Today is a “high day” in U.S. Immigration law history. Do you have a loved one with “possible” mental illness or are you mentally ill plus have the additional problem of U.S. Immigration issues? Well, this short blog has some very exciting news regarding mental illness.
Specifically, I reference “possible” mental illness, because in 2014 the United States and countries around the world still contemplate back and forth whether mental illness is really an “illness”. However, with the lives of U.S. senators, judges, attorneys, doctors and “Indian chiefs” (i.e. people from all walks of life) along with their loved ones being affected by the crippling and potentially fatal disease of mental illness, this disease has come to the forefront in the United States. U.S. Immigration laws have now provided legal relief and protection for non-documented or illegal residents in the United States who suffer from mental illness.
Mental illness is equally being recognized with physical illness and even noted as potentially more severe than physical illness if a mentally ill person is removed or deported back to his or her home country. Recently, a set of U.S. Immigration laws have been approved regarding mental health illnesses and its impact on U.S. Immigration laws is emerging. Below is a brief summary of how the law will operate in it’s most “basic” form. Hiring an attorney who is a member of the American Immigration Lawyer Association (“AILA”) is essential before stepping into a mental illness U.S. Immigration case.
Short outline of new U.S. Mental Immigration Law (“the Laws”):
The following is a non-all inclusive list of mental illnesses that are recognized by the Laws:
-Post Traumatic Stress Disorder
-Any mental illness that interfers with the capability of an individual who is unable to perform and function in daily normal life activities that all “normal” mentally well individuals can and should be able to do.
Some of the legal relief that illegal or undocumented foreign nationals may seek in a U.S. Immigration Court or with the Department of Homeland Security (“DHS”) is the following:
-Convention Against Torture (CAT)
-Withholding of Removal from The United States
-Cancellation of Removal
There are conditions that need to be demonstrated as “hardship” if one is returned to their home country abroad with a mental illness. The main conditions are that the home country does not treat mentally ill individuals and/or mental illness faciliaties are non existent in the foreign nationals home country. And/OR if an illegal person is mentally ill and removal to his or her home will result in torture and persecution.
A Finding of Incompetency
Not all individuals who suffer from mental illness, are incompetent. With that said, judges are now required to hold an incompetency hearing for purposes of U.S. Immigration law to determine if court ordered “Safegaurds” are needed for the mentally ill foreign national. Your Immigration attorney must screen for the need for such a hearing and the judge and DHS should be on the “look out” for incompetency issues notwithstanding the foreign national’s legal counsel.
As the law is so new, it is left to be seen how the two categories of mental illness will fair in court. Category 1 mental illness: Mentally ill but NOT incompetent; Category 2: Mentally ill but incompetent.
Disability Rights International’s standards for the mentally ill is being recognized by U.S. Immigration Courts and DHS for the standard as it pertains to mental health abuse.
Finally, the government attorneys for DHS have been known to drag out cases of even detained mentally ill individuals through various continuances. DHS, through its counsel, may also make it difficult for a foreign national’s attorney to access mental health records exclusively in the hands of DHS. It is wonderful news that this practice has come to an abrupt end. If DHS fails to recognize, disclose or bring to the light mental issues that should reasonably have been recognized, then Immigration Deportation and Removal Proceedings may be terminated against the mentally ill individual plus other remedies in law to be determined as time goes on.
It is essential to contact an experienced U.S. Immigration attorney if you or someone you know could benefit from any of these exciting new and emerging mental health policies and laws. You may contact our firm at to speak with an attorney at [email protected] or call one of our telephone numbers listed conveniently at www.scottcclaw.com
MEMBERS OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION (AILA)
Vassell & LeeRC Law Group