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