It was already mid-November, and we would have to start working on Nick’s asylum claim to be ready to file the legal argument and supporting documents with the immigration court in January. But now everything had changed. We had a new reason to ask again for DHS to drop the charge against Nick: he had incipient mental illness and low intellectual functioning. Is this really the kind of person the US wants to deport? And could he even understand what it means to be in deportation proceedings? After all, he had been brought to the US as a three-year-old.
I asked for Sara and Nick’s help to prove that Nick had wide support from his community to stay here, and that he was receiving the mental health services he needed. With this, and the evidence of his diagnosis with incipient schizophrenia, we might be able to get the charges dismissed. It was a long shot, since the DHS attorney had already denied our request once. But the evidence of his illness was compelling. In a week, Sara gave me ten letters of support for Nick, and in another week, we had a report from his new mental health therapist.
The report from the therapist was grim. Nick had regular debilitating delusional episodes, and had suicidal thoughts. The therapist urged immediate psychiatric intervention, including medication for psychosis. I was stunned. Nick suicidal? But he was like a child! It was as if a nine year old was thinking of suicide. How did he even know about suicide? Sara said she was doing all she could to get Nick to a psychiatrist, but without health insurance, the waiting lists were long.
I filed the request immediately with DHS to withdraw the charge against Nick, with copies of the forensic diagnosis of Nick’s intellectual abilities and his delusional thinking, the therapist’s report, affidavits from his parents that they had no family in Mexico able to take Nick in, and an affidavit from Mexico’s former attorney general stating that Nick was very likely not to receive mental health care in Mexico and that he would be an easy prey for criminal gangs. The request included letters from Nick’s parents’ church community showing that many US citizens and permanent residents were standing in support of Nick and his family, and my argument that it would be far more conservative of DHS, court, and ICE resources to withdraw the charge against Nick than to face long court proceedings to determine if Nick were competent to stand trial.
I didn’t hold out much hope that we would get the charge dismissed, since the same DHS attorney who had denied my prior request to withdraw charges was still assigned to Nick’s case. But there was a possibility, particularly in light of new guidance from DHS headquarters, issued November 17 to all DHS attorneys, regarding “low priority” cases that DHS attorney should agree to dismiss. If the person in deportation proceedings had long residence in the US, had no immigration violations in the last five years, and had no serious criminal charges (driving drunk and domestic violence, among the most common crimes, were serious crimes), DHS should consider dismissing the case. The last factor listed in the guidance memo gave me the most hope: those in deportation proceedings with serious physical or mental illnesses should be considered for case dismissal. We were walking a fine line with Nick. How much weight would DHS give to Nick’s mental illness, balanced against his drunk driving charge?
The answer came two days after Christmas: no weight at all. The letter from the DHS attorney did not even mention Nick’s mental illness. The attorney cited Nick’s juvenile drunk driving charge as the reason for denying the request. There was no appeal. I hadn’t waited for the response anyway. Nick’s asylum case was almost ready to file. The asylum argument hit hard on persecution in Mexico of those with mental illness. The country’s documented human rights abuses of those confined to government mental institutions. We would complete the case and meet our filing deadline by January 31, 2012. In early February, I’d begin to prepare Nick for his testimony, and his parents to testify by telephone in court that Nick would not have anyone with whom he could live in Mexico. They could not risk testifying in person, since they were undocumented.
Meanwhile, although it was a long shot, I filed a motion to continue the asylum case with the immigration judge, citing new evidence of Nick’s mental illness and requesting time for the court to make a determination about Nick’s ability to understand the charges against him, and what deportation meant. I would not likely get word of the judge’s decision before the deadline to file the asylum case, so we had to file the case by the deadline. But if the judge granted the motion, we could win precious time, time for the DREAM Act to gain traction in Congress, maybe, or time for DHS to assign a new attorney to Nick’s case. A new attorney might be more approachable, and more open to dismissing the immigration charge against Nick.
In the second week of January, Sara called to ask me if I would talk to a group that she had heard about. It was a network of undocumented university students and their supporters in the US, called End Now. The network rallied support for passage of the DREAM Act, and in individual cases like Nick’s, they built community support that could change a government attorney’s mind. I said I would talk with the group, if Nick gave his okay. Nick did, and I spoke to a quietly determined young woman in Seattle about his case. Yes, she said, it sounds complicated, his case. But we’ve been successful in getting immigration charges dismissed in tough cases before.
To be continued…