As Feds Force-Feed Another Hunger Striker, Judge Raises Concern

Protesters march outside ICE’s El Paso Processing Center in June 2018. (Rudy Gutierrez/The El Paso Times via AP, File)

(CN) – In late December, just two days before Christmas, a man being held by federal immigration authorities in El Paso, Texas, was rushed to a local hospital after his breathing rate plummeted while he was having his blood drawn.

Immigration and Customs Enforcement would later claim the man had simply fainted from an “emotional response” to the needle.

But a federal judge overseeing the man’s case has since called that explanation “highly unlikely,” while a medical expert who reviewed the man’s records went even further: she concluded he almost died.

The man, an asylum seeker from Nepal – and a husband and father, one of his attorneys said – has been on a hunger strike while in ICE custody since November. His case has become the latest in a string of similar hunger strikes across the country that have prompted concern, including from the courts, about whether ICE is properly handling such medically delicate situations, particularly when it comes to the practice of force-feeding hunger strikers to keep them alive.

Courthouse News is not identifying the man at the request of his attorneys and other advocates watching his case, who say he could face reprisals in his home country if his name was revealed.

According to court documents, the man was initially detained after illegally crossing the southern border in May of last year near El Paso. An immigration judge ordered him deported back to Nepal in November, but he has remained in detention pending an appeal.

He has now been on a hunger strike for more than 100 days, notably longer than the similar hunger strikes of two Indian men who were released from ICE custody in El Paso last fall.

Like other hunger strikers, ICE has resorted to force-feeding the man through a feeding tube inserted into nose and down his throat. The man opposes the tactic and has tried, unsuccessfully, to fight it in court.

Immigrant advocates and human rights groups argue force-feeding is cruel and unethical, and those watching the Nepalese man’s case say it raises alarms about the quality of care ICE is delivering to people who are not legally considered criminals.

“To me, what they’re doing, it’s pure torture,” said Eduardo Beckett, an El Paso attorney who is pushing for the man to be released from ICE custody while his immigration appeal proceeds. Beckett said he last visited his client this week.

“He looks really sad, he looks broken, he looks down,” he said. “He’s in a wheelchair and he just looks very weak, very thin.”

An ICE spokesperson referred questions about the man’s case to the U.S. Attorney’s Office in San Antonio, which declined to comment.

The man has had a number of health problems throughout his hunger strike, court documents show, raising concerns not just for activists, but also for the federal judge tasked with reviewing the government’s requests to continue the force-feeding.

The U.S. District Court in the Western District of Texas has approved a series of 30-day authorizations for force-feeding since the man’s hunger strike began. ICE is required to have an independent doctor on hand to supervise the process, a rule that was also put in place last year after a gruesome incident involving one of the Indian hunger strikers.

A U.S. Border Patrol agent patrols along the U.S.-Mexico border near El Paso, Texas, in January 2016. (AP Photo/Russell Contreras)

In that case, a feeding tube that was inserted into asylum seeker Ajay Kumar’s nose “coiled” before reaching his stomach, which caused his nose to swell and bleed as he struggled to breathe.

In the Nepalese man’s case, U.S. District Judge David Guaderrama approved another round of force-feeding in late January. But in a lengthy order released weeks later, the judge explained that the court was not approving the force-feeding without reservations.

“After careful review of the record, the court concludes that the government barely established that the ICE policy, as applied to respondent, does not amount to punishment,” Guaderrama wrote, referring to the agency’s internal guidelines on caring for detainees.

In one instance the judge cited, the man started coughing up bloody phlegm because of throat irritation from the feeding tube.

The judge expressed doubt about ICE’s explanation that the man “fainted” during the incident just before Christmas. If he really did just pass out after seeing a needle, the impact would have been a “temporary, rapid loss on consciousness that was followed by a fairly rapid and complete recovery,” Guaderrama said in the order.

“However, the record does not indicate that respondent’s loss of consciousness was short-lasting, but instead, that respondent had to be transferred to the [hospital] and that his respiratory rate dropped to approximately a third of its normal rate,” he wrote.

The man’s medical expert in the case, a California doctor and emergency medicine professor, reviewed about 680 pages of his medical records and concluded he has received “shockingly substandard care” while in ICE custody.

Her assessment of the December incident was blunt.

“His vital signs indicated a near death condition,” Parveen Parmar wrote in a report submitted to the court. “This episode was caused by inadequate attention to repeatedly low blood pressure and a 5 lb weight loss in 5 days, likely due to severe dehydration and inadequate use of court ordered IV fluids and nasogastric feeding.”

In his order, the judge also highlighted multiple examples of “inconsistent and carelessly charted evaluations” that were described in Parmar’s report.

In one example, an unnamed ICE doctor reported that the man’s mucus membranes were “moist,” while nursing staff indicated the same day his membranes were dry, suggesting he was dehydrated.

On another day, charts from the nursing staff showed normal exam results, even though the man was showing signs of worsening hypotension and was by that point a “critically ill patient,” according to the expert’s report.

This suggested the exams “were either not done, or done in a superficial manner,” Parmar concluded.

ICE medical staff at one point even appeared confused about what language the man speaks, according to the report, stating at different times that he speaks English, Spanish, Hindi or Punjabi, when in fact his primary language is Nepali.

“While these oversights, by themselves, do not indicate that the ICE policy as applied to respondent amount to punishment, these oversights suggest the ICE medical staff’s inattention to the details of respondent’s medical condition, and thus, to the ICE policy,” Guaderrama wrote in his order.

While the judge ultimately allowed the force-feeding to continue, finding that the medical staff’s handling of the situation did not rise to the level of being unconstitutional, he did order ICE to alter its methods in order to reduce the man’s “unnecessary pain and suffering.”

The order requires ICE to consult with a nutritionist to maintain the man’s weight, to give the court a record of the nutritionist’s recommendations on a weekly basis and to ask the court for approval for any “more intrusive medical procedures” the agency decides it needs to keep the man alive.

“This is a very lengthy and detailed analysis for something like this,” Daniel Morales, an immigration law scholar at the University of Houston, said after reviewing the court order. “I think this judge saw enough frankly half-assery to sort of figure out that he didn’t trust these doctors to actually care for this patient adequately.”

Joe Veith, an El Paso attorney representing the Nepalese man in federal court, said the concerns raised by the judge in this case could push ICE to develop new procedures for handling hunger strikes.

“There’s now more and more scrutiny and heightened expectation from the courts, so I do anticipate that happening,” he said.

Still, immigrant advocates say the solution in such cases is simpler: ICE could release the hunger strikers while their immigration cases play out.

The government has argued such a move would simply inspire more hunger strikes. But Margaret Brown Vega, an immigrant advocate with the group AVID in the Chihuahuan Desert, said that fear hasn’t played out in reality.

“It’s an incredibly difficult undertaking,” she said. “If it was easy to do, everyone would be doing it.”

In his February order, Judge Guaderrama noted that federal courts generally do not have jurisdiction over immigration removal proceedings. He described the courts’ remaining options in such cases – indefinitely extending force-feeding authorizations or blocking them at the risk of a detainee starving to death – as “equally bleak.”

“But still, it only takes one misstep, either from the government or the detainee on hunger strike, for the detainee to be at a critical state and die,” Guaderrama wrote. “To date, federal courts only have limited judicial enforcement mechanisms to solve this problem.”

“The ball is really in ICE’s court,” said Nathan Craig, another advocate with AVID who has been closely watching the Nepalese man’s case. “The person we’re talking about has no violent past, he’s fleeing for his safety, and that makes it all the more grotesque.”

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