Teddy Birhanu lived in the United States as a lawful permanent resident for more than decade before the Department of Homeland Security (DHS) deported him to his native Ethiopia because of his mental health. Now back in Ethiopia, Teddy is forced to live inside a church, where he faces prolonged solitary confinement and physical mistreatment, and where the only medical care he receives is “holy water treatment.”
Teddy should never have lost his status as a permanent resident, and he certainly should not have been deported to Ethiopia. That he was reflects one of the many ways in which the U.S. immigration system discriminates against people with mental health conditions. This month, Teddy petitioned the Supreme Court for review of the rules that led to his deportation.
But even without the Court’s intervention, the Biden administration can, and must, right this wrong both for Teddy and for others like him.
Teddy has paranoid schizophrenia. In the United States he was able to manage his condition with medication. In Ethiopia, however, such medication is not available, there is only one mental health hospital in the country, and mental health conditions are treated with skepticism and derision. So, instead of care, Teddy has received beatings, prolonged isolation, and physical restraint by his family, the police, and members of his community.
In December 2016, while he was a student at Weber State University in Utah, Teddy experienced a psychological break. During this episode, he made threatening comments before entering a university building and sent a threatening email to an employee of the university. Police charged him for the threats, and he pleaded “guilty but mentally ill.” Where similar incidents involving white U.S. citizens often are brushed off, for Teddy it resulted in deportation to persecution and torture. DHS detained Teddy and eventually won an order for his removal in a hearing where the “but mentally ill” portion of his guilty plea was completely ignored.
This result was possible because, through a long series of decisions, the Board of Immigration Appeals (BIA), has turned the United States’ international treaty obligations on their head. Under the United Nations Refugee Convention, the United States may not deport a refugee to persecution or torture unless the refugee committed a particularly serious crime and is presently a danger to the community. For years, the United States has collapsed those two distinct questions into one; with the result that past criminal conduct is presumed to be dangerous even in the face of significant change in circumstances. In Matter of G-G-S- the BIA took this approach even further with its holding that “a person’s mental health is not a factor to be considered” in performing the relevant analysis. The Tenth Circuit Court of Appeals, which sits in Denver and heard Teddy’s case, deferred to the BIA’s approach even though it recognized serious flaws in its reasoning.
If Teddy’s deportation case had taken place in the Eighth or Ninth Circuit — which encompass 15 states and a significant percentage of all deportation cases nationally — the outcome would have been different. Those courts have compellingly explained why the BIA’s approach cannot be correct. Most importantly, the BIA itself has long made clear that evaluating the seriousness of a crime for purposes of affording refugee protections requires an examination of the circumstances of the conviction and the underlying facts. The Eighth and Ninth Circuit Courts correctly reasoned that whether a past crime was motivated by a mental-health condition is one such fact—and a fact that is obviously pertinent to assessing whether someone “is a danger to the community” as the law requires.
The fact that an immigrant in one part of the country can present the exact same facts to a court and get a completely different result is always problematic. When that result means the person is deported to a place where they will be tortured for having a mental illness, it is particularly intolerable. The Biden administration should acknowledge the intersectional biases that allowed for this result (discrimination against Teddy for his mental health, his race, and his status as an immigrant) and fix the issue regardless of the Supreme Court’s intervention. The administration has options: 1) Attorney General Garland could certify this case to himself (as Attorneys General Barr and Sessions did with abandon) and vacate the decision that led to this erroneous result. 2) The administration could promulgate new regulations that would resolve this problem and the broader problem of conflating past conduct with present danger. 3) Perhaps most importantly, the administration could and should enable Teddy a chance to come back to his true home in this country.
Keren Zwick is NIJC's director of litigation.