The headline was enough to infuriate any privacy-loving North American.
“Disabled Woman Denied Entry To U.S. After Agent Cites Supposedly Private Medical Details,” read the topper of a recent story in the Toronto Star.
A U.S. Customs and Border Protection agent, the Star reported, had barred Canadian Ellen Richardson from boarding a November flight to New York City — unless she obtained medical clearance from a U.S.-approved doctor.
Richardson, a paraplegic, told the Star that she was advised the clearance was needed because she “had a hospitalization in the summer of 2012 for clinical depression.”
Was it a case of profiling a person with a mental illness history, as some mental health advocates have claimed? An opinion piece in The New York Times asserted as much, likening it to a past prohibition on people with HIV entering the country.
But it appears more complicated. Richardson’s border troubles were likely caused by a snarl of a seemingly outdated American law, and a Canadian database that may collect and share more information than many north of the U.S. border realized.
“My initial reaction upon reading about this was that it was shocking that we still have laws on the books that are so retrograde, given what we know now about mental illness,” says Dr. David Shern of the advocacy organization Mental Health America.
“Perhaps what happened was an unintended consequence,” he says, “but it was very much an indication of a very out-of-date law.”
Under What Authority?
One answer as to why the agent stopped Richardson can be found in the U.S. Code, the collection of the nation’s laws, in a section about “classes of aliens ineligible for visas or admission.”
Part of the 1952 Immigration and Nationality Act, the section stipulates, in part, that the U.S. shall not admit people who “have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed [our emphasis], a threat to the property, safety, or welfare of the alien or others.”
Richardson told the Toronto Star that she had attempted suicide in 2001, but that the incident wasn’t mentioned to her by the U.S. agent with whom she was dealing.
Federal regulations lay out conditions under which non-Americans who fall in that category may enter the country. They can be accompanied, for example, by a responsible family member, or can make prearrangements for “submission of a medical report” that would clear them for entry.
In Richardson’s case, where no prearrangement had been made, the U.S. agent drew on a section of the regulations that would have allowed her into the country if she could obtain a medical “statement” from a Canadian doctor approved by the U.S. Public Health Service.
Perhaps Uncommon, Still Troubling
Ira Burnim, director of the Judge David L. Bazelon Center for Mental Health Law, says that it’s difficult to gauge how often situations similar to Richardson’s occur, given a paucity of publicly available information and data on the topic.
“I recall first learning of these issues in the early 2000s,” he says, when a Canadian had problems entering the U.S. for a mental health convention in New York.
The Canadian Broadcasting Corporation in 2011 reported that “more than a dozen Canadians” had told a government advocacy office for psychiatric patients that the U.S. had prevented them from entering the country.
One, Lois Kamenitz, told the CBC and other news outlets that she was barred from entering because she had attempted suicide some years earlier. Agents told her she needed medical clearance to enter the U.S.
Police were involved in responding to both Kamenitz’s suicide attempt and to Richardson’s depression episode in 2012. That’s likely why they made it into Canada’s shared law enforcement database.
Our attempts to reach Stanley Stylianos, program manager of Canada’s Psychiatric Patient Advocate Office, by phone and email were not successful.
Burnim says those earlier incidents, as well as the recent one involving Richardson, lead naturally to the question of the breadth of the data being shared at the border.
“Very few people with mental illness are public safety risks,” he says. “A sensible process is asking about past conduct, not about a condition or treatment. Mitigation is not going to happen at the border.”
At the border, or the “port,” U.S. field officers have access to shared law enforcement databases, but not, officials say, medical histories.
Some experts say that the problem of outdated U.S. laws regarding the mentally ill appears to be compounded by the nature of data Canada collects and shares on its federal database.
Those wrestling with fixes to a worrisome situation suggest that Canada look at what it is collecting and sharing, and why; and that the U.S. modernize its laws regarding the mentally ill and entry, and subsequently change standard operating procedures at its borders.
“This is something that should have been resolved a long time ago,” says Shern of Mental Health America. “Laws like these do exactly the wrong thing — they further drive people from care.”
Says Burnim: “I don’t know why they’re making these inquiries at all. An assessment and examination of a person’s conduct at the border should be sufficient.”