Thursday, May 1, 2014

Drug Addiction: Is Persecution Over There, Persecution Over Here?

Guest blogger: Camille Desai, second-year law student, University of San Francisco

When immigration judges define what it means to be persecuted in another country, what happens when the same definition applies to the United States government in this country?  A refugee seeking safety in the United States must convince the government that that there is a real threat of persecution in his or her homeland.  The Board of Immigration Appeals reflected on what it means to be persecuted due to membership in a particular social group:

   "[Persecution] is directed toward an individual who is a member of a group of persons all     of whom share a common, immutable characteristic. The shared     characteristic . . . might     be a shared past experience . . . whatever the common characteristic that defines the     group, it must be one that the members of the group [cannot change] . . . Only when this     is the case does the mere fact of group membership become something comparable to the     other four grounds of persecution under the Act, namely, something that either is beyond     the power of an individual to change or that is so fundamental to his identity or     conscience that it ought not be required to be changed."

Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).

Although this definition is morally and legally compelling, this conception of persecution on account of particular group membership is conspicuously absent in some specific areas of immigration law. 

Consider applying this definition to drug addicts, which are a particular social group, with a set of common, immutable characteristics.  They share past experiences in the form of repeating cycles of relapse, treatment, and recovery. They share a common neurophysiology that medical scientists can detail with MRI images, neurotransmitter levels, and clinical symptoms. These are traits that members of the group cannot directly change, any more than a diabetic patient changing their blood sugars.  Many even share comorbid conditions such as psychiatric diagnosis, which cause them to self-medicate with drugs in the first place.
The Supreme Court ruled in Robinson v. California, 370 U.S. 660 (1962), that punishing an individual for the mere status of being a drug addict violates the Eighth Amendment.  Nearly half a century later, scientific research has clearly placed drug addiction in the category of being a physical disease characterized by chemical dependency.  Research has revealed that prolonged drug use causes genetic, metabolic, structural, and cellular changes in the brain. Some drugs disrupt natural neuronal pathways in the brain that mediate positive feelings, whereas others act on pain receptors to mitigate or numb negative emotions. Scientists have learned how chronic drug administration alters chemical neurotransmission and cellular signaling in the brain, literally hijacking the ability of neurons to chemically relay normal messages with one another. The longer that drugs are taken, the more the brain physically changes in order to compensate for the chemical disruption and imbalance caused by prolonged drug use.  The brain re-invents itself in order to accommodate (and eventually rely upon) a consistent influx of external chemicals.   At a biochemical and behavioral level, drug addicts transitions from initially using drugs to feel high to needing drugs to function normally.

Under current law, a non-citizen is deportable for merely being a drug addict.  In fact, medical treatment of addiction can be used against the non-citizen in deportation proceedings as evidence of drug addiction and legal grounds for deportation. Any non-citizen who is currently, or who once was addicted to narcotics after admission to the United States is deportable by virtue of his/her legal classification as a drug addict.  While a mere user or possessor may be deported only if convicted of a drug-related crime, a non-citizen drug addict is deportable for the mere status of being an addict, even in the absence of a criminal conviction and irrespective of longstanding sobriety.  Similarly, an alien drug addict who would otherwise be eligible for admission as a prospective immigrant is rendered inadmissible for the mere condition of being addicted to drugs.

When the government uses deportation as a tool for crime management, rather than as a mere exercise of the sovereign right to exclude, deportation should be regarded as a form of punishment. Targeting non-citizens, who are members of a particular social group, with the immutable characteristic of having a brain disease, and with the shared common experience of being chronically addicted to drugs, meets the definition of persecution in the refugee context. When the common group happens to be a set of patients with a serious disease that warrants aggressive medical treatment and comes with an intrinsic set of physical and emotional challenges, the punishment feels even more inappropriate.  With the definition of persecution in mind: Why is it persecution over there, but not persecution over here?


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