I
I am 35-year-old man without a penis with my life on the line. I have a young daughter, Vanessa, who is only 14. She is here with me today because she wanted to support me—and because I wanted her to see her father do something for the greater good, so that she will have that memory of me. The thought that her pain—and mine—could have been avoided almost makes this too much to bear. Francisco Castaneda spoke these words on October 4, 2007 before the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law during a hearing titled “Detention and Removal: Immigration Detainee Medical Care.” Mr. Castaneda died five months later from metastasized squamous cell carcinoma of the penis. His family maintains the civil case he brought against the government for its failure to provide adequate medical care while he was detained at an immigration detention center in California. The case is now before the U.S. Supreme Court, stalled on the issue of whether Mr. Castaneda’s family has standing to sue the individuals responsible for deciding that the medical procedures that could have saved his life were “elective” and not available to detainees. With over 300,000 people moving through some part of the U.S. immigrant detention system over the course of a year, problems with access to adequate medical care have the potential to affect a large number of people. The federal government provides medical care at 23 immigration detainment facilities, which house nearly half of the 33,000 immigrants that are detained on any given day. The average duration of detainment is 38 days, but some immigrants wait months or even years for their day in court. During that time, detainees are denied access to any medical care other than what is allowed by Immigration and Customs Enforcement (ICE), the agency in charge of the detention centers. ICE’s healthcare policy thus far has been to keep detainees fit for deportation, allowing non-emergency off-site doctors visits only if necessary to prevent a change in their deportation status. Fortunately, that policy is set to change in 2010 to provide detainees more access to non-emergency medical attention. These changes came too late to help Mr. Castaneda, and there is also concern that they will not help many of the detainees who need it most. The regulations set forth by ICE’s parent agency, the Department of Homeland Security, are not actually binding on ICE or its employees. They have the legal weight of suggestion, and since only one in ten detainees has a lawyer, it is likely that few would be equipped to pursue a legal remedy anyway. All federal employees are considered by the majority of Circuits in the U.S. to be protected from suit by the Federal Tort Claims Act. The success of Mr. Castaneda’s case before the Supreme Court has the potential to provide a remedy to those who have access to counsel by allowing claims against ICE employees in their individual capacity. Mr. Castaneda’s Bivens claim, or an action outside the scope of the Federal Tort Claim Act, against the doctors who treated him and the officials who denied him care in their individual capacities might have the effect of scaring the agency or Congress into action, providing some avenue of relief for detainees seeking justice. Still, a more reasonable solution is to create a binding set of rules to ensure that immigrants detained in the U.S. do not die or suffer needless pain while detained by the government because of the denial of basic medical care.