Sophie Feal on the Shame of the Nation: The Treatment of Vulnerable Immigrants in Detention

Sophie Feal on the Shame of the Nation: The Treatment of Vulnerable Immigrants in Detention

The problem of noncitizens in detention is not new, but it received attention in 2008 when the Washington Post wrote on the medical (mis)treatment of detainees. Other media organs also covered the issue, and official statements and hearings followed. Sophie Feal, who regularly visits a detention facility to give legal orientation sessions and recruits pro bono attorneys to help the detainees, puts these recent developments in context. She writes: 

In a series of articles, the Post reported on the tragic, yet potentially avoidable, deaths of eighty-three immigrants detained by Immigration and Customs Enforcement (ICE) from March 2003 to March 2008; the drugging of immigrants with cocktails of psychotropic drugs to force their compliance with removal; and the lamentable treatment, including the misdiagnosis, of the mentally ill in detention. These articles are troubling not just from a legal standpoint; inevitably they leave one wondering about the moral foundation of a nation where such disturbing things happen, and more precisely, about the ethics of the people directly engaged in the acts. . . .
 
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     The . . .  case [of Castaneda v. United States] exemplifies the theories under which a detainee who has not received the minimum level of medical care might bring a medical negligence action against the federal government. The FTCA [Federal Tort Claims Act] allows for a medical malpractice action that may be brought only against the United States, to the extent that state law allows the claim. However, the FTCA prohibits punitive damages. Additionally, a detainee may bring a claim that his/her Eighth Amendment protection against cruel and unusual punishment has been violated. To bring this latter action against the federal government, a Bivens claim may be made, which allows the recovery of damages against individual government employees, such as the detention facility physician. Punitive damages are recoverable in a Bivens action.
 
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     . . . In an article that appeared in April 2008, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit echoed a common finding by the advocates and the media that there is a wide and troubling variation across the country in the decisions of immigration judges, particularly in asylum cases. Posner declared that “the immigration court judges rely too much on information from the U.S. Department of State in educating themselves about international issues and are poorly equipped to understand the body of language and facts delivered by the applicant, often through an interpreter.” There is no doubt that, in recent years, the federal courts have either reversed or remanded a growing number of asylum decisions made by the administrative tribunals, citing an array of legal and factual errors.
 
 
(footnotes omitted)
 
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