Asylum & Detention

The health of my patient shall be my first consideration

— World Medical Association (WMA) Declaration of Geneva

A physician shall owe his patients complete loyalty and all the resources of his science.

— WMA International Code of Medical Ethics

Although these principles are grounded unmistakably in both ancient and modern texts across the globe, there is growing recognition that doctors are too often placed in situations where it is difficult for them to fulfill loyalty obligations to their patients.  Opposing and competing obligations to third parties, such as employers, governments, and insurers, often test the devotion that health professionals are required to give to their patients.  Such conflicts are generally identified as “dual loyalty” issues because the health professional is torn between two different players which often have different or competing aims and objectives.  In many cases, health professionals who succumb to the pressure to fulfill third party needs at the expense of their patients needs end up violating the human rights of the very person who is entitled to the health professional’s strongest loyalty.

An army doctor is charged with managing the care and well-being of a unit under enemy attack. Although all doctors, including military doctors, are required to treat the health of their patients as their primary concern, the battlefield commander places immense pressure on the doctor to return men to combat before they are mentally and/or physically fit. The doctor recognizes that many of the men are still suffering from painful and debilitating wounds as well as PTSD, but he fears that keeping them from battle could jeopardize the safety and survival of the entire unit because the enemy is numerous. The doctor is unsure of whether to abide by his loyalty obligation to provide the best possible care to his patient or to obey the orders of his military commander, who represents both his employer and the government.

Closed environments, such as prisons, jails, detention centers, mental health facilities, and the military, are the most susceptible to breeding dual loyalty conflicts because security concerns tend to run high while transparency and monitoring mechanisms are generally lacking or altogether absent. Additionally, there is often ambiguity, sometime deliberately, about the health professional’s role in closed institutions. Health professionals working in these environments often find it difficult to provide the best possible care for their patients because they feel pressure to participate in institutional security, cost cutting, and helping to meet other institutional objectives.

The loyalty conflicts resulting from third party pressure may be express (e.g. the military commander orders the doctor to clear patients for battle) or implied (the commander frequently reminds the doctors that the enemy outnumbers them), and they may be real (the commander is indeed putting pressure on the doctor), or perceived (the doctor feels it is his responsibility to get the soldiers back on the battleground, even though the commander has not communicated with him at all).  However, regardless of the form the pressure takes, and even if it is only perceived to be real by the doctor, it still has the potential to distract him from providing the best possible care to his patients.  Situations like the one described above frequently draw health professionals into a moral and ethical maelstrom, where they end up second-guessing what they know to be their first and primary duty: giving patients the best possible care.

The health of my patient shall be my first consideration — World Medical Association (WMA) Declaration of Geneva A physician shall owe his patients complete loyalty and all the resources of his science. — WMA International Code of Medical Ethics … Continue reading →

The Immigration Oversight and Fairness Act

The Immigration Oversight and Fairness Act (H.R. 933) is a bill that would stop the worst abuses that occur in the immigration detention system. Each night, the Department of Homeland Security (DHS) holds tens of thousands of immigrants in a patchwork network of jails, prisons, and detention centers around the country. Inmates include asylum seekers, survivors of domestic violence and torture, and people with severe physical and mental illnesses. The health and well-being of these vulnerable immigrants suffers due to inadequate resources to address their needs and inappropriately harsh, punitive treatment in detention centers.

Improvements in Medical Care

The Immigration Oversight and Fairness Act would protect the health of detained immigrants by ensuring that the care they receive meets high quality and ethical standards, and is subject to rigorous, independent oversight. It would require all facilities to maintain accreditation by the National Commission on Correctional Health Care and the Joint Commission on the Accreditation of Health Care Organizations. Common-sense procedures to guarantee good medical decision-making would become standard practice in the detention system: for example, the medical and mental health screenings which are, at present, sometimes performed by immigration enforcement officers would become the exclusive domain of trained health professionals. Strong informed consent protections in the Act would safeguard against troubling incidents that have occurred in the past, like administration of involuntary psychotropic medication to non-dangerous detainees with no history of mental illness.

Prevention of Sexual Assault

Because of fear of deportation, linguistic and cultural barriers, and personal histories of victimization, immigrants are at heightened risk for sexual abuse in detention, and are less likely than other incarcerated persons to report incidents of abuse to facility staff. In spite of this, the Department of Justice recently indicated that the preventive and responsive measures set forth in the Prison Rape Elimination Act (PREA) of 2003 are not required of immigration detention centers. The Immigration Oversight and Fairness Act would step into this void and direct detention facilities to follow PREA, and to provide comprehensive counseling and medical services to immigrant victims of abuse.

Recognition of Immigrants’ Humanity and Dignity

The Immigration Oversight and Fairness Act would make a strong statement in support of the right of detainees to be treated with basic dignity. It would require DHS to write new laws preventing cruel and degrading treatment of detainees, and placing strict limitations on the use of shackling and handcuffing, tasers, restraint chairs, solitary confinement, and similar control techniques.

The Act would also

• Guarantee that detainees can effectively file grievances and are not retaliated against for expressing their concerns;
• Protect detainees’ access to the people and resources they need to manage their immigration cases; and
• Create a strong preference for releasing particularly vulnerable immigrants into community monitoring programs rather than incarcerating them in prison-like detention centers.

The Immigration Oversight and Fairness Act amassed 66 co-sponsors during the Congressional session that ended in December 2010 but has only been endorsed by three lawmakers thus far in the current session: Rep. Lucille Roybal-Allard of California, Rep. Jared Polis of Colorado, and Rep. Barney Frank of Massachusetts.  Please ask your Representative to join these three in standing up for basic fairness and decent conditions in immigration detention!

The Immigration Oversight and Fairness Act The Immigration Oversight and Fairness Act (H.R. 933) is a bill that would stop the worst abuses that occur in the immigration detention system. Each night, the Department of Homeland Security (DHS) holds tens … Continue reading →

Ways you can get involved with asylum and detention:

• Education and Advocacy for Asylum and Detention [1]
• Using Your Medical Expertise for Human Rights [2]

Ways you can get involved with asylum and detention: Education and Advocacy for Asylum and Detention Using Your Medical Expertise for Human Rights

Inappropriate Use of Segregation to Treat Mental Health Issues in Detention

Unfortunately, a very high proportion of immigration detainees suffer from some form of mental illness, including a range of conditions from to schizophrenia to bipolar disorder, while many others have developmental disabilities, such as Down Syndrome. Although Immigration and Customs Enforcement (ICE) fails to maintain meaningful statistics on the exact number of detainees with mental health issues, it is estimated that at least fifteen percent may have a mental illness[1]. Many of these cases are overlooked, ignored, or inadequately treated, as health professionals working in the rapidly-expanding immigration detention system struggle to provide medical services to their growing caseload. Several recent reports by NGOs have documented the manifest flaws that exist in ICE protocol and practice for treating mentally ill and disabled people in immigration detention, but human rights violations continue to occur on a daily basis to this vulnerable, hidden population for two principle reasons: 1) most detention center staff are inadequately trained to deal with people with mental disabilities, and 2) these detainees are generally unable or afraid to advocate for themselves.

A well-known metaphor posits that “the squeaky wheel gets the grease”, but immigration detainees are well aware that “the squeaky wheel” in detention is far more likely to get segregation[2] as a punishment than to receive positive attention from security or medical staff.  Detainees who complain or act out due to mental conditions beyond their control are frequently sent to segregation units or held down in restraints because staff is unable or unwilling to help them control their behavior. In many cases, security or even medical staff send mentally disabled people to solitary confinement for prolonged periods of time, where they deteriorate without access to mental health professionals or even to other detainees.

A detainee who was held in a Texas detention center for nine months, more than half of that time spent in solitary confinement, explains the horror he felt in segregation: “When they put you in ‘el pozo’ [the hole or solitary confinement] you only have a little space.  You have a toilet and a little space where you can sleep.  And there is a little place where they put the food, but they throw it without caring.  If you don’t take it rapidly, they throw it, whether it is hot or cold.  They don’t care.  They throw it as if you were an animal.  It makes you lose control mentally.  That is why I did not come out so well, mentally.  I would lose my mind – I would lose my mind severely.  I even wanted to commit suicide.”[3]

Health professionals should always try to implement the least restrictive measures necessary to control a patient’s behavior, and assignment to a segregation unit is not appropriate in the absence of a therapeutic goal (related to time spent in segregation) for the patient.  Sending detainees to segregation is not meant to be a solution for dealing with troublesome patients, but reports from NGOs have affirmed that this occurs far too frequently in understaffed and undertrained detention centers across the country – segregation has even been used as a punitive measure for detainees with mental health issues.  Obviously, the punitive use of segregation creates a significant disincentive for detainees to seek help for mental health issues, and it widens the chasm between the patients and health professionals working in detention settings.  Furthermore, it effectively silences any questions or concerns that detainees might wish to raise in regard to their human rights. Even more serious, however, is that the use of segregation on people who have suffered torture and other grave human rights abuses severely exacerbates the mental anguish they feel on a daily basis, particularly if placement in solitary confinement was part of their torture experience.  Therefore, reintroduction of this devastating method of control, this time at the hands of US detention center staff, frequently re-awakens their trauma and serves to greatly worsen their mental health issues.

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[1] [1] Justice for Immigration’s Hidden Population. p.11. [2]

[2] [3] There is a great deal of variance in the terminology dealing with this issue.  Clinicians and security staff use the terms “segregation”, “isolation”, “seclusion” and “solitary confinement” to describe the situation where a detainee is placed alone in a small cell for 23 hours per day, separated from other people, and frequently in the dark.  This scenario may be distinguished from “administrative segregation” (when detainees may be temporarily separated to prevent them from collaborating) or “medical isolation” (when a detainee is physically separated from the rest of the population because he has a contagious disease, but is kept in a glass-walled room so that he can continue to have human interaction).

[3] [4] Justice for Immigration’s Hidden Population. p.22 [5].

Inappropriate Use of Segregation to Treat Mental Health Issues in Detention Unfortunately, a very high proportion of immigration detainees suffer from some form of mental illness, including a range of conditions from to schizophrenia to bipolar disorder, while many others … Continue reading →

PHR

From Persecution to Prison [4]

Examining Asylum Seekers [3]

Leave No Marks [2]

Dual Loyalty and Human Rights (forthcoming)

Health Stories (forthcoming)

PHR’s Asylum blog series [1]

PHR’s Custody blog series [5]

US Government Reports

Immigration Detention Overview and Recommendations [6], Dr. Dora Schriro, DHS Office of the Inspector General

The US ICE Process for Authorizing Medical Care for Immigration Detainees (Dec 2009) [10], US Immigration and Customs Enforcement

Non-Governmental Organizations

US Detention of Asylum Seekers: Seeking Protection, Finding Prison [9], Human Rights First

Denial and Delay: The Impact of the Immigration Law’s ‘Terrorism Bars’ on Asylum Seekers and Refugees in the United States (2009) [8], Human Rights First

Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System [7], Human Rights Watch

Justice for Immigration’s Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and Detention System [11], Texas Appleseed

PHR From Persecution to Prison Examining Asylum Seekers Leave No Marks Dual Loyalty and Human Rights (forthcoming) Health Stories (forthcoming) PHR’s Asylum blog series PHR’s Custody blog series US Government Reports Immigration Detention Overview and Recommendations, Dr. Dora Schriro, DHS Office of … Continue reading →

All health professionals are required to treat any individual in need of medical assistance, regardless of the patient’s background or identity. This standard, known as medical neutrality, adheres to the guidelines of the Geneva Conventions, and is widely respected by international medical organizations. However, US immigration policy does not respect medical neutrality for health professionals seeking asylum within the US. Under current policy, immigration officials can deny asylum to any health professional that has previously treated any individual considered to be part of a terrorist organization. This is known as the “material support to terrorism” exclusion ground, and can result in permanent ineligibility for asylum or any form of legal status in the US.

In the past decade, the US government has expanded its definition of a terrorist organization; many groups that were not previously considered terrorist organizations now fall into this category, including groups who have collaborated with the US in civil conflicts. Definitions of “providing material support” have also expanded, and include offering food, having property stolen at gun point, or providing urgently needed medical care to any member of an alleged terrorist organization.

Consider the story of B.T., a Nepalese nurse who spent several years waiting for a decision on his asylum petition because he was forced to provide health care to rebel forces. In Nepal, B.T. was kidnapped twice by Maoist rebels, led blindfolded to their hideout, and forced at gunpoint to provide care to guerillas suffering from burns and gunshot wounds. B.T. chose to treat the rebels rather than be executed by them.

The Nepalese army then arrested him on two occasions under the accusation that he supported Maoist rebels. While in jail in Nepal, government soldiers beat B.T. with sticks and the butt of a gun, put pins in his fingertips, cut his fingers and hands with knives, and threatened to kill him. He decided to seek protection in the US.

Eventually, B.T. was able to secure a tourist visa to the U.S. and was granted asylum upon his arrival. However, the Department of Homeland Security appealed to revoke his asylum status, alleging that the health care he had provided to the Maoist rebels constituted material support to a terrorist group. For several years, B.T. was separated from his wife and children while he awaited a decision on his case.

While in some circumstances health professionals are forced to provide care under duress, others act voluntarily in accordance with their duty and commitment to treat any individual in need of medical care. Health professionals who have acted in the best interest of their patients should not be denied asylum or refugee status and forced to return to their countries of origin where they face persecution, torture, or death. PHR urges the United States to restore its respect for medical neutrality and to end the denial of asylum and other legal status to persecuted health professionals.

All health professionals are required to treat any individual in need of medical assistance, regardless of the patient’s background or identity. This standard, known as medical neutrality, adheres to the guidelines of the Geneva Conventions, and is widely respected by … Continue reading →

Classification of Status

Asylum Seeker

Persons already in the United States may seek asylum if they are unable or unwilling to return to their home country due to persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.  Those granted asylum are able to live and work in the United States.  One year after the granting of asylum they may apply for permanent resident status.

Refugee

Refugee status may be requested by persons outside the United States who are unable or unwilling to return to their home country due to persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.  Typically a person must already be outside their home country to be eligible for refugee status, although a few exceptions apply. Each year the United States resettles a limited number of refugees based on specifications made by the United States government or referrals made by the United Nations High Commissioner on Refugees (UNHCR) or a U.S. Embassy.

Legislation

The Detainee Treatment Act of 2005 (DTA)

Part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863), the Act prohibits the “cruel, inhuman, or degrading treatment or punishment” (acts that violate the Fifth, Eighth, and Fourteenth Amendments) of detainees and provides for “uniform standards” for interrogation (it limits the military to interrogation techniques authorized by the Army Field Manual). The Act also removed the federal courts’ jurisdiction over detainees seeking to challenge the legality of their detention, stating that “no court, justice or judge shall have jurisdiction to hear or consider” applications on behalf of Guantanamo detainees.

Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America

The Supreme Court has stated that the protection of human dignity is a primary function of the Fifth, Eighth and Fourteenth Amendments, and that violations of “human dignity” can be unconstitutional even absent any pain or injury. The Supreme Court has long considered prisoner treatment to violate the Fifth and Fourteenth Amendments if the treatment “shocks the conscience.” The Eighth Amendment standards have been incorporated into the Fifth and Fourteenth Amendment due process analysis by the Court, which determined that individuals detained by the state who have not been convicted by a court enjoy at least the same level of rights as convicted criminals do.

Geneva Conventions

The Geneva Conventions are a series of four international treaties (and three additional protocols) that set the standards in international law for humanitarian treatment of the victims of war. Ratifying States agree to protect vulnerable and defenseless individuals during times of war.  Established in 1949, the Conventions cover armed forces on land and sea, prisoners of war, and civilians, and aim to reduce the suffering of those inflicted with sickness, wounds, or those in captivity, regardless of whether or not they have taken direct part in the conflict. The Geneva Conventions created a protective status for the emblem of a red cross on a white background, which to this day is used to signify protection of medical personnel and materials covered by the Conventions.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The 1996 Act constricted the asylum process, especially for those asserting an asylum claim at the port of entry, in several ways. Since the enactment of a restrictive 1996 immigration law and new restrictions after September 11, 2001, most asylum seekers arriving without proper documentation are imprisoned with little opportunity for judicial review and with increased frequency, some remaining in detention for months or even years. The law’s expedited removal mechanism gives an immigration inspector the power to deport any non-citizen who arrives at any port of entry with either false or no documents, a power previously entrusted only to trained immigration judges. The law calls for, but does not make mandatory, detention of asylum seekers after they pass out of the expedited removal mechanism. Additionally, the law instituted a one-year filing deadline that stipulates that asylum seekers must file their application within a year, with limited exceptions, or lose their chance for asylum. Many immigrants are unaware of this technicality.

The Torture Act

(18 U.S.C. §§ 2340 and 2340A) Also known by its longer form title, the Torture Convention Implementation Act of 1994, the Torture Act implements the United States’ obligation under the UNCAT to criminalize acts of torture, subject to the United States’ reservation that it interprets its obligations in accordance with U.S. Constitutional standards. The Torture Act’s definition of “torture” requires that an individual specifically intend that his act inflict severe physical or mental pain and criminalizes conduct by U.S. nationals that occurs outside the United States.

United Nations Convention Against Torture (UNCAT)

The convention was adopted and opened for signature and ratification by the General Assembly on December 10, 1984, and it came into force on June 26, 1987. UNCAT prohibits torture, as well as cruel, inhuman or degrading treatment, committed by state actors or those acting with  the consent or acquiescence of the state, “for the purpose of obtaining information or a confession, or to punish on suspicion of a crime, or to intimidate or coerce.” UNCAT does not permit the use of torture in any “exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency.”

War Crimes Act (WCA)

The WCA criminalizes “torture” and “cruel or inhuman treatment.” Amended by the MCA to criminalize defined “grave breaches” of Common Article 3, the WCA applies to acts committed “inside or outside the United States” in any circumstance “where the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States.” To date, no individual has been prosecuted under the WCA.

Medical Glossary

Bipolar Disorder

Bipolar disorder is a serious mental illness in which people experience extended periods of overly energetic or irritably mood, known mania, interspersed with periods of depression and feelings of sadness and hopelessness. Bipolar disorder can run in families, and usually starts in late adolescence or early adulthood.

Depression

Depression is a serious medical illness where the person experiences intense sadness, melancholia or despair that has advanced to the point of being disruptive to an individual’s social functioning and/or activities of daily living. Symptoms can include sadness, loss of interest or pleasure in activities previously enjoyed, weight change, difficulty sleeping or oversleeping, energy loss, feelings of worthlessness, and thoughts of death or suicide. Extreme depression can culminate in its sufferers attempting or committing suicide.

Peritraumatic Dissociation (i.e. amnesia, depersonalization, and derealization)

Peritraumatic dissociation is characterized by disassociative responses that occur at the time of trauma, such as depersonalization, derealization, amnesia, or fugue states. Theorists suggest that it is a defensive process in which an individual develops the capacity to separate himself from the psychic and physical pain associated with exposure to trauma. This disassociative capacity is thought to be later used by the individual in future painful circumstances such as activated trauma memories to down-regulate the experience of acute psychological stress.

Posttraumatic Stress Disorder (PTSD)

PTSD is a term for certain severe psychological consequences of exposure to stressful, highly traumatic events. Clinically, such events involve actual or threatened death, serious physical injury, or a threat to physical and/or psychological

integrity, to a degree that usual psychological defenses are incapable of coping with the impact. PTSD symptoms can include the following: nightmares, flashbacks, emotional detachment or numbing of feelings (dissociation), insomnia, avoidance of triggers, loss of appetite, irritability, hypervigilance, memory loss, excessive startle response, depression, and anxiety. It is also possible for a person suffering from PTSD to exhibit clinical depression (or bipolar disorder), general anxiety disorder, and a variety of addictions. PTSD may be triggered by violent personal assaults, natural or human-caused disasters, accidents, or military combat.

Psychosis

is a generic psychiatric term for a mental state involving a loss of contact with reality. It is a mental disorder, with or without organic damage, characterized by derangement of personality and loss of contact with reality and causing deterioration of normal social functioning. People experiencing a psychotic episode may report hallucinations or delusional beliefs (e.g., grandiose or paranoid delusions), and may exhibit personality changes and disorganized thinking. Psychosis is a loss of contact with reality, typically including delusions (false ideas about what is taking place or who one is) and hallucinations (seeing or hearing things which aren’t there), an impairment in the ability to carry out daily activities.

Psychotropic Medication

Psychotropic medications are used to exert an effect on a person’s mental state and are mostly commonly used in treating mental disorders. Psychotropic medications act by inducing changes on consciousness, emotions, mood, or behavior.

Schizophrenia

Schizophrenia is a severe, lifelong mental disorder. Individuals with schizophrenia may experience unusual thoughts or perceptions, movement disorders, difficulty speaking or expressing emotion, and problems with organization, memory, and attention. Individuals may also experience delusions or visual and auditory hallucinations.  Medicines can relieve many of the symptoms, but it can be difficult to find the correct medication.

Somatization

Somatization disorder is a chronic condition where physical symptoms are caused by psychological problems, and no underlying physical problem can be identified. The disorder is marked by multiple physical complaints that persist for years, involving any body system. Most frequently, the complaints involve chronic pain and problems with the digestive system, the nervous system, and the reproductive system. The symptoms often are severe enough to interfere with work and relationships.

Acronyms

CIA: Central Intelligence Agency

CIDT: Cruel, Inhuman, or Degrading Treatment

DoD: Department of Defense

DTA: Detainee Treatment Act of 2005

FBI: Federal Bureau of Investigation

HRF: Human Rights First

ICRC: International Committee of the Red Cross

OLC: Office of Legal Counsel, Department of Justice

PHR: Physicians for Human Rights

POW: Prisoner of War

PTSD: Posttraumatic Stress Disorder

SOP: Standard Operating Procedure

TVPA: Torture Victims Protection Act of 1991

WCA: War Crimes Act

ICE: Immigration and Customs Enforcement

Classification of Status Asylum Seeker Persons already in the United States may seek asylum if they are unable or unwilling to return to their home country due to persecution or a well-founded fear of persecution based on race, religion, nationality, … Continue reading →