundamental fairness and the efficiency of
removal proceedings—proceedings that can result “in loss of both property
and life, or of all that makes life worth living.”195 While a different judge
may yield a different outcome, or a stronger defense attorney may result in
a stay of deportation, the stakes in immigration deportation proceedings
are so high that the immigration system should not leave such serious
issues to speculative chance.196 Over the years, the criminal justice system
has recognized the need for alternatives to incarceration for particular
types of defendants where incarceration may not be the proper form of
retribution (i.e., drug courts, juvenile courts, diversion programs, and
8 C.F.R. §§292.5(b), 316(b) (2001).
8 C.F.R. §240(b)(3) (2001) (codified at 8 U.S.C. §1229(b)(3) (2001) (stating “if it is
impracticable by reason of an alien’s mental incompetency for the alien to be present at the
proceeding, the Attorney General shall prescribe safeguards to protect the rights and
privileges of the alien”).
187 See Kanter, supra note 154.
188 Nelson v. INS, 232 F.3d 258, 261-62 (1st Cir. 2000); Johns v. Dep’t. of Justice of
United States, 624 F.2d 522, 524 (5th Cir. 1980).
189 See id.
190 See Kanter, supra note 154.
191 See id.
192 See HRW, supra note 15 at 82–86.
193 Id. at 82.
194 Id. at 84.
195 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
196 See Bill Ong Hing, Don’t Deport Immigrants with Mental Disabilities, THE
HUFFINGTON POST, 28 Apr. 2011, www.huffingtonpost.com/bill-ong-hing/immigrantsmental-disabilities_b_852699.html.
185
186
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community service programs).197 The criminal courts have recognized that
sometimes a different option is necessary for the defendant as well as the
community. Immigration judges only have two choices: to deport or to stay
lawfully.198 Therefore, the immigration judge may feel compelled to err on
the side of deportation when faced with a “criminal alien” with mental
illness.199 This untenable world has no place in American jurisprudence.
VIII. CONCLUSION
Fyodor Dostoyevsky once said: “The degree of civilization of a society
can be judged by entering its prisons.”200 To Dostoyevsky, prison served as
a window into the soul of a society. Similarly, ICE proceedings mirror the
soul of our society. The lack of rights for immigrants with mental
disabilities should not be the hallmark of American homeland security. If
we believe in the rule of law, and if the United States is in touch with
common principles of humanity, then what happened with the Gonzalez
Six and hundreds of other immigrants with mental disabilities should
“shock [our] conscience.”201 Convictions cannot be brought by measures
that “offend a sense of justice.”202 It is totally irresponsible and unfair for
the court in Franco-Gonzalez to detain immigrants with mental disabilities
without procedural due process of law. 203 Human Rights Watch has
addressed the problem, and it is now up to lawyers, judges, politicians, and
all those concerned about human rights, justice, and fairness to press for
radical reform of how ICE treats detained immigrants with mental
disabilities.
Sadly, for now, the Gonzalez Six remain in detention not knowing what
is to come down the road, just as Joseph K. wandered in great confusion
through his own legal proceedings.
See id.
Id.
199 See id.
200 Fyodor Dostoyevsky, HOUSE OF THE DEAD (Paul Nigri, ed., Dover Publications, 2004)
(1915).
201 Rochin v. California, 342 U.S. 165, 172 (1952).
202 Id., at 173.
203 Id.
197
198