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.
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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