Thread: Rights Agency Urges U.S. Not to Deport AIDS Patient

http://www.nytimes.com/2005/08/27/nyreg ... eport.html

August 27, 2005
Rights Agency Urges U.S. Not to Deport AIDS Patient
By NINA BERNSTEIN
The human rights arm of the Organization of American States is asking the United States not to deport a terminally ill AIDS patient from the Bronx while it reviews her claim that deportation would violate her basic right to life.

The patient, Andrea Marie Mortlock, 41, is a legal permanent resident of the United States who was convicted in 1987 of selling cocaine and has been fighting a criminal deportation order for a decade. She argues that deporting her to her native Jamaica would be "tantamount to a death sentence" because she could not get proper AIDS medication and treatment there and would face severe discrimination.

Her lawyers turned to the O.A.S., the organization for the 35 nations of the Western Hemisphere, in a desperate bid to halt the deportation.

The petition is the first deportation case involving AIDS to be accepted by the O.A.S. agency, the Inter-American Commission on Human Rights.

Advocates for human rights say it points to a larger trend: As groups like deportable immigrants and death row inmates are being blocked from domestic courts by legislators impatient with protracted appeals, international bodies like the O.A.S. commission, the International Court of Justice at The Hague, and the United Nations Committee Against Torture are expanding their reach to fill the gap.

"In the past it hasn't been as relevant," in countries like the United States and Canada, said Brian Tittemore, a staff lawyer for the commission, which has mainly dealt with human rights abuses in Latin American member states since it was founded in 1965.

"Previously people were protected under those strong national Constitutions. But the more you see these gaps and gray areas, the more it matters."

At the State Department, Olwyn Staples, a public affairs officer with the United States mission to the O.A.S., said officials could not comment.

The human rights commission, based in Washington, has no enforcement powers, but it has considerable moral authority, and an overall record of cooperation by member states, including the United States. Unlike other member states, however, the United States does not consider the commission's rulings legally binding.

The commission took on three out of the 57 petitions it received against the United States last year, out of a total of 160 petitions selected from among 1,329 received.

It is now eager to raise its profile among American immigration lawyers, Mr. Tittemore said, because the protections it offers transcend nationality. Though legal scholars say it is the only international forum where the United States responds to individual complaints, it is still relatively unknown outside a network of American death penalty lawyers.

In Ms. Mortlock's case, her lawyers said, a student intern working for the lawyers stumbled on the commission's existence during a frantic Internet search for ways to halt her immediate deportation. Advocates say that Ms. Mortlock, a former drug addict with a long history of petty larceny, turned her life around after a judge ordered her released from nearly three years in immigration detention in March 2003 over the government's objections.

At that time the Jamaican consulate in New York was refusing to issue travel documents for her deportation on the ground that there was no medical care for her illness in Jamaica.

In court filings, federal lawyers threatened sanctions against Jamaica, faulted Ms. Mortlock for revealing her 1998 diagnosis of H.I.V./AIDS, and vigorously opposed her release from a series of immigration detention centers in Pennsylvania and Texas.

But Sarah Loomis Cave, a lawyer for the firm Cleary Gottlieb acting without fee, and Olivia Cassin, a Legal Aid Society lawyer, won her release on the basis of a Supreme Court decision known as Zadvydas v. Davis, which held that indefinite detention - defined as more than six months - is constitutional only if the detainee is dangerous.

In some ways, Ms. Mortlock's life reflects the dark side of familiar immigration patterns, said her doctor, Gabriela Rodriguez-Caprio. She was a child when her mother went to work in the United States, leaving her behind in Jamaica in an abusive household.

Arriving in New York at 15, she eventually succumbed to drugs and petty crime to feed her habit, and then served a year in prison on the cocaine charge.

In and out of jobs and rehabilitation programs, she missed her day in immigration court in 1995 and was ordered deported in absentia. Then it was too late: in 1996, Congress adopted laws requiring deportation in a larger number of criminal cases, sharply narrowing chances for individual judicial review.

Since her 2003 release, Ms. Mortlock, who has a sister, a daughter, 22, and a son, 12, who are all United States citizens, hewed to a complicated medical regime as she sickened, took vocational courses, arranged her son's baptism, and reported regularly to federal immigration headquarters in Manhattan with Ms. Cassin.

She was taken into custody at the headquarters on Aug. 11, and is being held for deportation in Passaic County jail in Paterson, N.J.

In an affidavit to the Inter-American Commission, Dr. Rodriguez-Caprio wrote that medications, nutritional supplements and growth hormones that slow Ms. Mortlock's illness are unavailable in Jamaica, and "her missing these medications will lead to rapid progression and death."

Federal authorities say her illness has no bearing on their proceedings.

"It is our legal obligation to carry out a removal order that has been issued by a federal judge," said Tim Counts, a spokesman for Immigration and Customs Enforcement. "That is our job, and that is the only motivation for moving forward on this removal."

In papers opposing the reopening of the 1995 deportation order, James D. Paoli, a lawyer for the immigration agency, said that regardless of the hardships Ms. Mortlock faces because of her illness, after more than a decade, she "is a perfect example as to the necessity of bringing finality to proceedings."

Ms. Cassin countered, "How can you balance finality in an immigration case with someone's right to live?"

She cited a decision by the European Human Rights Court in the 1990's, overruling British courts that had approved the deportation of a drug smuggler dying of AIDS to his native St. Kitts, and holding that "his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment."

It is the rights to life, physical integrity and protection from torture that have most drawn international bodies into the domestic fray.

Currently, the United Nations Committee Against Torture, which monitors compliance with the international Convention Against Torture, is demanding more information about individual cases from the United States, which presented a report in May.

In March 2004, the International Court of Justice in the Hague, also known as the World Court, ruled in a lawsuit brought by Mexico against the United States that 51 Mexicans on death row had a right to reconsideration of their convictions and sentences under the Vienna Convention, because they had not been informed at the time of their arrests that they could seek help from Mexican consular officials.

The issue had reached the United States Supreme Court in one case, but President Bush decided to comply with the World Court ruling, calling it an exercise of his foreign affairs power. And in a growing number of high court rulings in recent years, justices have used or cited the reasoning in international decisions, including some by the Inter-American Commission.

Conservatives like Richard Samp, chief legal counsel to the Washington Legal Foundation, deplore this development as an intrusion on the prerogatives of the elected branches of government.

"If Congress makes a determination that someone should be deported regardless of the fact that they have AIDS, then they ought to be deported, regardless of whether there's an opposing position by a body like the O.A.S.," he said.

Human rights advocates like Juan Mendez, a former president of the commission who now directs the International Center for Transitional Justice in New York, welcome the trend. "International law is not going to substitute for domestic policy or domestic law," he said, "but it's going to test the limits and push the envelope in the direction of more protections rather than less."

www.hardbeatnews.com

U.S. Determined To Deport Terminally Ill Jamaican Woman
By Kaara Baptiste
HardBeatNews.com, September 2, 2005

Hardbeatnews, NEW YORK, N.Y., Fri. Sept. 2, 2005: Humanitarian appeals to delay the deportation of a Jamaican-born AIDS victim back to her homeland may prove fruitless against the determination of the United States Immigration and Customs Enforcement.

Andrea Mortlock, 41, a legal permanent resident of the United States, has been contesting a criminal deportation order following a 1987 conviction for selling cocaine. Mortlock and her attorneys argue that being sent back to Jamaica would subject her to a lack of proper medical treatment and severe discrimination.

But Tim Counts, an ICE spokesperson, told HBN this week, agency officials have an order to deport Mortlock and that’s what they will do.

“Ms. Mortlock has a final order of deportation issued by a federal judge,� said Counts. “We are the agency responsible for carrying out those orders.�

Counts added that because the order was issued in a federal court, as opposed to a state court, it’s mandatory for the agency to carry out the removal. The Office of Detention and Removal, a division ICE, is responsible to remove unauthorized and criminal aliens from the United States.

Mortlock, in addition to peddling cocaine, is a former drug addict with a long history of petty larceny, and is deemed a criminal alien under U.S. Immigration laws and having served jail time for her crime, is now subject to automatic deportation. Once deported, she cannot re-enter the U.S. unless she gets a waiver from the U.S. Attorney General.

Counts response come as The Inter-American Commission on Human Rights, the human rights agency of the Organization of American States, requested the United States government delay action on the deportation order while they review her claim that her removal would violate her human rights.

O.A.S representatives did not respond to HBN inquiries about the status of Mortlock’s case at press time.

Mortlock’s legal team appealed to the O.A.S, in a desperate bid to halt their client’s deportation. It is the first such case involving AIDS to be accepted by the IACHR.

She has been fighting the deportation order for a decade after being held in detention centers in Pennsylvania and Texas. She missed a 1995 immigration court hearing and was ordered deported in absentia. Mortlock revealed her diagnosis of H.I.V./AIDS in 1998 and as immigration officials pushed for her deportation, Jamaica’s NY Consulate refused to issue her travel documents on the grounds that it could not provide her treatment.

In 2003 she won a judge’s order to be released on humanitarian grounds pending appeals.

But on August 11, ICE officials nabbed her again and placed her in deportation proceedings. James D. Paoli, a lawyer for the immigration agency, said her illness has no bearing on the proceedings. After more than a decade, 'she is a perfect example as to the necessity of bringing finality to proceedings,' wrote Paoli.

Since the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both in 1996, deportations of foreigners have increased exponentially. Criminal aliens, sent back to the Caribbean have been blamed for the rising crime rate in the region. – Hardbeatnews.com