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In my previous article, Demanding Human Rights for the Mentally Ill in the Jan-March '04 issue, I mentioned UN Resolution 46/119, which is the instrument used by Mental Disability Rights International (MDRI) while doing its human rights missions. This, together with the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993 provides some protection for people with disabilities.

In an excellent review of the subject, The Right to Asylum for People with Disabilities, authors Arlene Kanter and Kristan Dodey bring forth a defense case against the deportation of mental health consumers.

Kanter and Dodey write, "…the continuing cruel, inhumane, degrading, and discriminatory treatment of people with disabilities in some countries of the world today constitutes persecution under American asylum laws and that individuals with disabilities who face or fear such treatment on account of their disabilities should be entitled to seek asylum in the United States."

When it comes to members of a particular social group, the Unites States Supreme Court has held that, "in order for persecution to be 'on account of' one of these protected grounds, there must be evidence that the persecutor seeks to harm the victim on account of the victim's possession of the characteristic at issue."

Historically, we know that people with disabilities have been persecuted. That was the case during World War II when the Nazis targeted them for extermination. People with disabilities continue to be subjected to cruel, inhumane and degrading treatment in the form of physical and mental abuse, inhumane confinement, forced sterilization, prejudice and discrimination around the world.

MDRI has documented findings in the Granjas, Colonias or Social Care Homes that constitute cruel and unusual punishment, people deprived of liberty, no-right to treatment and lack of basic necessities of life. These documented reports were used in the cases that I will describe next.

In the United States, illegal aliens that suffer from a mental condition have used the evidence gathered by MDRI as a basis for fighting deportation. I have performed evaluations in cases in California, Arizona, and Pennsylvania. Also, I am aware of other cases brought to the attention of another psychiatrist Brittany Benowitz, a staff member of MDRI.

In the case of INS vs. CP, an immigration judge in California accepted these reports to support the claim of a mental health consumer seeking a "withholding of removal" on the basis of membership in the "social group" of persons with mental illness.

He was a 27-year-old green card holder who emigrated from Mexico to the U.S. with his family when he was about seven years old. He has had paranoid schizophrenia dating back to 1990 and borderline intellectual functioning. He was accused of lewd and lascivious conduct during August and September of 1995, and he was convicted on February 2, 1996. The charge was that his 10-year-old sister reported to a counselor at school that CP touched her on the breast and leg through her clothing. He was placed on parole, which was then revoked and he was sent to state prison in March of 1998. He was transferred to the State Hospital for a few months then to a community mental health center where the United States Immigration and Naturalization Service (INS) picked him up because of his one and only criminal conviction. The INS sought to deport him to Mexico.

CP's counsel used the facts presented in the MDRI report to support protection against deportation under asylum and the customary international law, which provides that we should not return a person to a country where the person is likely to be persecuted.

The MDRI report documented the inhumane and degrading condition in Mexican long-term care facilities called Granjas and even more important, the arbitrary detention without judicial review when there are no or minimal community-based services. The conditions in those hospitals rise to the level of persecution and a threat to life and freedom.

A couple of the Granja directors as well as other members of the World Association for Psychosocial Rehabilitation (WAPR) with whom I was conducting visits informed me that the Mexican police, when confronted with a patient similar to CP, would bring him to the attention of the Granja. The admission will be without any due process protection. A large number of people placed in long-term facilities are officially labeled "abandonados"—people who are fully capable of living in the community, but have no family or no other place to go. He will fall into this category. CP lost his case and will most likely be deported to Mexico.

In the case of INS vs. D-V, an illegal alien living in Pennsylvania with his family and son, AD, also an illegal alien and diagnosed with mental retardation. This is a tight-knit family that has been able to adapt and integrate into the community with scarce resources. They are productive members of their community with time to volunteer for work in the church. They have been able to find assistance for their son, AD, for his mental retardation.

D-V's deportation would seriously disrupt this family, particularly his children who would have to overcome extreme economic hardship as D-V is the primary provider. As a result, the family has made a conscious decision to move to Mexico if he was deported. Their economic status in Mexico will be significantly less than the one they currently have in the U.S. D-V would be lucky to find employment and any employment he would find in Mexico would never allow him to earn the income that he has been able to achieve here. ID, the 10-year-old, would be most seriously affected since he is the youngest. If he were to travel to Mexico after being raised in the USA (ID does not speak Spanish well), he would feel isolated, uprooted, trapped without any support system to help him. ID already was showing signs of disruptive behavior. If he moved to Mexico, the situation could only get worse as a result of being displaced from the homeland he knows.

In this case the identified consumer is AD. D-V and AD are illegal aliens. Here we fought deportation of the father based on the lack of services in Mexico for AD. In addition, as part of the legal strategy of the defense team, we pointed out the uprooting of an American citizen, ID, placed in a foreign environment alien to him.

I am happy to inform you that D-V had a ruling in his favor and was able to remain in the United States.

These cases and the previous article in NYC Voices show you how the struggle for justice for mental health consumers rages on.