Could you imagine being discriminated against because you had a broken arm? Or a diagnosis of cancer? Or suffered from a concussion (like hundreds of pro sports players do every year) and were denied rights everyone else enjoys?
What if you suffered from clinical depression and have been, at past times in your life, severely depressed? Should the government be allowed to discriminate against you because of a mental health diagnosis?
The U.S. Department of Homeland Security’s agency of Customs and Border Protection apparently thinks that maybe sometimes the answer should be “yes.”
You’d think I was making this up. Sadly, I’m not.
The person who had this scary, Orwellian experience is Ellen Richardson as she dealt with an unnamed U.S. Customs and Border Protection agent who denied her entry to the U.S. after apparently discovering her 2012 hospitalization for depression. She was only passing through the U.S. to get to a planned Caribbean cruise she had booked (and tickets for).
Valerie Hauch, over at the Toronto Star has the story:
[The Border agent] cited the U.S. Immigration and Nationality Act, Section 212, which denies entry to people who have had a physical or mental disorder that may pose a “threat to the property, safety or welfare’’ of themselves or others.
The agent gave her a signed document which stated that “system checks’’ had found she “had a medical episode in June 2012’’ and that because of the “mental illness episode’’ she would need a medical evaluation before being accepted.
Now, here’s the scary part — how did U.S. officials know of that hospitalization in the first place?
U.S. authorities “do not have access to medical or other health records for Ontarians travelling to the U.S.,’’ said [Canadian] health ministry spokeswoman Joanne Woodward Fraser, adding the ministry could not provide any additional information.
After a few inquiries, we heard back from an official from the U.S. Customs and Border Protection (CBP), who couldn’t discuss this specific case, but agreed to talk on background about the procedures for entry — and possible reasons for denial of entry — into the U.S.
As Americans, we may not be fully aware of what the Customs and Border Protection agency is about. They are there to carry out the U.S. immigration law, and it is up to applicants for admission to the U.S. to bear the burden of proof to establish that they are clearly eligible to enter the United States.
Border agents have access to law enforcement databases — but no health or medical records1 — at a customs entry checkpoint. This includes police databases that two countries have a specific sharing agreement, which in this case, includes Canadian law enforcement databases.2 After querying the database, the agent can call up all law enforcement actions against a person, and determine if such records constitute a reason for not allowing admission to the person.
The CBP official said this kind of denial of admission for a mental health concern occurs “rarely” and is “very unusual.” He had no specific statistics he could provide on how often this occurs, however, nor could he name any physical disorder under which a person has ever been denied admission because such a condition posed a threat to others or themselves. (Communicable diseases are covered under a separate portion of Section 212.)
However, for a determination of denial to be made — or to suggest the person withdraw their admission application — means that the border agent has to look at the police record and make a judgment call about the person’s health or mental health. Do border agents receive any specialized training to make this call? No, admitted the official. “That’s for the panel physician to decide.” Meanwhile, the person is turned away at the border.
Piecing things together, it appears that Richardson’s 2012 hospitalization for suicidality — or some other run-in with law enforcement in Canada in the past year or so — resulted in a police record being created. That record was enough to cause the border agent to pause and suggest that Richardson instead seek approval from a panel physician in order to gain entry into the U.S.3
“In situations where an applicant for admission is allowed to voluntarily withdraw their application, they are not barred for any specific length of time,” noted the CBP official, “but must only fulfill the requirements needed to overcome all grounds of admissibility.” In other words, Richardson just needs to get the okay from a Panel Physician, and she can come into the U.S. Which hardly makes up for her treatment — as though she were a criminal — and her missing her planned cruise.
Could People Think Twice Before Calling the Police?
The worst part about this case is that it could cause people to pause and think twice before calling the police to help intervene in the future if a person is describing active suicidal thoughts and plans. A police record created in such an instance was never meant to be punitive — yet it’s being misused by others (in other countries!) to punish those who are the subject of such records. It’s a chilling reminder of the lack of privacy we have as citizens once the police become involved in our lives — even for well-meaning and potentially life-saving interventions.
Why is the U.S. discriminating against people with serious depression? Has anyone with a physical disability — you know, such as needing a wheelchair — ever been targeted by this same provision? After all, wheelchairs or canes — if used improperly — could just as readily pose a “threat to the property, safety or welfare of themselves or others.” If that seems ridiculous, it’s because it is.
In the end, this appears to an egregious use of a border agent’s power to discriminate against a person for little good reason — a more-than-year-old hospitalization for depression. Call it Big Brother making sure you don’t kill yourself while visiting our good country. Or call it a poorly-written section of the law being haphazardly and “rarely” enforced for this condition by untrained agents.
Read the full article: Disabled woman denied entry to U.S. after agent cites supposedly private medical details
- “CBP does not have access to individuals’ medical records,” the CBP official told me, “however, CBP would have access to certain law enforcement information, such as suicide attempts and missing persons, in the appropriate law enforcement databases. In the case of a known suicide attempt, the action demonstrates that the individual may pose, or has posed a threat to themselves and possibly others and, by law, can be grounds for inadmissibility to the United States based on specific U.S. law cited in the INA.” [↩]
- According to the CBP official, this is a two-way sharing arrangement, and Canada has similar grounds for disallowing entry into its country. [↩]
- The Immigration and Nationality Act and the people who enforce it don’t particularly care whether you’re just passing through the U.S. to catch a cruise. [↩]