Hospitals Deporting Immigrant Patients?
- in this e-mail:
(1) Hardliners Try to White-Wash Their Own Immigrant Pasts by Redefining 'Immigration'
(2) The New York Times - Immigrants Deported, by U.S. Hospitals
(3) CNN - Commentary: Killing of immigrant a senseless, barbaric act
(4) Protect Americans Abroad - Urgent Action Needed!
(5) Family Immigration Legislation Moves Forward
(6) Women Vets of Color Speak Out
(7) Iowa immigration raid case scrutinized
(8) Aliens challenging deportation cannot be imprisoned for long periods without a bail hearing
(9) latimes.com - Iowa immigration raid case scrutinized
(10) Obama Launches Massive Latino Voter Drive
(11) Gonzales aides politicized hirings, investigators find - CNN.com*
Redefining the word "immigrant" is an attempt to differentiate between those
they hate and their own grandparents.
The New York Times< br>
August 3, 2008
Immigrants Deported, by U.S. Hospitals
By DEBORAH SONTAG
JOLOMCÚ, Guatemala — High in the hills of Guatemala, shut inside the
one-room house where he spends day and night on a twin bed beneath a seriously
outdated calendar, Luis Alberto Jiménez has no idea of the legal battle that
swirls around him in the lowlands of Florida.
Shooing away flies and beaming at the tiny, toothless elderly mother who is his
sole caregiver, Mr. Jiménez, a knit cap pulled tightly on his head, remains
cheerily oblivious that he has come to represent the collision of two deeply
flawed American systems, immigration and health care.
Eight years ago, Mr. Jiménez, 35, an illegal immigrant working as a gardener
in Stuart, Fla., suffered devastating injuries in a car crash with a drunken
Floridian. A community hospital saved his life, twice, and, after failing to
find a rehabilitation center willing to accept an uninsured patient, kept him
as a ward for years at a cost of $1.5 million.
What happened next set the stage for a continuing legal battle with nationwide
repercussions: Mr. Jiménez was deported — not by the federal government but
by the hospital, Martin Memorial. After winning a state court order that would
later be declared invalid, Martin Memorial leased an air ambulance for $30,000
and “forcibly returned him to his home country,” as one hospital
administrator described it.
Since being hoisted in his wheelchair up a steep slope to his remote home, Mr.
Jiménez, who sustained a severe traumatic brain injury, has received no
medical care or medication — just Alka-Seltzer and prayer, his 72-year-old
mother said. Over the last year, his condition has deteriorated with routine
violent seizures, each characterized by a fall, protracted convulsions, a loud
gurgling, the vomiting of blood and, finally, a collapse into unconsciousness.
“Every time, he loses a little more of himself,” his mother, Petrona
Gervacio Gaspar, said in Kanjobal, the Indian dialect that she speaks with an
Mr. Jiménez’s benchmark case exposes a little-known but apparently
widespread practice. Many American hospitals are taking it upon themselves to
repatriate seriously injured or ill immigrants because they cannot find nursing
homes willing to accept them without insurance. Medicaid does not cover
long-term care for illegal immigrants, or for newly arrived legal immigrants,
creating a quandary for hospitals, which are obligated by federal regulation to
arrange post-hospital care for patients who need it.
American immigration authorities play no role in these private repatriations,
carried out by ambulance, air ambulance and commercial plane. Most hospitals
say that they do not conduct cross-border transfers until patients are
medically stable and that they arrange to deliver them into a physician’s
care in the ir homeland. But the hospitals are operating in a void, without
governmental assistance or oversight, leaving ample room for legal and ethical
transgressions on both sides of the border.
Indeed, some advocates for immigrants see these repatriations as a kind of
international patient dumping, with ambulances taking patients in the wrong
direction, away from first-world hospitals to less-adequate care, if any.
“Repatriation is pretty much a death sentence in some of these cases,” said
Dr. Steven Larson, an expert on migrant health and an emergency room physician
at the Hospital of the University of Pennsylvania. “I’ve seen patients
bundled onto the plane and out of the country, and once that person is out of
sight, he’s out of mind.”
Hospital administrators view these cases as costly, burdensome patient
transfers that force them to shoulder responsibility for the dysfunctional
immigration and health-care systems. In many cases, they say, the only
alternative to repatriations is keeping patients indefinitely in acute-care
“What that does for us, it puts a strain on our system, where we’re unable
to provide adequate care for our own citizens,” said Alan B. Kelly, vice
president of Scottsdale Healthcare in Arizona. “A full bed is a full bed.”
Medical repatriations are happening with varying frequency, and varying degrees
of patient consent, from state to state and hospital to=2 0hospital. No government
agency or advocacy group keeps track of these cases, and it is difficult to
A few hospitals and consulates offered statistics that provide snapshots of the
phenomenon: some 96 immigrants a year repatriated by St. Joseph’s Hospital in
Phoenix; 6 to 8 patients a year flown to their homelands from Broward General
Medical Center in Fort Lauderdale, Fla.; 10 returned to Honduras from Chicago
hospitals since early 2007; some 87 medical cases involving Mexican immigrants
— and 265 involving people injured crossing the border — handled by the
Mexican consulate in San Diego last year, most but not all of which ended in
Over all, there is enough traffic to sustain at least one repatriation company,
founded six years ago to service this niche — MexCare, based in California
but operating nationwide with a “network of 28 hospitals and treatment
centers” in Latin America. It bills itself as “an alternative choice for
the care of the unfunded Latin American nationals,” promising “significant
saving to U.S. hospitals” seeking “to alleviate the financial burden of
Many hospitals engage in repatriations of seriously injured and ill immigrants
only as a last resort. “We’ve done flights to Lithuania, Poland, Honduras,
Guatemala and Mexico,” said Cara Pacione, director of social work at Mount
Sinai Hospital in C hicago. “But out of about a dozen cases a year, we
probably fly only a couple back.”
Other hospitals are more aggressive, routinely sending uninsured immigrants,
both legal and illegal, back to their homelands. One Tucson hospital even tried
to fly an American citizen, a sick baby whose parents were illegal immigrants,
to Mexico last year; the police, summoned by a lawyer to the airport, blocked
the flight. “It was horrendous,” the mother said.
Sister Margaret McBride, vice president for mission services at St. Joseph’s
in Phoenix, which is part of Catholic Healthcare West, said families were
rarely happy about the hospital’s decision to repatriate their relatives.
But, she added, “We don’t require consent from the family.”
In a case this spring that outraged Phoenix’s Hispanic community, St.
Joseph’s planned to send a comatose, uninsured legal immigrant back to
Honduras, until community leaders got lawyers involved. While they were
negotiating with the hospital, the patient, Sonia del Cid Iscoa, 34, who has
been in the United States for half her life and has seven American-born
children, came out of her coma. She is now back in her Phoenix home.
“I can think of three different scenarios that would have led to a fatal
outcome if they had moved her,” John M. Curtin, her lawyer, said. “The good
outcome today is due to the treatment that the hospital provide d —
reluctantly, and, sadly enough, only in response to legal and public
Unlike Ms. Iscoa and Mr. Jiménez, most uninsured immigrant patients in
repatriation cases do not have advocates fighting for them, and they are
quietly returned to their home countries. Sometimes, their families accept that
fate because they are told they have no options; sometimes they are grateful to
the hospital for paying their fare home, given that other hospitals leave it to
relatives or consulates to assume responsibility for the patients.
Mr. Jiménez’s case is apparently the first to test the legality of
cross-border patient transfers that are undertaken without the consent of the
patients or their guardians — and the liability of the hospitals who
“We’re the rhesus monkey on this issue,” said Scott Samples, a spokesman
for Martin Memorial.
A Life-Changing Accident
Mr. Jiménez’s journey north was propelled by the usual migrant’s dreams.
When he pledged thousands of dollars to pay the smuggler who delivered him to
the United States, he envisioned years of labor on the lawns of affluent
America and then a payoff: the means to buy land of his own, to cultivate his
own garden, back in Guatemala.
But fate — in the person of Donald Flewellen, a pipe welder with a drug
problem and a long criminal record — intervened. At lunchtime on Feb. 28,
2000, Mr. Flewellen was loitering in the parking lot of a Publix supermarket in
Palm Beach Gardens, Fla., when the employees of an irrigation company ran
inside, leaving the keys in their van. Seizing the moment, Mr. Flewellen, a
thorn in the side of local prosecutors with at least 14 arrests, jumped into
the van and drove off.
In the next few hours, Mr. Flewellen consumed enough alcohol to produce a
blood-alcohol level four times higher than the legal limit. But drive he did,
along the back roads that connect the affluent Treasure Coast to the
agricultural interior where Guatemalan Mayan immigrants have settled in a
place, coincidentally, called Indiantown.
About 4 p.m., Mr. Flewellen was heading east on a rural road just as Mr.
Jiménez and three compatriots were returning home from a day of landscaping.
His stolen van and their 1988 Chevrolet Beretta crashed head-on, instantly
killing two of the Guatemalans and severely injuring the driver and Mr.
Jiménez, a back-seat passenger.
Identified first as John Doe, Mr. Jiménez arrived by ambulance at Martin
Memorial, a not-for-profit hospital on the banks of the St. Lucie River in
Stuart. He was unconscious and in shock from extensive bleeding, with two
broken thigh bones, a broken arm, multiple internal injuries, a terribly
lacerated face and a severe head injury. A doctor noted his prognosis as
But Mr. Jiménez, after intensive surgical and medical20intervention, survived.
“He was no longer Luis; he was another person,” Montejo Gaspar Montejo, his
cousin by marriage, said, describing a previously husky and industrious laborer
who was also a soccer enthusiast. “He didn’t talk. He didn’t understand
anything. He stayed curled up in a ball. But he was alive.”
During that time, Martin Memorial asked Michael R. Banks, a local lawyer who
specializes in estate planning, to set up a guardianship for Mr. Jiménez. “I
said, ‘Sure, what can come of such a case?’ ” Mr. Banks said. “Then it
took on a life of its own. They probably regret they ever called me.”
Mr. Jiménez, whose common-law wife and two children remained in Guatemala, had
been living for just under a year with Mr. Gaspar’s family. Mr. Gaspar, who
works in golf-course maintenance, agreed to serve as guardian.
At first, things were amicable. In the summer of 2000, Mr. Jiménez was
transferred to a nursing home in Stuart, which may have accepted him because an
insurance payout was possible.
Mr. Flewellen, who eventually pleaded guilty to D.U.I. manslaughter, D.U.I.
injury and grand theft auto, was not insured. But the Guatemalan families
sought to hold the irrigation company liable since its employees left the keys
in the car. Their lawsuit ultimately failed.
In the nursing home, Mr. Jiménez began wasting away. His relatives grew
anx ious. Then, Robert L. Lord Jr., Martin Memorial’s vice president of legal
services, said, “Mr. Jiménez was put back on our doorstep.”
He arrived by ambulance, this time emaciated and suffering from ulcerous bed
sores so deep that the tendons behind his knees were exposed. With infection
raging, “the question to be answered is if the patient’s condition is
terminal,” a doctor wrote in his file.
Again, Martin Memorial’s doctors provided life-saving care. Hospitals are
mandated to treat and stabilize anyone suffering from an emergency medical
condition, and the federal government does provide emergency Medicaid coverage
for illegal and new immigrants.
But hospitals say that emergency Medicaid covers only a small fraction of those
expenses: $80,000 in Mr. Jiménez’s case, according to court papers.
Mr. Jiménez remained in a vegetative state, coiled in a fetal position, for
“one year, two months and 15 days,” Mr. Gaspar said with precision.
Stunning his relatives and medical officials, though, Mr. Jiménez gradually
woke up and started interacting with the world. “One day,” Mr. Gaspar said
in Spanish, “we arrived for a visit, and he said to me, ‘You are
Not long afterward, the battle began between Martin Memorial and Mr. Gaspar, a
reserved man whose Indiantown living room is decorated with a “We Love
America” clock, a beach towel from the ancient city of Tikal and a hammered
metal image of the Virgin Mary.
A Hospital’s Dilemma
The average stay at Martin Memorial, a relatively tranquil hospital which
features a palm frond design in its gleaming lobby floor and white-coiffed
volunteers in its gift shop, is 4.1 days and costs $8,188. Patients rarely
Those like Mr. Jiménez who outstay their welcome are an oddity but not an
anomaly. Mr. Jiménez had a roommate from Jamaica, a diabetic who lost both
legs. Martin Memorial eventually flew him back to his native country, too.
In addition to trauma patients, there are uninsured immigrants with serious
health problems. “In our emergency room, we don’t turn anyone away,” said
Carol Plato Nicosia, the director of corporate business services. “The real
problem is if we find an underlying problem, and now we have six of them —
six patients who showed up in renal failure and that we are now seeing three
times a week for dialysis.”
One of the six, she said, voluntarily returned to Guatemala after receiving a
poor prognosis. But she showed up at Martin Memorial again after her relatives
insisted that she undertake the trek over the borders a second time because she
could not get treatment in Guatemala, Ms. Plato Nicosia said.
“I don’t want to sound heartless,” Ms. Plato Nicosia said. “A community
hospita l is going to give care. But is it the right thing? We have a lot of
American citizens who need our help. We only make about 3 percent over our
bottom line if we’re lucky. We need to make capital improvements and do
things for our community.”
Martin Memorial reported a total margin of 3.6 percent over its bottom line
last year and 6 percent in 2006. According to the most recent statewide data,
the nonprofit medical center also reported assets of $270.6 million in 2006,
with its senior executives earning more than $4 million in salaries and
Tax-exempt hospitals are expected to dedicate an unspecified part of their
services to charity cases, and Martin Memorial devoted $23.9 million in 2006,
about 3 percent, which was average for Florida, according to state data.
Mr. Jiménez was a very expensive charity case. In cases like his, where
patients need long-term care, hospitals are not allowed to discharge them to
the streets. Federal regulations require them — if they receive Medicare
payments, and most hospitals do — to transfer or refer patients to
“appropriate” post-hospital care.
But in most states, the government does not finance post-hospital care for
illegal immigrants, for temporary legal immigrants or for legal residents with
less than five years in the United States. (California and New York City are
notable exceptions; Medi-Cal, the state’s Medicaid program, spends $20
mil lion a year on long-term care for illegal immigrants, as does the Health and
Hospitals Corporation of New York City.)
Martin Memorial’s lawyer, Mr. Lord, said hospitals should not be forced to
assume financial and legal responsibility for these cases. “It should be a
governmental burden,” he said, “or the government should step in and
otherwise exercise its authority for deportation or whatever it wants to do.”
In Mr. Jiménez’s case, the hospital’s doctors determined that appropriate
post-hospital care meant traumatic brain injury rehabilitation. Much to the
surprise of the hospital staff, Mr. Jiménez had regained cognitive function to
about the level of a fourth-grade child.
Hospital discharge planners searched to no avail for a rehabilitation program
or nursing home. “Unable to take patient” was the response to many queries,
as noted in Mr. Jiménez’s files, which also state: “At this time, patient
remains a disposition problem.”
Representing Mr. Jiménez’s guardian, Mr. Banks took the position that the
hospital had a responsibility to provide Mr. Jiménez with the rehabilitation
he needed — even if it meant paying a rehabilitation center to provide it.
That, he noted, could have benefited both the hospital and the patient.
“It would have been more cost-effective for them,” Mr. Banks said, given
that daily patient costs in long-term car e are far lower than in acute-care
hospitals. “And if the rehab worked, then Luis might have become a functional
person and nobody’s charge.”
But the hospital declined, as Mr. Lord put it, “to take out our checkbook”
and subsidize his care at another institution.
“Once you take that step, for how long are you going to do that — a year,
10 years, 50 years?” Mr. Lord, the lawyer, asked.
At that point, the hospital intensified its efforts to involve the Guatemalan
government in the case. In a memorandum obtained by The New York Times, a
consular official wrote that the hospital “informed us of how expensive it
was becoming to care for Luis given that there was no insurance and that he is
illegal and that the state won’t assume responsibility for his charges.”
Eventually, the Guatemalan health minister wrote a letter assuring Martin
Memorial that his country was prepared to care for Mr. Jiménez. Gabriel
Orellana, who was foreign minister at the time but did not have direct
knowledge of the case, said the Guatemalan government was disposed to assist an
American institution. “If a hospital in Florida asks if we can take care of a
Guatemalan patient, the tendency is to say yes,” Mr. Orellana said.
Mr. Gaspar was dubious, believing the public health care system in his homeland
to be grossly inadequate.
So the guardian and the hospital r eached an impasse, and Martin Memorial
finally took the matter to court, asking a state judge to compel Mr. Gaspar to
cooperate with its repatriation plan. In June 2003, a hearing was held before
Circuit Judge John E. Fennelly.
The Journey Home
In the courthouse in Stuart, a low-key, upscale town that boasts world-class
fishing, George F. Bovie III, a lawyer for Martin Memorial, addressed the
judge: “This case is not simply a case, as some would try and paint it, of
money. This is a case about care for a man in this country illegally who has
reached maximum medical improvement at our hospital and is ready to be
discharged and whose home government” is prepared to receive and treat him.
Mr. Banks responded: “Your honor, this is a case about a hospital that has
failed to do its job properly,” adding that the hospital sought to “have
this court legitimize its patient dumping.”
By the time of the hearing, Mr. Jiménez was essentially a boarder at the
hospital, wheeling around the hallways and hanging out at the nursing stations.
Diana Gregory, a nurse who supervises case management and discharge planning,
said in a recent interview that Mr. Jiménez — “I will affectionately call
him Louie” — became “like family” to hospital staff members, who bought
him birthday cakes, knitted him blankets and gave him toys.
According to hospital records, however,20it was not all pastries and presents.
Mr. Jiménez grew depressed as he gradually became more cognizant of his
situation. He showed signs of regression, too. Emotional and behavioral
volatility often follow serious head injuries, and Ms. Gregory said that Mr.
Jiménez had developed some disturbing habits, including spitting, yelling out,
kicking and defecating on the floor.
In court, his doctor, Walter Gil, testified that Mr. Jiménez would benefit
from returning to the intimacy of his family. In his case file, the doctor had
noted that Mr. Jiménez had told him, “Estoy triste,” meaning, “I’m
Dr. Gil said he asked Mr. Jiménez, “Why are you sad when you have basically
everything that could be offered to you?” And, he said, Mr. Jiménez replied,
“I miss my family and my wife.”
Mr. Banks’s witnesses challenged what they described as Guatemala’s vague
offer to care for Mr. Jiménez.
Dr. Miguel Garcés, a prominent Guatemalan physician and public health
advocate, said in a deposition that serious rehabilitation “is almost
nonexistent” in Guatemala outside private facilities. He predicted that Mr.
Jiménez would be taken in and then released from the country’s one public
rehabilitation hospital within a matter of weeks.
“I don’t want him to go home and die,” Dr. Garcés said.
“Nobody wants h im to go home and die,” the hospital’s lawyer responded.
A few weeks later, Judge Fennelly ruled. “This Court,” he wrote, “sails
on uncharted seas.” He acknowledged that his decision might provoke dissent
but opined, “As Aquinas once stated, ‘The good is not the enemy of the
perfect,’ ” inverting and misattributing Voltaire’s famous quote, “The
perfect is the enemy of the good.”
And then he granted the hospital’s petition, ordering that Mr. Gaspar stop
“frustrating” the hospital’s plan to “relocate the ward” back to
Mr. Banks was stunned. He filed a notice of appeal and asked for a stay of the
court’s order while the appeal was pending. The judge asked the hospital to
file a response by 10 a.m. on July 10 before he ruled on the stay.
Four and a half hours before that response was due, shortly before daybreak on
July 10, 2003, an ambulance picked up Mr. Jiménez at the hospital and drove
him to the St. Lucie County airport, where an air ambulance waited to transport
him back to Guatemala. Mr. Gaspar was not apprised.
“We went to see him at the hospital, and his bed was empty,” he said.
The hospital’s lawyer declined to comment on why the hospital did not wait
for the judge to rule on the stay.
Diana Gregory, the nurse, traveled to Guatemala with Mr. Jiménez, bringing a
wheelchair, a week’s worth of medications, “lunch/snacks/juices/treats,”
and an emergency passport signed with a fingerprint, according to discharge
records. Mr. Jiménez wore a Florida Marlins cap and carried a toy cellphone.
During the flight, the records said, Mr. Jiménez dozed, paged through picture
books, pushed the window shade up and down and pointed outside, saying,
“Look, look!” When he arrived in Guatemala, an ambulance took him to the
National Hospital for Orthopedics and Rehabilitation, which occupies the
converted stables of an old villa in the historic center of the capital city.
Ms. Gregory accompanied him there, turned over his records and toured the
hospital. In a recent interview, Ms. Gregory said she was impressed by the
place and especially by the staff’s pride in it, despite equipment that
looked “like it could have been donated to the Smithsonian.” She added,
“That facility could have taken care of me any day.”
While Ms. Gregory was taking her tour, Mr. Jiménez was holding court,
according to her notes in his file, “telling everyone that he was from Miami,
Florida, and showing them his toy cat.” At her request, a physician told Mr.
Jiménez in Spanish “that he would be staying with his new friends in
Guatemala and that I was leaving.” His response, according to her notes:
“O.K., O.K., adiós.9 D
Glad that she had helped reunite Mr. Jiménez with his homeland, she said, “I
left Guatemala quiet in my heart.”
Care in Guatemala
Immaculately clean but dilapidated, Guatemala’s National Hospital for
Orthopedics and Rehabilitation operates on a shoestring budget of approximately
$400,000 a year, according to Dr. Harold Von Ahn, who was director when Mr.
Half the hospital is devoted to orthopedic care and the other half serves as an
“asylum” for profoundly disabled Guatemalans. Although it is the only
public rehabilitation hospital in the country, it dedicates just 32 beds to
rehabilitation and does not offer the specialized brain injury treatment that
Mr. Jiménez needed.
The Guatemalan foreign ministry said that it knew of 53 repatriations by
American hospitals in the last five years. During a visit by The Times to the
National Hospital in June, the most recent arrival was an 18-year-old, Diana
Paola Miguel, transported there by the University Medical Center in Tucson nine
days after a van accident crushed her pelvis, which the Arizona hospital
repaired. Supine on a gurney, she Ms. Paola was too tremblingly upset to talk.
Dr. Von Ahn said he believed that American hospitals were dumping patients that
should be their responsibility. “It’s the same as the classic fall on the
stairs, right?” he said. “You go to my home, you fall on my stairs an d then
you sue me. I am responsible.”
Shortly after Mr. Jiménez arrived, the Guatemalan hospital contacted his
common-law wife, Fabiana Domingo Laureano, who lived in the city of Antigua
with their two young sons, and asked her to come get him. Ms. Domingo, who was
27 at the time, was shocked to learn that her husband was back and terrified by
the request. Then as now, she was eking out a living, selling traditional woven
clothing in a marketplace while sharing a spare, concrete room with her sons in
her parents’ humble home.
“I was already living from hand to mouth,” she said in an interview in
Antigua, where her sons now supplement her income by selling cigarettes after
school. “How could I possibly have given him what he needs?”
The couple met as teenagers in the highland village of Soloma. In the
mid-1990s, Mr. Jiménez migrated with his wife’s family to Antigua, a
volcano-ringed colonial city where tourism sustains the local economy. While
she sold clothing, Mr. Jiménez worked as a bus driver’s assistant. Together,
they earned about $6 a day, which was not enough to support their family, so
Mr. Jiménez, with his wife’s brother, Francisco Gaspar, decided to follow a
well-traveled path to the north. That is when he changed his name from Gervacio
Gaspar to Luis Jiménez, which is how he is now known, even by his family.
After pledging to pay a coyote, or smuggler, about $2,000 each to ferry them
into the United States, they crossed into California under cover of darkness
and made their way to Encinitas, where Mr. Jiménez’s older brother lived,
Mr. Gaspar said.
After the two men failed to find regular work, Mr. Gaspar began suffering panic
attacks and returned to Guatemala; Mr. Jiménez decided to try his luck in
“Lamentably,” Mr. Gaspar said, “luck eluded him.”
After the hospital contacted Ms. Domingo, Telemundo, the Spanish-language
network, called Ms. Domingo and offered to take her to Guatemala City. Shortly
thereafter, the network showed her reunion with her husband.
“You are Maria by chance?” Mr. Jiménez said to his wife as the television
“Fabiana,” she replied. Their two sons stood by her side, wide-eyed.
A few weeks later, Dr. Von Ahn said, the hospital discharged Mr. Jiménez
“because we needed the bed,” transferring him to another public hospital,
San Juan de Dios. That is where Mr. Jiménez’s brother, Enrique Lucas
Gervacio, found him when he made his way down from the mountains by bus.
“He was lying in the hallway on a stretcher, covered in his own excrement,”
Mr. Lucas said. “So we cleaned him up and we brought him home.”
In Favor of Jiménez
In May, 2004, a Florida appeals court overruled Ju dge Fennelly.
The Fourth District Court of Appeal found that the Florida state judge had
overstepped his bounds because deportation is the prerogative of the federal
government. The court also declared that no evidence supported the hospital’s
assertion that Mr. Jiménez would receive appropriate care in Guatemala; the
discharge plan, the ruling said, was not detailed enough to satisfy federal
requirements or the hospital’s own rules.
The appeals court voided the judge’s order although, given that Mr. Jiménez
was already back in Guatemala, that action came too late for him.
It might affect others, though. The decision has become what is known legally
as a case of first impression on the issue of hospital repatriations.
John DeLeon, a lawyer who advises the consulates of Mexico, Honduras and
Guatemala in Miami, said he now referred to it when he received calls from
hospitals looking to discharge seriously injured or ill immigrants.
“I now write I call my Montejo Gaspar letter,” he said. “It’s a letter
that says, ‘Listen, don’t take action to dump this individual because
you’ll be risking legal action. The law is now that hospitals can’t dump
immigrant patients without securing appropriate after-care. If somebody has a
serious illness and needs continuing care, a hospital can’t simply discharge
them onto the street, much less put them on a plane.’ ”
Mr. DeLeon said that he was “bombarded by such cases,” adding that he was
investigating another medical repatriation by Martin Memorial, which took place
two weeks ago “behind the back of the Mexican government.”
Martin Memorial confirmed that on July 16 they flew Neptali Díaz, a severely
brain-injured patient to Mexico. A court order authorized Mr. Diaz’s transfer
to an unspecified Mexican hospital, ending the man’s 859-day, $2 million stay
at Martin Memorial.
After the ruling in Mr. Jiménez’s favor, Martin Memorial did not appeal. But
the case did not go away. The appeals court ruling set the stage for a personal
injury lawsuit, taken on by of Searcy, Denney, Scarola, Barnhart & Shipley in
West Palm Beach.
With that established firm behind him, Mr. Gaspar initiated a false
imprisonment action claiming that his cousin was essentially kidnapped by the
hospital and smuggled out of the country in a kind of medical rendition. Since
then, appeals judges have again ruled in Mr. Jiménez’s favor, stating the
hospital can be sued for punitive damages as well as for the cost of his
This infuriates Ms. Plato Nicosia, the hospital administrator, who said it was
Mr. Jiménez’s family who owes the hospital money and not vice versa.
“Should they win, we would like them to take those damages and pay his
hospital bill,” she said.
Jack Sc arola, representing Mr. Jiménez’s guardian, said that he empathized
with the hospital’s “significant economic burden” but said that it was
the “quid pro quo” of accepting Medicare and Medicaid funds to help finance
the hospital’s services. (About 45 percent of Martin Memorial’s net
operating revenues came from Medicare and Medicaid last year, based on state
“Also,” he continued, “they chose the wrong way to deal with it. The
right way would have been through the Legislature. There is no program in place
to appropriately distribute care to undocumented persons who are
catastrophically injured, and there should be. But you don’t stick a
brain-injured immigrant on a private plane and spirit him out of the country in
the predawn hours.”
Weighing Quality of Life
The journey to Jolomcú is an arduous one, as Mr. Jiménez’s new legal team
discovered when several members — a lawyer, a paralegal, a priest and a
bioethicist — first traveled there to meet him.
After a five-hour drive north from Guatemala City to Huehuetenango and then a
winding trip, filled with hairpin turns on cliff-hugging roads up and over the
Cuchumatán Mountains, they arrived at the provincial city of Soloma.
From there, the road to Mr. Jiménez’s hamlet only goes so far, and the trip
must be completed on foot, up and down a rutted dirt path20through goat-strewn
meadows. The Americans arrived at the top panting. There, awaiting them, in an
idyllically situated one-room brick house, was Mr. Jiménez, a broad grin
lighting up his face.
“The first striking thing was his disposition: He was very, very happy,”
said the Rev. Frank O’Loughlin, who pastored migrant workers in South Florida
for decades. “Then, the second thing, he was well cared for. What I did was I
got down over him and hugged him but also smelled. And there were no bedsores.
Nothing was malodorous.”
As they drove back to Huehuetenango, Marnie R. Poncy, a nurse-lawyer who runs a
bioethics law project in Palm Beach County, offered her view: “I said, ‘His
quality of life is better than it would be in an American nursing home.’ ”
“But I hazarded a guess that his longevity of existence was probably severely
curtailed,” she said.
Still, the team reached a conclusion that surprised them: “There was no real
compelling reason to think of bringing him back to Florida,” Father
O’Loughlin said. “We needed to focus on getting help to him or him to help
Help has been slow in arriving.
When The Times took the trek to visit him in late June, Mr. Jiménez had not
budged from his hilltop home since returning there and no medical professional
had visited him, either. With his mother too20frail to move him into his
wheelchair, his life had shrunken to the confines of his bed, across from his
During the visit, Mr. Jiménez, wearing a nubby Adidas hat and a ski jacket,
sat wrapped in a Guatemalan blanket; his mother, who wore a traditional woven
skirt, with a floral scarf braided through her long gray hair, stood by his
side. She patted his head; he reached out to pick lint from her sweater.
A few days prior, he had suffered a particularly violent seizure.
“He was almost dead,” his mother, Mrs. Gervacio, said in Kanjobal, which
was translated into Spanish by a school principal serving as interpreter.
“For many years, I am caring for him like he is a baby, changing his diaper,
washing him. But this is worse. I am worried to leave him alone at all.”
She is right to worry, said physicians consulted for this article. Patients
suffering seizure disorders run the risk of injuring themselves — and of
increasing their brain damage.
Still, Mrs. Gervacio does leave from time to time, she said, to go to Mass,
shutting the door behind her and hoping for the best.
“It scares me a lot when you leave, Mama!” Mr. Jiménez blurted out,
revealing that he was intently following the conversation that at first took
place as if he were not there.
Given that Mr. Jiménez’s mother’s health is failing, the family worries
abou t the future, too. And Mr. Jiménez shares their concern. “The day my
mother is no longer, what’s going to happen to me?” he said. “This is
what I have on my mind.”
Mr. Jiménez, whose memory is patchy, said he remembered nothing about his time
in the United States — not Indiantown, not his job as a gardener, not the
accident and not the hospital.
He does, remember the dreams that propelled his migration, and he expressed
them eloquently: “I headed north like a peasant with a heavy bundle on his
back, bent over, determined to better himself,” he said. “Other people had
things so I thought, ‘Why not me?’ But now I regret it. Maybe God was
punishing me for my illusions.”
“No, Luis,” the interpreter interjected, “it was just chance, an
accident, a car accident.”
In Guatemala City, Dr. Garcés, the public health advocate, said that he was
not surprised that, as he had predicted, Mr. Jiménez never received further
medical care. “That’s the usual story of patients that are released from
the National Orthopedic Hospital,” he said.
Dr. Garcés called Mr. Jiménez’s repatriation “inhumane.”
“In cases like that, if you cut the medical care, you’re hurting that
person,” Dr. Garcés said. “You’re doing just the opposite of what the
medical syst em should do. That goes against every international convention of
human rights and health. To send him to Guatemala was to send him to very poor
living and health conditions and probably he will die because of that, and
that’s not fair.”
Without evaluation, doctors cannot know what potential for rehabilitation —
or survival — Mr. Jiménez possesses.
If Mr. Jiménez’s guardian were to prevail in the lawsuit, “it would be
possible to set up a good health care arrangement for him because in private
practice we have all types of specialties that he needs,” Dr. Garcés said.
“And transportation could be arranged.” But the case could drag on for
On the day of The Times’s visit, before Mr. Jiménez ate a lunch of eggs,
tortillas and sugar water, Mr. Banks, the lawyer, gave him a present from his
cousins in Florida — a plastic bag bulging with tube socks, undershirts and
oversize sweatpants. Mr. Jiménez fingered the clothing with little interest
but when a reporter began to read him the accompanying letter in Spanish, he
snatched it excitedly from her hands.
Much to the surprise of his visitors, Mr. Jiménez, despite his brain injury,
could read. He smoothed out the yellow legal paper from Mr. Gaspar and began:
“I am sending you some little things. Luis, I hope that you like them.”
At first, Mr. Jiménez read haltingly,20then more fluidly. Later, when all his
visitors had gone outside, he read the ending aloud again to himself.
“I want to tell you,” he read, “that we miss you and love you a lot. May
God continue to bless you.”
Mr. Jiménez smiled, and repeated, softly, “May God continue to bless you.”
Pilar Conci contributed reporting.
Copyright 2008 The New York Times Company
Commentary: Killing of immigrant a senseless, barbaric act
* Story Highlights
* Illegal immigrants in America are exploited and preyed upon, Navarrette
* Navarrette: 25-year-old's death in Pennsylvania was a senseless, barbaric
* At least six attackers beat him, shouted racial and ethnic slurs, he says
* Writer: Where do people learn hate? At the dinner table
By Ruben Navarrette Jr.
Special to CNN
SAN DIEGO, California (CNN) -- To listen to the immigration debate, you would
think illegal immigrants have it easy.
Ruben Navarrette says the beating death of Luis Ramirez is dramatic proof that
lives of illegal immigrants are=2 0hard.
Ruben Navarrette says the beating death of Luis Ramirez is dramatic proof that
lives of illegal immigrants are hard.
That's nonsense. America has a long tradition of animosity toward legal
immigrants, let alone illegal ones. The undocumented are preyed upon by thugs,
cheated by swindlers, exploited by employers, harassed by Minutemen, and made
into scapegoats for society's ills by opportunistic talk radio blowhards and
cable news fear-peddlers.
The life of an illegal immigrant shouldn't be a walk in the park. But what most
Americans don't realize is that, far from being easy, that life is quite
In fact, prosecutors say, for Luis Ramirez, it was murder.
The 25-year-old undocumented immigrant from Shenandoah, Pennsylvania suffered
head injuries after he was viciously beaten July 12 by a pack of at least six
teenagers. Ramirez was left in convulsions and foaming at the mouth. His
attackers stomped him so hard that an imprint of the Jesus medallion he wore
was embedded on his chest.
Town pooh-bahs and police -- putting public relations before public safety --
at first tried to downplay the incident by insisting that this was simply an
adolescent fight with tragic and unfortunate consequences.
Would they also say that lynchings in the South were just horseplay that got
out of hand?
Sorry. You don't get off that easy. I bet just about everyone in that small
town of 5,000, northwest of Philadelphia, knows exactly what happened to Luis
That includes the retired Philadelphia cop who lives on the block where the
beating occurred; she told authorities that afterward, she heard youths warning
other Latinos to leave town or suffer the same fate as Ramirez.
And it includes Luis' 24-year-old fiancee, Crystal Dillman, who is white and
grew up in Shenandoah. Dillman, who had two children with Ramirez, told The
Associated Press: "People in this town are very racist toward Hispanic people.
They think right away if you're Mexican, you're illegal, and you're no good."
She said that her husband-to-be was often subjected to ethnic slurs, including
being called a "dirty Mexican" and told to go back to Mexico.
As it turns out, because of a senseless and barbaric act, Luis is going back to
Mexico after all -- for burial.
Authorities now allege that the thugs who beat Luis shouted racial and ethnic
epithets. They've charged 16-year-old Brandon J. Piekarsky and 17-year-old
Colin J. Walsh as adults with homicide and 18-year-old Derrick M. Donchak with
aggravated assault. All three were charged with ethnic intimidation. Another
juvenile, whom police haven't named, was charged with assault, and police are
continuing to investigate.
Meanwhile, the Mexican-American Legal Defense and Education Fund (MALDEF) has
called for the U.S. Justice Department to open a federal civil rights
investigation into the case to determine if this was a hate crime and , if so,
to prosecute the young men under federal hate crime laws. And on Wednesday, the
Justice Department announced that its civil rights division has opened a
I'll second that. If the accused are guilty, the punishment should be swift and
harsh. But government isn't the solution, because it didn't create the problem.
Where did these little monsters pick up their prejudices? You know where it
Racism begins and ends at the dinner table. And thanks to how poisonous the
immigration debate has become, some of what is being served up across America
will turn your stomach.
Ruben Navarrette Jr. is a member of the editorial board of the San Diego
Union-Tribune and a nationally syndicated columnist. Read his column here.
The opinions expressed in this commentary are solely those of the writer.
Protect Americans Abroad - Urgent Action Needed!Target: Congressional Representatives
Sponsored by: Andrew LevinThe letter below will be sent to Congressmen calling on them to support H.R. 6481 or the "Avena Case Implementation Act of 2008".This Act is in response to the International Court of Justice's Avena decision, which determined whether the Vienna Convention rights of 51 Mexican nationals had been violated when they were detained in the United States. According to the Vienna Convention, local authorities are required to notify consular officers without delay of=2 0the detainment of one of their foreign nationals. The ICJ determined that American officials had not done so, violating the foreign nationals' Vienna Convention rights. The US was ordered to provide judicial reviews to determine if those violations affected their convictions or sentences. H.R. 6481 would p rovide these Avena-mandated judicial reviews. Secretary of State Condoleezza Rice, US Attorney General Michael Mukassey, and all nine Supreme Court Justices agree that the US has an international obligation to obey the Avena decision.The impact of the "Avena Case Implementation Act of 2008" will extend to all Americans detained abroad. As the Dallas Morning News' editorial on July 29th noted:The State Department calculated that 4,456 Americans were arrested abroad in 2006, up from 3,614 in 2005. The bulk of those arrests occurred in Mexico. For an American sitting in a filthy, dark jail cell in a foreign land, it's easy to be overwhelmed by hopelessness. One thing makes the nightmare bearable: the guaranteed visit from an American consular official.But this guaranteed visit by an American consular officer is contingent on the weight foreign authorities give to the Vienna Convention right to have consular authorities notified without delay. What goes around comes around with international law, and H.R. 6481 would be noticed by foreign governments, bettering the chances that Ameri cans are ensured their rights when traveling abroad.One problem is that there is not enough time to pass H.R. 6481 before one Avena defendant, Jose Ernesto Medellin is scheduled for execution on August 5th in Texas. In order to give adequate time for H.R. 6481 to be passed and a judicial review applied to Medellin's case, the letter calls on Congressmen to support a temporary reprieve from execution. For without it, a dangerous precedent would be set that would jeopardize all Americans abroad.Nevertheless, H.R. 6481 is a necessary piece of legislation that will help bring the US back into compliance with international law, thus ensuring those same rights are granted to Americans abroad when they are most vulnerable. Sign below to show your support!------------ --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------- --------------------- --------- --------- --------- --------- --------- -
take action - Protect Americans Abroad - Urgent Action Needed!
http://www.thepetit ionsite.com/ 1/protectamerica ns
------------ --------- --------- --------- --------- --------- -
Protect Americans Abroad - Urgent Action Needed!
The letter below will be sent to Congressmen calling on them to
support H.R. 6481 or the "Avena Case Implementation Act of 2008".
This Act is in response to the International Court of Justice's Avena
decision, which determined whether the Vienna Convention rights of 51
Mexican nationals had been violated when they were detained in the
United States. According to the Vienna Convention, local authorities
are required to notify consular officers without delay of the
detainment of one of their foreign nationals. The ICJ determined that
American officials had not done so, violating the foreign nationals'
Vienna Conv ention rights. The US was ordered to provide judicial
reviews to determine if those violations affect ed their convictions or
sentences. H.R. 6481 would provide these Avena-mandated judicial
reviews. Secretary of State Condoleezza Rice, US Attorney General
Michael Mukassey, and all nine Supreme Court Justices agree that the
US has an international obligation to obey the Avena decision.
The impact of the "Avena Case Implementation Act of 2008" will extend
to all Americans detained abroad. As the Dallas Morning News'
editorial on July 29th noted:
The State Department calculated that 4,456 Americans were arrested
abroad in 2006, up from 3,614 in 2005. The bulk of those arrests
occurred in Mexico. For an American sitting in a filthy, dark jail
cell in a foreign land, it's easy to be overwhelmed by hopelessness.
One thing makes the nightmare bearable: the guaranteed visit from an
American consular official.
But this guaranteed visit by an American consular officer is
contingent on the weight foreign authorities give to the Vienna
Convention right to have consular authorities notified without delay.
What goes around comes around with international law, and H.R. 6481
would be noticed by foreign governments, bettering the chances that
Americans are ensured their rights when traveling abroad.
One problem is that there is not enough time to pass H.R. 6481 before
one Avena defendant, Jose Ernesto Medellin is scheduled for execution
on August 5th in Texas. In order to give adequate time for H.R. 6481
to be passed and a judicial review applied to Medellin's case, the
letter calls on Congressmen to support a temporary reprieve from
execution. For without it, a dangerous precedent would be set that
would jeopardize all Americans abroad.
Nevertheless, H.R. 6481 is a necessary piece of legislation that will
help bring the US back into compliance with international law, thus
ensuring those same rights are granted to Americans abroad when they
are most vulnerable. Sign below to show your support!
http://www.thepetit ionsite.com/ 1/protectamerica ns
------------ --============ ========= =======------- --------- --------- --------- -----Family Immigration Legislation Moves Forward
ASIAN AME RICAN JUSTICE CENTER APPLAUDS CONGRESSWOMAN ZOE LOFGREN'S
Recapture Bill Moves Forward
Washington, D.C. – The (AAJC) today
applauded the passage of H.R. 5882 by a vote of 8 to 1 in the United
States on Immigration, Citizenship,
Refugees, Border Security, and International Law. Co-sponsored by
Representatives Zoe Lofgren (D-CA) and Jim Sensenbrenner (R-WI), the
legislation would reclaim old and unused visas from previous fiscal
years and place them into the pool of usable visas. In addition, it
would create a "roll over" mechanism that would ensure that unused
visas in subsequent fiscal years would not be lost.
"This is a victory for advocates and
lawmakers who support20legal immigration, " said Karen. K. Narasaki,
president and executive director of AAJC. "We thank the members of
Congress who attended the markup and voted for the legislation. They
are champions for family unity and the thousands of individuals who
have been waiting for years to join their spouses and children."
Some subcommittee membe rs introduced anti-immigrant amendments and
provisions that would have gutted the legislation. For example,
(R-IA) introduced one amendment that would
have eliminated the fourth family preference category that allows
United States citizens to sponsor siblings. He also introduced another
amendment that would have allowed only individuals under the age of 40
with a college degree to immigrate to the United States.
was the only subcommittee member who voted against
the recapture provision; none of the other minority members of the
subcommittee were in attendance.
"In the absence of complete and common-sense immigration reform,
lawmakers and policymakers who want to stop immigration entirely are
not balancing the needs of future flow, immense family backlogs, and
undocumented residents," said Tuyet G. Duong, senior staff attorney of
AAJC. "Today's victory shows that America can come together and move
forward with balanced solutions for our broken immigration system."
http://lawprofessor s.typepad. com/immigration/ 2008/08/family- immigrat. html
------------ --------- --------- --------- --------- --
Aliens challenging deportation cannot be imprisoned for long periods
without a bail hearing
"The government cannot imprison for prolonged periods aliens
challenging deportation orders in an appeals court, without providing
the alien a bail hearing before a judge, a has
held. The decision by the 9th U.S. on July 25
is likely to affect dozens of cases in the West and will bolster
aliens making similar arguments in other part s of the country,
according to Ahilan Arulananeham, director of immigrants' rights for
the ACLU of Southern California." NLJ, Aug. 1, 2008.
------------ --------- --------- ------
Immigrants Deported, by U.S. Hospitals
By DEBORAH SONTAG
Many hospitals are taking it upon themselves to repatriate
seriously injured or ill immigrants because nursing homes
won’t accept them without insurance.==========================================================
Self-deportation plan criticized
"Angelica Salas, executive director of Coalition for Humane Immigrant Rights of
Los Angeles, said despite people's fear of being arrested, she doesn't expect
immigrants to come forward because they have families, jobs, homes and lives in
the U.S. "It's more of public relations for the agency that has come under
severe attack for the tactics that they have used, the violations for human
rights and the d
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