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Note - Protecting the Least Among Us: Using the Flores Agreement as a Model for an Alternative to Detention for the Mentally Ill in ICE Custody


Mentally ill migrants are currently being detained in cells where noose-like bedsheets hang from vents and their “mental health treatment” often consists of solitary confinement. Mentally ill adult migrants detained by ICE in the United States do not receive the care their psychological conditions require because ICE facilities are ill-equipped, under-staffed, and unable to handle their unique needs. This Note outlines the current issues faced by this vulnerable population and suggests an alternative to standard detention for mentally ill migrants subject to detention by placing them in an environment conducive to their needs with mental health professionals instead of prison guards, modeled after the shelters used for Unaccompanied Alien Children in the custody of the Office of Refugee Resettlement. Even if the calls for administrative closure of immigration cases of the mentally ill are eventually heeded, as policy moves to provide additional safeguards to this population based on the Franco decision, the reality is that many mentally ill migrants will still be detained at some point throughout their removal procedures. These individuals deserve better care and treatment during their civil detention than ICE can provide.

Instead of standard ICE detention, mentally ill migrants should be detained in the least restrictive setting decided on a case-by-case basis, as modeled by the placement of Unaccompanied Alien Children. There, a team of staff members can work toward a variety of goals, including restoration of competency and the collection of documents necessary to the individuals’ removal proceedings to both care for the migrant and assist the already overburdened immigration courts. We must do better to protect the least among us, including this vulnerable group, and the first step in doing so is to secure their safety and wellbeing throughout the immigration process.