Due Process: What it Means for South Asian Immigrants

This post was previously published at the Asian Pacific Americans for Progress blog as part of the Asian Pacific American Week of Action on immigration reform.

Before I started law school, I had definitely heard the term “due process.” I have to confess, though, I wasn’t really sure what it meant. All I knew is that it sounded good, seemed to be a core American value, and was rooted in fairness. It was something that this country prided itself on as a hallmark principle that came down from our Founding Fathers.

When we talk about immigration, there is often talk about due process violations affecting the lives of immigrants, but what does that really mean? Of course, we could always turn to our trusted friend, the Webster’s Dictionary for some guidance: “legal proceedings that are carried out following established rules and laws that result in unfair or arbitrary treatment of individuals.” (The legal eagles among us can rely upon the definitive Black’s Law Dictionary for some fancier and technical language, too.) But these lofty and abstract definitions did not hold much traction for me. It wasn’t until I encountered the real life experiences of immigrants whose due process rights were violated that I understood why this value is so dear and needs to be protected in our country’s immigration system.

Below are just a few examples spotlighting South Asians seeking asylum that made clear to what due process (or the lack thereof) truly means.

Due process means access to legal representation and legal information: Monisha, originally from Pakistan, was an honors graduate from UC Berkeley who came from Mumbai to Texas to seek asylum with her parents and brother when she was ten years old. While in India, her father was very involved in the local Muslim community – as a result of his activities, thier family became the target of Hindu fundamentalist groups. They were denied asylum because their attorneys failed to meet necessary filing deadlines. Immigration authorites later arrested her parents and brother and placed them in deportation proceedings. Navigation the complex world of immigration law is often worse for those who do not have lawyers and have to represent themselves because immigrants facing deportation are not guaranteed an attorney. Does it seem fair that accurate legal information and competent representation is often unattainable particularly when the immigration system is so complicated?

Due process means ensuring that immigrants are not criminalized and placed in detention: Harpal, a Sikh man, chose to be deported back to India where he had been tortured, rather than languish in limbo in immigration detention. When he arrived in the U.S., he settled in the Bay Area, began working as a truck driver, and applied for asylum. He was later arrested by U.S. government and immigration officials. After being detained for more than eight years in California, much of it in solitary confinement, and tired of waiting for Convention Against Torture claim to be resolved in the courts, he decided to return to a country where officials had previously mistreated him severely. Does it seem fair to lock up individuals for years who have committed no crime and are waiting excessive period of time for their immigration cases to be resolved?

Due process means guaranteeing fairness of immigration court proceedings and case review on appeal: A Sri Lankan woman fleeing persecution in Sri Lanka was denied asylum by an immigration judge who did not believe her case simply because she was “looking up at the ceiling” during testimony. The judge ignored detailed evidence of her fear of return and based denial on this minor point about her demeanor. Even worse, the appellate body, the Board of Immigration Appeals, did not disagree with the judge’s ruling. It was not until a federal court reviewed her case that the initial judge was ordered to consider her case more thoroughly. Does it seem fair that the safety and lives of immigrants depend upon often arbitrary and unfair decisions that can occur in Immigration Courts and are given limited review?

These are just a few stories that you find replicating themselves within the South Asian community that convey in real terms what the lack of due process looks like. As immigration reform moves forward, it is crucial that due process and fundamental fairness be restored to policies and procedures that affect the lives of so many immigrants in this country.

Mentally Ill Man with Open Case, Deported back to India 2 days After Obama Inaugurated, is Now Missing

This case came to our attention through Dimple Rana at Deported Diaspora. In a tragic turn of event, Harvey Sachdev, who has lived in the United States for more than 40 years, was deported to India even though his case is still open on appeal. Unfortunately, Sachdev suffers from schizophrenia and has been missing since his arrival in New Delhi. Read the press release about Sachdev’s case below.

Want to do something to to demand human rights for immigrants who are in detention and who regularly face due process violations? Take a minute to sign this petition to President Obama encouraging him to consider these violations as he staffs and restructures the Department of Homeland Security (the Executive agency that oversees many key operations including Immigration and Customs Enforcement) here <http://www.rightsworkinggroup.org/?q=DHSPetition>

PRESS RELEASE:
Mentally Ill Man with Open Case, Deported 2 days After Obama Inaugurated, is Now Missing

FOR IMMEDIATE RELEASE
Wednesday, January 28, 2009

For more information, contact:
Neena Sachdev, nks29@cox.net
Greg Pleasants, JD/MSW, (213) 389-2077, ext. 19, gpleasants@mhas-la.org
Dimple Rana, (781) 521-4544, dimple.scorpio@gmail.com

Washington DC Area Family of Mentally Ill Man Fears for His Life as He is Missing in India Following Deportation
ICE executes deportation of schizophrenic man on January 22nd, despite his case still being under review, that he is the son, brother and father of U.S. citizens and that his deportation could result in his death.

Washington D.C.  –  January 28, 2009 – The Sachdev family is living a nightmare as Immigration and Customs Enforcement (ICE) deported their family member, Harvey Sachdev, to India on January 22nd. Harvey was a resident of the United States for nearly 40 years, and is diagnosed with schizophrenia. Harvey is a son, a brother and a father of U.S. citizens. His case is still open on appeal before the Fourth Circuit court. Nevertheless ICE deported him to India on January 22nd, 2009.

The trauma of Harvey’s prolonged detention and recent deportation made him highly unstable. He is now missing in New Delhi, India, a city of 11 million people. It is an unfamiliar city to him, where he has no family and no access to medication. According to his brother and sisters, “Our brother’s deportation is likely a death sentence for him, and we also fear our mother’s life. The stress and the worry has put her life in peril.”

Having pushed his deportation date back several times, ICE initially notified the family of the scheduled deportation, but failed to confirm it, so necessary arrangements could be made in India. After repeated calls on the day of his deportation, ICE only told the family he was no longer in detention. The family also repeatedly attempted to get confirmation from the India Consulate Offices and Embassy, which had to issue travel documents, but received no information.

Harvey came to the U.S. with his parents at the age of twelve. He was valedictorian of his high school and earned a scholarship to college. Tragically, in his late teens he developed schizophrenia and has battled mental illness for all of his adult life.

Due to his mental illness, he was convicted of inappropriate and aberrant but non-violent crimes. The most serious was indecent exposure, but he was not guilty of any physical contact with any person, nor of any violence. There is no indication that any court thought that the punishment for his crimes should result in deportation to a country that he can’t remember, where he has no friends or family or any connection whatsoever.

His parents and his family are U.S. citizens. Two of his family members are serving in the military, with one completing two tours of duty in Iraq. He married a U.S. citizen and has a U.S. citizen daughter who is now twenty-two years old.

Mr. Sachdev is mentally ill and requires care, which his family is able and willing to provide. He has no one in India and does not have the ability to survive on his own.

Greg Pleasants, JD/MSW, an Equal Justice Works Fellow and Staff Attorney at Mental Health Advocacy Services, Inc. states that “People with mental and developmental disabilities who are deported can also face a grave risk of harassment and even persecution in their home countries – harassment and persecution based solely on their disabilities.”

“Without family or medical support, deportation can become a death sentence. Suicide and attempted suicide are not uncommon among deported people with mental illnesses. Access to medicine can be limited and people are often deported without any information on their medical background.  Deportation of the mentally ill is cruel and unusual punishment,” says Dimple Rana of Deported Diaspora, an organization working with people deported from the U.S.

For more information, contact:
Neena Sachdev – Harvey Sachdev’s sister, nks29@cox.net
Greg Pleasants, JD/MSW – Equal Justice Works Fellow and Staff Attorney at Mental Health Advocacy Services, Inc. (213) 389-2077 ext. 19, gpleasants@mhas-la.org
Dimple Rana, Co-Founder and Director, Deported Diaspora, (781) 521-4544, dimple.scorpio@gmail.com