Andrea Mortlock v. United States

Report No. 63/08, Case 12.534
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This report addresses the admissibility of a petition that alleged the United States failed to fulfill its obligations under the American Declaration on the Rights and Duties of Man (the Declaration). Petitioners included the Legal Aid Society and the International Human Rights Clinic at Washington College of Law. Petitioners alleged the United States violated the right to the preservation of health and well-being and the right to protection from cruel, infamous or unusual punishment, as guaranteed by articles XI and XXVI of the Declaration. Andrea Mortlock, a Jamaican national, was a permanent resident of the United States who had been convicted of several non-violent criminal offences. According to Petitioners, the offences were a direct result of Ms. Mortlock’s addiction to controlled substances. She and her family had resided in the country for thirty years, though she allegedly remained under threat of deportation to Jamaica. Petitioners claimed that Ms. Mortlock would be denied access to life-saving HIV/AIDS medicines if she was deported, resulting in certain death. Petitioners also claimed that Ms. Mortlock would face discrimination in Jamaica as a result of her HIV status and they noted that she had no doctor, family, friends or acquaintances in the country. Petitioners alleged deportation would thus amount to a violation of Ms. Mortlock’s right to health and right to protection from cruel, infamous or unusual punishment.

The Commission declared the petition admissible. It noted that domestic remedies in the United States did not recognize a right to health, and domestic jurisprudence had established that the Eighth Amendment to the United States Constitution (prohibiting cruel and unusual punishments) was not applicable to deportation cases.

The Commission held that the United States had not violated Ms. Mortlock’s right to preservation of health and well-being under article XI of the Declaration because Ms. Mortlock had not been denied access to health care in the United States.

However, the Commission held that deportation to Jamaica would have constituted cruel, infamous or unusual punishment under article XXVI of the Declaration. It noted that while Member States had the right to control the entry, residence and expulsion of aliens, immigration policies were required to “guarantee to all an individual decision with the guarantees of due process,” to “respect the right to life, physical and mental integrity, family, and the right of children to obtain special means of protection,” and could not “give rise to cruel, degrading and inhumane treatment nor discrimination based on race, color, religion or sex.”

The Commission declared that Ms. Mortlock’s deportation order could be considered a form of punishment because it was a direct consequence of her criminal conviction. It observed that there was “considerable discomfort” with the notion that deportation decisions should account for less favorable circumstances in the country of return, particularly when such consideration might result in a legal duty to provide “indefinite healthcare to individuals.” Nonetheless, as defined by the European Court of Human Rights in D v. United Kingdom (146/1996/767/964), “exceptional circumstances” involving “compelling humanitarian considerations,” might require determination in light of the right to due process and protection from cruel, infamous or unusual punishment in article XXVI of the Declaration. Such “exceptional circumstances” required consideration of (1) the individual’s medical condition, (2) the availability of support in the country of return, and (2) the availability of medical care in the country.

The Commission thus declared that the appropriate test was “whether the humanitarian appeal of the case [was] so powerful that it could not reasonably be resisted by the authorities of a civilized State.” This determination depended on whether an individual’s medical condition was “such that he or she should not be expelled unless it [could] be shown that the medical and social facilities that he or she undeniably [required were] actually available in the receiving state.” This was contingent upon determining whether the deportation would create “extraordinary hardship” to the deportee and her family and whether it would amount to a death sentence given two considerations: “(1) the availability of medical care in the receiving country and (2) the availability of social services and support, in particular the presence of close relatives.”

The Commission found that Ms. Mortlock’s case met this test because she was in the advanced stages of an incurable illness, she lacked a support system in Jamaica, and the country’s health care system was insufficient to meet her medical needs. The Commission also noted with great concern reports indicating people living with HIV/AIDS in Jamaica suffered from stigma and discrimination.

“[I]n exercising [the] right to expel [] aliens, the Member States must have regard to certain protections which enshrine fundamental values of democratic societies. The Commission recognizes that the individual State determines its immigration policies, although within limits such that it may not infringe upon the rights of nationals to exit and enter the country nor to settle anywhere within. This immigration policy must grant foreign nationals the right not to be deported without a decision firmly supported by the law, and it must prohibit the collective expulsion of foreign nationals, irrespective of their legal status. Likewise, the immigration policy must guarantee to all an individual decision with the guarantees of due process; it must respect the right to life, physical and mental integrity, family, and the right of children to obtain special means of protection. Finally, the execution of this immigration policy cannot give rise to cruel, degrading and inhumane treatment nor discrimination based on race, color, religion or sex.” Para. 78.

“While Ms. Mortlock’s case is not one dealing with the dignity of death, it would be illogical to confine the scope of relief to such cases. On this point, the Commission notes that due to the recent medical advancements, HIV/AIDS can be effectively and indefinitely treated by the administration of antiretroviral drugs and, therefore, in most cases while the treatment is being delivered the patient will be found in good health. However, stopping the treatment would lead to a revival of the symptoms and an earlier death. Therefore, even though the risk of death may not be so imminent in the case of Ms. Mortlock, the effects of terminating the antiretroviral treatment may well be fatal.” Para. 90.

“[T]he Commission considers that the appropriate test is whether the humanitarian appeal of the case is so powerful that it could not reasonably be resisted by the authorities of a civilized State. More specifically, the question to answer is whether, on humanitarian grounds, a person’s medical condition, is such that he or she should not be expelled unless it can be shown that the medical and social facilities that he or she undeniably requires are actually available in the receiving state. Therefore, the applicable standard will consist of whether the deportation will create extraordinary hardship to the deportee and her family and may well amount to a death sentence given two principal considerations: (1) the availability of medical care in the receiving country and (2) the availability of social services and support, in particular the presence of close relatives.” Para. 91.

“According to the information provided, conditions for people with HIV in Jamaica have improved since 2002, but the country’s health care system is still insufficient to meet Ms. Mortlock’s medical needs. Moreover of greater concerning, are the reports that people with HIV/AIDS in Jamaica suffer from stigma and discrimination.” Para. 93.

“[T]he Commission finds that knowingly sending Ms. Mortlock to Jamaica with the knowledge of her current health care regime and the country’s sub-standard access to similar health for those with HIV/AIDS would violate Ms. Mortlock’s rights, and would constitute a de facto sentence to protracted suffering and unnecessarily premature death.” Para. 94.

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