Pubdate: Sat, 27 Aug 2005
Source: New York Times (NY)
Copyright: 2005 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Nina Bernstein
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

RIGHTS AGENCY URGES U.S. NOT TO DEPORT AIDS PATIENT

The human rights arm of the Organization of American States is asking the 
United States not to deport a terminally ill AIDS patient from the Bronx 
while it reviews her claim that deportation would violate her basic right 
to life.

The patient, Andrea Marie Mortlock, 41, is a legal permanent resident of 
the United States who was convicted in 1987 of selling cocaine and has been 
fighting a criminal deportation order for a decade. She argues that 
deporting her to her native Jamaica would be "tantamount to a death 
sentence" because she could not get proper AIDS medication and treatment 
there and would face severe discrimination.

Her lawyers turned to the O.A.S., the organization for the 35 nations of 
the Western Hemisphere, in a desperate bid to halt the deportation.

The petition is the first deportation case involving AIDS to be accepted by 
the O.A.S. agency, the Inter-American Commission on Human Rights.

Advocates for human rights say it points to a larger trend: As groups like 
deportable immigrants and death row inmates are being blocked from domestic 
courts by legislators impatient with protracted appeals, international 
bodies like the O.A.S. commission, the International Court of Justice at 
The Hague, and the United Nations Committee Against Torture are expanding 
their reach to fill the gap.

"In the past it hasn't been as relevant," in countries like the United 
States and Canada, said Brian Tittemore, a staff lawyer for the commission, 
which has mainly dealt with human rights abuses in Latin American member 
states since it was founded in 1965.

"Previously people were protected under those strong national 
Constitutions. But the more you see these gaps and gray areas, the more it 
matters."

At the State Department, Olwyn Staples, a public affairs officer with the 
United States mission to the O.A.S., said officials could not comment.

The human rights commission, based in Washington, has no enforcement 
powers, but it has considerable moral authority, and an overall record of 
cooperation by member states, including the United States. Unlike other 
member states, however, the United States does not consider the 
commission's rulings legally binding.

The commission took on three out of the 57 petitions it received against 
the United States last year, out of a total of 160 petitions selected from 
among 1,329 received.

It is now eager to raise its profile among American immigration lawyers, 
Mr. Tittemore said, because the protections it offers transcend 
nationality. Though legal scholars say it is the only international forum 
where the United States responds to individual complaints, it is still 
relatively unknown outside a network of American death penalty lawyers.

In Ms. Mortlock's case, her lawyers said, a student intern working for the 
lawyers stumbled on the commission's existence during a frantic Internet 
search for ways to halt her immediate deportation. Advocates say that Ms. 
Mortlock, a former drug addict with a long history of petty larceny, turned 
her life around after a judge ordered her released from nearly three years 
in immigration detention in March 2003 over the government's objections.

At that time the Jamaican consulate in New York was refusing to issue 
travel documents for her deportation on the ground that there was no 
medical care for her illness in Jamaica.

In court filings, federal lawyers threatened sanctions against Jamaica, 
faulted Ms. Mortlock for revealing her 1998 diagnosis of H.I.V./AIDS, and 
vigorously opposed her release from a series of immigration detention 
centers in Pennsylvania and Texas.

But Sarah Loomis Cave, a lawyer for the firm Cleary Gottlieb acting without 
fee, and Olivia Cassin, a Legal Aid Society lawyer, won her release on the 
basis of a Supreme Court decision known as Zadvydas v. Davis, which held 
that indefinite detention - defined as more than six months - is 
constitutional only if the detainee is dangerous.

In some ways, Ms. Mortlock's life reflects the dark side of familiar 
immigration patterns, said her doctor, Gabriela Rodriguez-Caprio. She was a 
child when her mother went to work in the United States, leaving her behind 
in Jamaica in an abusive household.

Arriving in New York at 15, she eventually succumbed to drugs and petty 
crime to feed her habit, and then served a year in prison on the cocaine 
charge.

In and out of jobs and rehabilitation programs, she missed her day in 
immigration court in 1995 and was ordered deported in absentia. Then it was 
too late: in 1996, Congress adopted laws requiring deportation in a larger 
number of criminal cases, sharply narrowing chances for individual judicial 
review.

Since her 2003 release, Ms. Mortlock, who has a sister, a daughter, 22, and 
a son, 12, who are all United States citizens, hewed to a complicated 
medical regime as she sickened, took vocational courses, arranged her son's 
baptism, and reported regularly to federal immigration headquarters in 
Manhattan with Ms. Cassin.

She was taken into custody at the headquarters on Aug. 11, and is being 
held for deportation in Passaic County jail in Paterson, N.J.

In an affidavit to the Inter-American Commission, Dr. Rodriguez-Caprio 
wrote that medications, nutritional supplements and growth hormones that 
slow Ms. Mortlock's illness are unavailable in Jamaica, and "her missing 
these medications will lead to rapid progression and death."

Federal authorities say her illness has no bearing on their proceedings.

"It is our legal obligation to carry out a removal order that has been 
issued by a federal judge," said Tim Counts, a spokesman for Immigration 
and Customs Enforcement. "That is our job, and that is the only motivation 
for moving forward on this removal."

In papers opposing the reopening of the 1995 deportation order, James D. 
Paoli, a lawyer for the immigration agency, said that regardless of the 
hardships Ms. Mortlock faces because of her illness, after more than a 
decade, she "is a perfect example as to the necessity of bringing finality 
to proceedings."

Ms. Cassin countered, "How can you balance finality in an immigration case 
with someone's right to live?"

She cited a decision by the European Human Rights Court in the 1990's, 
overruling British courts that had approved the deportation of a drug 
smuggler dying of AIDS to his native St. Kitts, and holding that "his 
removal would expose him to a real risk of dying under most distressing 
circumstances and would thus amount to inhuman treatment."

It is the rights to life, physical integrity and protection from torture 
that have most drawn international bodies into the domestic fray.

Currently, the United Nations Committee Against Torture, which monitors 
compliance with the international Convention Against Torture, is demanding 
more information about individual cases from the United States, which 
presented a report in May.

In March 2004, the International Court of Justice in the Hague, also known 
as the World Court, ruled in a lawsuit brought by Mexico against the United 
States that 51 Mexicans on death row had a right to reconsideration of 
their convictions and sentences under the Vienna Convention, because they 
had not been informed at the time of their arrests that they could seek 
help from Mexican consular officials.

The issue had reached the United States Supreme Court in one case, but 
President Bush decided to comply with the World Court ruling, calling it an 
exercise of his foreign affairs power. And in a growing number of high 
court rulings in recent years, justices have used or cited the reasoning in 
international decisions, including some by the Inter-American Commission.

Conservatives like Richard Samp, chief legal counsel to the Washington 
Legal Foundation, deplore this development as an intrusion on the 
prerogatives of the elected branches of government.

"If Congress makes a determination that someone should be deported 
regardless of the fact that they have AIDS, then they ought to be deported, 
regardless of whether there's an opposing position by a body like the 
O.A.S.," he said.

Human rights advocates like Juan Mendez, a former president of the 
commission who now directs the International Center for Transitional 
Justice in New York, welcome the trend. "International law is not going to 
substitute for domestic policy or domestic law," he said, "but it's going 
to test the limits and push the envelope in the direction of more 
protections rather than less."
- ---
MAP posted-by: Elizabeth Wehrman