Ann Menasche should be able to walk into any psychiatric facility at any time to investigate allegations of neglect and abuse. All the disability-rights attorney needs is probable cause. Except, it seems, when the allegations involve patients held by the federal government for allegedly violating immigration laws.
For the last several weeks, Menasche, an attorney with Disability Rights California, has tried unsuccessfully to get into Alvarado Parkway Institute (API), a La Mesa psychiatric hospital, to interview mentally ill detainees who've been sent there because staff at federal detention facilities, like the Otay Detention Facility, can't adequately care for them. Menasche was given a formal tour of the facility on March 6—she could see detainees but not speak with them. When she submitted a request to return to API to interview specific patients, an Immigration and Customs Enforcement (ICE) official told her she needed to give 72 hours advance notice and submit what's known as a G-28 form—a form immigration attorneys whose services have already been retained are required to file.
Disability Rights California's interest in talking to detainees is “wholly unrelated to immigration,” Menasche wrote in a May 5 letter to ICE lawyers. In the letter, Menasche pointed out that ICE was imposing on her requirements that went beyond the agency's own policies: “Attorneys representing detainees on legal matters unrelated to immigration are not required to complete a Form G-28,” she quoted from ICE visitation standards.
“I want to talk to everybody, and at this rate, I'm not getting very far,” Menasche said in a May 14 interview with CityBeat.
ICE spokesperson Lauren Mack said in a written statement that officials requested the 72-hour notice because the medical condition of the two detainees Menasche wished to speak with was "unstable."
"ICE officials requested of the attorney up to 72 hours to work with the API staff to accomodate the visit while ensuring it would not adversely impact the detainees' recovery and treatment they were receiving," Mack said.
"By the time 72 hours was up, they were back at Otay," Menasche said. "So, if they were so unstable, they certainly recovered rather quickly."
On Monday, Menasche learned that one of those detainees, whom she'd recently interviewed at the Otay Detention Facility, had been deported. The detainee had been sent to API for refusing to eat and angrily described to Menasche having to spend 25 days at the psychiatric hospital shackled to a bed. Menasche immediately faxed a letter to API's CEO, Patrick Ziemer, letting him know she'd be conducting an inspection of the hospital on Wednesday, May 20.
What Menasche's seen for herself—and officials have confirmed—is that each detainee sent to API is shackled to a bed 24 hours a day and monitored by two armed guards. They are kept “in virtual isolation,” Menasche said, forbidden from sending or receiving mail or having access to a phone. Family members aren't informed of a detainee's whereabouts, told only that they've been transferred. At API, detainees aren't allowed to watch TV—Menasche said she was told that it's because the TV can be used as a weapon—or read a newspaper. They're unshackled only to use the bathroom or take a shower, and the only exercise they get is whatever the short distance the chain connecting their ankle to the bed will allow.
Nancy Kincaid, a spokesperson for the state's Department of Mental Health, couldn't comment on the conditions at API but said state laws governing the use of restraint dictate a procedure hospitals must follow.
“You can't just restrain people or seclude people,” she said. “It has to be documented; the doctor has to actually see them. The doctor has to document why that person is in seclusion and restraint; they have to be checked every 15 minutes, and each hour the doctor has to see them again to re-evaluate.”
Patrick Ziemer, Alvarado Parkway's CEO, didn't respond to a phone call and e-mail from CityBeat by press time. Ziemer told a San Diego Union-Tribune reporter that state law allows him to limit a patient's rights if he determines that there's “good cause.” API is required to provide a quarterly report to San Diego County's Department of Health and Human Services documenting why a hospitalized individual's rights are denied and, according to state law, “denial of a person's rights shall in all cases be entered into the person's treatment record.”
Menasche said she's requested, but hasn't yet been given, access to patient files.
“API is not following state law—they may fill out the paperwork for denial of rights, but it is pro forma,” she said. “Good cause for denial of rights is to be based on an individual assessment, not on a blanket policy on a group of patients.”
Menasche sent a letter to county Mental Health Director Alfredo Aguirre on May 5 informing him of the conditions at API. On May 18, she received a message from Aguirre saying he was aware of the situation and would be following up with API and ICE. A county spokesperson told CityBeat that the county was unaware of detainee conditions prior to receiving Menasche's letter.
“This has been going on under the radar for many years,” Menasche said.
Menasche said she was told that security concerns drive policy. In an April 24 letter to ICE's California field directors, she summarized what she'd been told by Assistant Field Director John Garzon: “That the locked psychiatric facility at API was less secure than the Otay Detention facility, for example; that ICE was concerned about the possibility of escape from API (apparently, despite the presence of two armed guards per detainee); that a television could be used as a weapon; and that API had no provisions for monitoring mail or telephone calls, normally done at the Otay facility.”
Menasche said she was told these rules had become stricter since 9/11, though she noted in the April 24 letter that “Mr. Garzon was unable to point to any of the 700 detainees currently held at Otay that were being charged with terrorism or a terrorism-related crime.
“We are unaware of any relationship between national security concerns and the issues addressed herein,” she concluded.
In a written statement, ICE spokesperson Lauren Mack said Homeland Security Secretary Janet Napolitano “has called for a comprehensive review of the nation's immigration detention practices” and that “ICE is currently reviewing its visitation and telephone access practices for immigration detainees being housed in private psychiatric facilities to ensure they have appropriate access to both.”
Greg Pleasants, an attorney with Mental Health Advocacy Services in Los Angeles who brought the conditions at API to Menasche's attention—two of his clients were held incommunicado for extended periods of time at various private psychiatric hospitals, API among them—emphasized that immigrant detainees should not be equated with prisoners being held for criminal violations.
“People who don't understand immigration law think two things: that these people are somehow criminals and that they're all undocumented—they're all illegal, so to speak—they never had any status, they just entered the country illegally, but that's not an accurate picture.
“Some of these people have never been convicted of crimes,” Pleasants said. “Second of all, they're not in criminal custody—this is a civil matter entirely. Third of all, lots of these people, all of my clients or most, are long-term permanent residents who've been in the United State since they were children and have families here and work jobs here and pay taxes here and all the rest. They're stuck in an immigration detention system that is bursting at the seams and is operating in a culture where the only important thing is deportation.”
Unlike criminal defendants, ICE detainees are not entitled to court-appointed legal representation. Nor are mentally ill detainees allowed a hearing before being committed involuntarily to a psychiatric hospital, Pleasants said.
“The Constitution requires—and this is binding on ICE just like it's binding on everyone—that when a person in detention, when a prisoner or even a civil detainee… is involuntarily hospitalized, there has to be a procedure followed,” he said. “The person is entitled to a kind of hearing where they can say, ‘I don't deserve to be hospitalized, I want to present evidence on my behalf, I want someone to help me.' What we're seeing in [ICE's] conduct is this law is not being followed. They're simply placing people in these facilities and basically involuntarily hospitalizing people without any kind of due process.
“They've created basically a little Guantanamo for people with severe mental-health issues,” Pleasants said. “And that doesn't fly from a due-process standpoint.”
This story has been updated since its initial publication to include comments from ICE that came in after CityBeat's deadline.Write to firstname.lastname@example.org and email@example.com.