What is Medical Deportation for Immigrants?

October 5, 2020

Immigrants can face tremendous challenges in making a new life in the United States. They often do not speak the language and are unfamiliar with the laws. They may have fled dangerous situations in their home country and gained asylum status in the U.S. However, some may have arrived without proper documentation. This is a precarious situation that can lead to a tremendous amount of fear and avoidant behaviors.

Immigration and Customs Enforcement (ICE) is responsible for finding and detaining undocumented immigrants. ICE will issue a Notice to Appear followed by a federal immigration judge considering the case. A suspect can be detained or released on bond. There are a few defenses that the court considers valid reasons for granting the suspect relief from deportation, which include:

  • Asylum. Persecution or fear of persecution in one’s country of origin.
  • Cancellation of Removal. An individual with a long history in the U.S. or as a legal permanent resident.
  • Marriage. An individual married to a U.S. citizen.

What are Sensitive Locations?

The enforcement system is frightening to undocumented immigrants and sometimes compels them to hide from law enforcement to avoid detection. This creates additional challenges as sometimes this avoidant behavior puts the immigrant at risk. When in need of immediate medical care, failure to seek timely treatment can mean the difference between life and death. ICE has a policy to avoid enforcement actions from occurring at sensitive locations. Under this policy, the following are considered to be sensitive locations:

  • Schools and childcare facilities. These include licensed day care centers, pre-school programs, and early childhood learning programs, as well as scholastic or related activities. Schools also include post-secondary education, such as colleges.
  • Medical treatment and health care facilities. These include hospitals, doctors’ offices, accredited health clinics, and urgent care facilities.
  • Places of worship. These include all denominations, including churches, synagogues, mosques, and temples.
  • Religious and civil ceremonies. These include gatherings, such as funerals and weddings.
  • Public demonstrations. These include marches, rallies, and parades.

What Happens If an Undocumented Immigrant Requires Hospitalization?

Each hospital has its own set of practices and policies. Most hospitals specifically avoid collecting data that is not relevant or necessary. Hospitals are expected by law to treat any patient in the U.S. until his or her medical condition has been stabilized, regardless of the patient’s immigration status or ability to pay. In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals receiving federal funding to medically screen and stabilize all persons who present emergency medical conditions, including immigrants. The Act also makes it illegal to either deny treatment to emergency patients or to inappropriately transfer or discharge patients in unstable conditions.

This should be a relief to most undocumented immigrants who require hospitalization. However, the Act does not expressly address transporting seriously ill patients out of the country. This has led to circumstances where deportation of an ill patient occurs. Hospitals are designed to provide enough care to stabilize a patient; they are not designed nor suited for providing long-term care. Yet, some patients will not be well enough to simply go home after they have been treated. When it comes time to discharge patients needing further care, hospitals are legally compelled to find suitable places. In this case, insurance status comes into play.

Most, if not all, long-term care facilities require patients to have health insurance. Undocumented immigrants are not entitled to seek health insurance through the Affordable Care Act. In addition, due to their status, they cannot qualify for Medicaid. Accordingly, at the present time, undocumented immigrants do not have access to health insurance in the U.S.

Patients are considered stable where they receive treatment to assure, with reasonable medical probability, that no material deterioration of their condition is likely to result from or occur during a medical transfer. Hospitals have sought to transport stable patients to a receiving facility in the patient’s home country to ease their financial burden. This has been termed medical deportation. Unfortunately, while the patient may be stable enough to transfer, most often, the health care system in the host country is not up to the task of caring for the patients they accept.

Since the EMTALA does not specifically address medical deportations, courts have to challenge the validity of cases, where hospitals seek and obtain the consent of a host country to accept a patient and the hospital transfers the patient to a health care facility in their country of origin. Courts have held that it is unlawful for hospitals to dump immigrant patients and ensure appropriate continuing medical care at the new hospital.

A Case Study

The medical community is concerned about patient outcomes from medical deportation. One doctor who treated an undocumented immigrant for a stroke could not find care for his patient after hospitalization. The patient recovered after many weeks, was able to perform most tasks of daily life, but still needed assistance. There was no one at home who could provide care. The doctor sought to transfer the patient to a long-term facility so he could to continue rehabilitating and gaining strength. Every long-term care facility the doctor contacted refused to accept the patient due to lack of health insurance. No charity could offer to pay for insurance due to the patient’s undocumented status.

A case manager at the hospital contacted the patient’s family in Mexico and found a nearby rehabilitation facility there that was willing to accept him. Ultimately, the doctor signed off on a discharge plan that released his patient to a rehabilitation facility near the patient’s relatives. The host country agreed to the transfer, as did the receiving hospital. The sending hospital paid $50,000 for the patient’s air transport to Mexico. However, other cases are more complex and have tragic endings. Some patients lack the capacity to consent to a discharge plan, have no family in the host country willing to help, or have conditions that are only stable due to high-level medical care that is unavailable in their host country.

The American Medical Association has taken a position against gratuitous medical deportation. In 2012, it added an opinion to its Code of Medical Ethics that states a discharge plan should be developed without regard to socio-economic status, immigration status, or other clinically irrelevant considerations.

Philadelphia Deportation Lawyers at the MC Law Group, LLC Help Those Facing Medical Deportation

If you or a loved one is facing medical deportation, it is important to seek competent legal representation. Our experienced Philadelphia deportation lawyers at the MC Law Group, LLC have helped families resolve their immigration issues and we look forward to helping you as well. Call us at 215-496-0690 or complete an online form to set up a free consultation. Located in Philadelphia, we serve clients throughout the tri-state area, including Pennsylvania, New Jersey, and nationwide.