United States of America v. State of California et al

Filing 104

AMICI CURIAE BRIEF by National Health Law Program (and associated parties). (Attachments: # 1 Appendix Studies cited in brief)(Coursolle, Abigail) Modified on 5/18/2018 (Benson, A.).

1
2
3
4
5
6
7
8
9
10
11

ABIGAIL K. COURSOLLE (Bar # 266646)
[e-mail]
Counsel of Record
MARTHA JANE PERKINS (Bar # 104784)
[e-mail]
SARAH GRUSIN*
[e-mail]
JOSEPH MCLEAN*
[e-mail]
NATIONAL HEALTH LAW PROGRAM
3701 Wilshire Blvd, Suite 750
Los Angeles, CA 90010
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amici Curiae
NHeLP et al.
*Not admitted in this jurisdiction

12

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

THE UNITED STATES OF AMERICA,
Plaintiff,
V.
THE STATE OF CALIFORNIA;
EDMUND GERALD BROWN JR.,
Governor of California, in his Official
Capacity; and XAVIER BECERRA,
Attorney General of California, in his
Official Capacity,
Defendants.

Case No: 2:18-cv-00490-JAM-KJN
BRIEF OF AMICI CURIAE
NHELP ET AL. IN SUPPORT OF
DEFENDANT’S OPPOSITION TO
PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION

Hearing Date: June 5, 2018
Time: 1:30 p.m.
Location: Courtroom 6, 14th floor
United States District Court,
Robert T. Matsui Courthouse
501 I Street
Sacramento, CA 95814

1

CORPORATE DISCLOSURE STATEMENT

2
3

The undersigned counsel certifies that the amici curiae National Health Law Program

4

(NHeLP); African Services Committee; American Federation of Teachers, AFL-CIO; Asian Law

5

Alliance; Association of Reproductive Health Professionals (ARHP); California Center for Rural

6

Policy; California Food Policy Advocates; California National Organization for Women;

7

California Pan-Ethnic Health Network; Center for Law and Social Policy (CLASP); Community

8
9
10
11

Catalyst; Congregation of Our Lady of Charity of the Good Shepherd, US Provinces; Disability
Rights Education and Defense Fund (DREDF); Disability Rights Legal Center; Equality
California; Human Impact Partners; Illinois Coalition for Immigrant and Refugee Rights; In Our

12

Own Voice: National Black Women's Reproductive Justice Agenda; Legal Aid Society of San

13

Mateo County; Legal Services of Southern Piedmont; Maternal and Child Health Access;

14

Medical Students for Choice; National Asian Pacific American Families Against Substance

15

Abuse (NAPAFASA); National Center for Law and Economic Justice; National Hispanic

16
17
18
19
20

Medical Association; National Institute for Reproductive Health; National Latina Institute for
Reproductive Health; National Network of Abortion Funds; National Organization for Women
Foundation; Nevada County Citizens for Choice; Northwest Health Law Advocates (NoHLA);
Physicians for Reproductive Health; Planned Parenthood Affiliates of California; Positive

21

Women's Network – USA; Public Justice Center; Sargent Shriver National Center on Poverty

22

Law; Service Employees International Union (SEIU); The National Viral Hepatitis Roundtable;

23

The New York Immigration Coalition; The Praxis Project; Western Center on Law & Poverty;

24
25
26
27

Young Women United; and YWCA San Francisco & Marin (collectively, “NHeLP et al.”), are not
subsidiaries of any other corporation and no publicly held corporation owns 10 percent or more
of any amici curiae organization’s stock.
/s/ Abigail K. Coursolle
Abigail K. Coursolle

28
i

BRIEF OF AMIC1 CURIAE
2:18-cv-00490-JAM-KJN

1

STATEMENT OF INTEREST1

2
3
4
5
6

The amici curiae are National Health Law Program (NHeLP); African Services Committee;
American Federation of Teachers, AFL-CIO; Asian Law Alliance; Association of Reproductive
Health Professionals (ARHP); California Center for Rural Policy; California Food Policy
Advocates; California National Organization for Women; California Pan-Ethnic Health

7

Network; Center for Law and Social Policy (CLASP); Community Catalyst; Congregation of Our

8

Lady of Charity of the Good Shepherd, US Provinces; Disability Rights Education and Defense

9

Fund (DREDF); Disability Rights Legal Center; Equality California; Human Impact Partners;

10
11
12
13
14
15

Illinois Coalition for Immigrant and Refugee Rights; In Our Own Voice: National Black
Women's Reproductive Justice Agenda; Legal Aid Society of San Mateo County; Legal Services
of Southern Piedmont; Maternal and Child Health Access; Medical Students for Choice;
National Asian Pacific American Families Against Substance Abuse (NAPAFASA); National
Center for Law and Economic Justice; National Hispanic Medical Association; National

16

Institute for Reproductive Health; National Latina Institute for Reproductive Health; National

17

Network of Abortion Funds; National Organization for Women Foundation; Nevada County

18

Citizens for Choice; Northwest Health Law Advocates (NoHLA); Physicians for Reproductive

19
20
21
22
23
24

Health; Planned Parenthood Affiliates of California; Positive Women's Network – USA; Public
Justice Center; Sargent Shriver National Center on Poverty Law; Service Employees
International Union (SEIU); The National Viral Hepatitis Roundtable; The New York
Immigration Coalition; The Praxis Project; Western Center on Law & Poverty; Young Women
United; and YWCA San Francisco & Marin (collectively, “NHeLP et al.”).

25
26
27

No party’s counsel authored this brief in whole or in part. No party or party’s counsel contributed
money to fund preparation or submission of this brief. No person, other than amici and amici’s counsel,
contributed money to fund preparation or submission of this brief.
1

28
1
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1
2
3

While each amicus has particular interests, together they share the mission of advancing
public health and removing barriers to health care for all people, including immigrants and their
families. Amici NHeLP et al. work on behalf of low-income populations and immigrants in

4
5

California and throughout the country to remove barriers to health care using various tools such

6

as direct legal and health services, policy advocacy, education, and litigation. Amici submit this

7

brief to provide the Court with additional information about the important public health

8

protections that SB 54, AB 450, and AB 103 provide to California residents.

9
10
11
12
13

Amici submit this brief pursuant to the Court’s March 27 and March 29, 2018 Orders
(ECF Nos. 37, 41). Amici NHeLP et al. obtained consent of both parties to file an amicus brief in
this matter. Under Federal Rule of Appellate Procedure (FRAP) 29(a)(2) and this court’s order
of March 27, 2018, adopting FRAP 29(a), no motion for leave to file is required.

14
15
16
17
18
19

INTRODUCTION^
Fear of detention and deportation is a nearly ubiquitous experience for immigrants and
their families living in the United States.2 Immigrants and their families are highly sensitive to
changes in immigration policies, and awareness that state and local entities cooperate with

20
21
22
23
24
25
26
27

^ The authors of this brief thank Brian Brooks of the National Health Law Program for his invaluable
research assistance.
2 See, e.g., Alexia Elejalde-Ruiz, Fear, anxiety, apprehension: Immigrants fear doctor visits could leave them vulnerable
to deportation, Chicago Trib., Feb. 22, 2018, http://www.chicagotribune.com/business/ct-biz-immigrationfears-hurt-health-care-access-0225-story.html; Alameda Cty. Pub. Health Dep’t, Immigration and Public
Health 3-5 (2017), http://www.acphd.org/media/470384/immigration.pdf; Lilli Mann et al., Reducing the
Impact of Immigration Enforcement Policies to Ensure the Health of North Carolinians, 77 N. Carolina Med. J. 240,
240-41 (2016), http://www.ncmedicaljournal.com/content/77/4/240.full; Consuelo Arbona et al.,
Acculturative Stress Among Documented and Undocumented Latino Immigrants in the United States, 32 Hisp. J. Behav.
Sci. 362, *13 (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4254683/pdf/nihms609057.pdf.

28
2
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

federal immigration officials greatly exacerbates these fears.3 The negative consequences of

2

living with such chronic stress, anxiety, and fear on the health and well-being of immigrants and

3

their families have been well documented.4

4
5
6
7

In California, where 27 percent of the population are immigrants, changes in immigration
enforcement policies, therefore, have sweeping public health consequences.5 The consequences
are not limited to the immigrant population. More than 4.6 million California residents

8

(approximately 12 percent of the total population) live with at least one undocumented family

9

member.6 The numbers are especially high for children: Approximately 2 million (close to one in

10

five) live with at least one undocumented family member, and nearly half of all children in the

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

See, e.g., Elisabeth Poorman, Houston Lesson: Anti-Immigrant Moves Put Public Health at Greater Risk, WBUR
CommonHealth Blog (Sep. 7, 2017), http://www.wbur.org/commonhealth/2017/09/07/houstonimmigrant-public-health; Alameda Cty. Pub. Health Dep’t, supra, note 2, at 3-5; Mark L. Hatzenbuehler et
al., Immigration Policies and Mental Health Morbidity Among Latinos: A State-Level Analysis 174 J. Soc. Sci. Med.
169, *4, *9-10 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5258771/pdf/nihms840324.pdf;
Russell B. Toomey et al., Impact of Arizona’s SB 1070 Immigration Law on Utilization of Health Care and Public
Assistance Among Mexican-Origin Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28, S31
(2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3924594/pdf/AJPH.2013.301655.pdf; Angela S.
Garcia & David G. Keyes, Ctr. Am. Prog., Life as an Undocumented Immigrant 2-3 (2012),
https://cdn.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/life_as_undocumented.pdf;
U.S. Dep’t Health & Hum. Servs., Barriers to Immigrants’ Access to Health and Human Services Programs 12
(2012), https://aspe.hhs.gov/system/files/pdf/76471/rb.pdf; Karen Hacker et al., The Impact of Immigration and
Customs Enforcement on Immigrant Health: Perceptions of Immigrants in Everett, Massachusetts, USA 73 Soc. Sci. Med.
586, *7 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3159749/pdf/nihms308839.pdf; Tara
Watson, Nat’l Bureau of Econ. Res., Inside the Refrigerator: Immigration Enforcement and Chilling Effects in
Medicaid Participation 16 (2010), http://www.nber.org/papers/w16278.
4See infra, Section II.
5 See U.S. Census Bureau, Quick Facts: California, https://www.census.gov/quickfacts/CA; Hans Johnson
& Sergio Sanchez, Public Pol’y Inst. Cal., Immigrants in California 1 (2018), http://www.ppic.org/wpcontent/uploads/jtf-immigrants-in-california.pdf.
6 See Silva Mathema, Ctr. Am. Prog., State-by-State Estimates of the Family Members of Unauthorized Immigrants
(2017) (California “Total Population”),
https://www.americanprogress.org/issues/immigration/news/2017/03/16/427868/state-state-estimatesfamily-members-unauthorized-immigrants; Am. Imm. Council, Immigrants in California 1 (2017),
https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_california.pdf.
3

28
3
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

state (roughly 4.5 million) live in immigrant families.7 The vast majority of these children are

2

U.S. citizens.8 But they too suffer health consequences from hostile immigration policies.

3
4
5
6

California has a strong interest in protecting the health and well-being of all of its
residents, and that interest tips strongly against an injunction in this case. See Alfred L. Snapp &
Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607 (1982) (“[A] State has a quasi-sovereign

7

interest in the health and well-being-both physical and economic-of its residents.”); City

8

of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 613, 655-56 (E.D. Pa. 2017) (noting that public health

9
10
11
12

goals of city policies supported enjoining DOJ policy barring such “sanctuary city” policies for
grant recipients). These widespread and evidence-based harms to a huge swath of California
residents are not counterbalanced by any of the purported, and speculative, harms that the

13

federal government asserts. In short, the balance of harms and the public interest both tip

14

strongly in favor of California, and amici urge the Court to deny the Plaintiff’s motion for a

15

preliminary injunction.

16
17

I. Enjoining SB 54 Will Increase Fear of Interactions with Local Law Enforcement,
Causing Immigrants to Forgo Treatment, Thereby Jeopardizing the Health of All
Californians.

18
19

Coordination between local law enforcement and federal immigration authorities means

20
21

that even low-stakes interactions with police—like traffic stops—can result in deportation.9

22

When cooperation is prevalent, immigrants are reluctant to drive, causing them to delay or forgo

23
24
25
26
27

See Mathema, supra, note 6 (California “Total Population”); Am. Imm. Council, supra, note 6 at 1.
supra, note 6 (compare California’s “Total Population” number of children with at least one
unauthorized family member (1,967,756), with California’s “U.S.-born Population,” number of children
with at least one unauthorized family member (1,658,456)).
9 E.g., Urban Institute, State Immigration Enforcement Policies: How They Impact Low-Income Households 2 (2017),
https://www.urban.org/sites/default/files/publication/90091/state-immigration-enforcementpolicies.pdf.
7

8 Mathema,

28
4
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

all kinds of health appointments, including “regular doctor visits, diabetes education, vaccines,

2

prenatal care, HIV education, and procurement of medications.” 10 This problem has been well

3
4
5
6
7
8

documented nationally,11 in surveys of providers,12 and locally in immigrant communities in
Massachusetts,13 North Carolina,14 and Arizona.15 Because deportation is such a serious
consequence, some immigrant communities become extremely cautious about going out in
public, even where there is no risk of deportation.16 Some immigrants have stated that the fear of
deportation means they would not seek care or drive even to obtain necessary health care.17

9

Immigrants’ reluctance to seek treatment has a negative impact on their personal health.

10

But it also has consequences for the health of Californians as a whole. Infectious diseases pay no

11

regard to immigration status. The prevention plan for many highly contagious diseases relies on

12
13
14
15
16

the concept of “population immunity”—if enough of the population is vaccinated, the entire
population becomes protected. However, if not enough people receive the vaccine, the
community is at risk. For example, the population is at risk of a measles outbreak if the vaccine
reaches less than 92 to 95 percent of the population.18 Similarly, for HIV, prevention and

17
18
Lisa J. Hardy et al., A Call for Further Research on the Impact of State-Level Immigration Policies on Public Health,
102 Am. J. of Public Health 1250, 1252 (2012),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3477996/pdf/AJPH.2011.300541.pdf.
11 Id.
12 Karen Hacker et al., Provider’s Perspectives on the Impact of Immigration and Customs Enforcement (ICE) Activity
on Immigrant Health, 23 J. Health Care Poor & Underserved 651, *5-6 (2012),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3753075.
13 Hacker et al., supra note 3, at *3.
14 Mann et al., supra note 2, at 240-41 (2016), available at
http://www.ncmedicaljournal.com/content/77/4/240.full; Scott D. Rhodes et al., The Impact of Local
Immigration Enforcement Policies on the Health of Immigrant Hispanics/Latinos in the United States, 105 Am. J. Pub.
Health 329, 322-36 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4318326/.
15 Hardy et al., supra note 10, at 1251.
16 Hacker et al, supra note 3, at *7.
17 Mann, supra note 2, at 241.
18 Kimberly Gittings & Kelly L. Matson, Establishing Herd Immunity Against Ebola Through Vaccination, 34
Vaccine 2664, 2664 (2016), attached as Exhibit A.
10

19
20
21
22
23
24
25
26
27
28

5
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

adherence to regular treatment are important not just for an individual’s health, but for the

2

population as a whole.19

3
4
5
6
7

The cure for these avoidance behaviors is a broad, public assurance to immigrants that
trivial interactions with law enforcement will not lead to detention or deportation.20 Sanctuary
cities have used similar policies to reduce health disparities between non-citizens and citizens.21
They have also created an understanding among undocumented immigrants that it is safe to take

8

care of their health.22 However, the efforts of sanctuary cities are “imperfect substitutes,” and

9

eventually run up against barriers created by state and federal law.23

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

World Health Organization, Consolidated Guidelines on the Use of Antiretroviral Drugs for Treating and
Preventing HIV Infection 255 (2d ed. 2016), https://www.ncbi.nlm.nih.gov/books/NBK374294; Jared M.
Baeten, Amplifying the Population Health Benefits of PrEP for HIV Prevention, 217 J. of Infectious Diseases 1509,
1510 (2018), attached as Exhibit B (“HIV prevention is about a best prevention plan for an individual, but
must also be about prevention for … the population more generally.”).
20 Much of the research cited in this brief recommends such a solution, see Hacker et al., supra note 3, at
*10; Mann et al., supra note 2, at 244. A global survey of anti-immigrant laws reached the same conclusion:
“[I]mmigration policy should recognize the public health risks associated with undocumented persons
not receiving medical care [and] should encourage all residents to obtain clinically effective vaccinations
and screening for prevalent infectious diseases.” Omar Martinez et al., Evaluating the Impact of Immigration
Policies on Health Status Among Undocumented Immigrants: A Systematic Review, 17 J. Immigr. Minority Health
947, *13 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4074451/.
21 A. Elizabeth Iten et al., Undocumented Immigration Status and Diabetes Care Among Mexican Immigrants in Two
Immigration “Sanctuary” Areas, 16 J. Immigr. Minority Health 229, 232-34 (2014), attached as Exhibit C
(finding that in San Francisco and Chicago, two self-designated sanctuary cities, there was no significant
difference in clinical outcomes of diabetic Mexican-Americans, whether they were undocumented
immigrants, documented immigrants, or citizens).
22 Sheyada M. Aboii, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harv. Pub.
Health Rev, Apr. 2016, http://harvardpublichealthreview.org/undocumented-immigrants-and-theinclusive-health-policies-of-sanctuary-cities/ (finding based on dozens of interviews at an immigrant
shelter in a sanctuary city in Texas: “[T]he self-understanding of undocumented immigrants is impacted
by the tone of public policy and rhetoric addressing their presence. Whether they view themselves to be
members; to be worthy of due consideration; to have a claim to the community or its resources; or to have
a say regarding their own health and well-being is influenced by the character of their surroundings.”).
23 Helen B. Marrow, The Power Of Local Autonomy: Expanding Health Care To Unauthorized Immigrants In San
Francisco, 35 Ethnic & Racial Studies 72, 86 (2012), attached as Exhibit D (noting that providers’ efforts
to treat the public regardless of immigration status would “break down” when forced to deal directly
with “a more restrictive federal and state policy climate”).
19

28
6
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

SB 54 represents an important effort by California to mimic the success of these

2

sanctuary cities. By declaring that information about individuals held in local or state custody

3
4
5
6
7
8

will not be turned over to federal immigration enforcement, California is proclaiming to
immigrants that a routine traffic stop is not likely to end in deportation. As seen in sanctuary
cities, this makes immigrants feel safe to participate in the community, including to access
health services. The public health of Californians, and the public interest, therefore favors
sustaining the existing law.

9
10

II.

11
12
13
14
15

The Balance of Harms and Public Interest Counsel the Court Against Enjoining
AB 450, Since it Protects California Residents from Chronic Fear of Deportation
and Employer Raids.
AB 450, which protects employees in the workplace and vindicates the Fourth

Amendment rights of employers by requiring judicial warrants, likewise helps immigrants feel
safe in their daily lives. The law was enacted to “assert[] the state's right and obligation to

16

protect all California residents who call California home, raise families here, and work and

17

contribute mightily to the state's economic prosperity and rich cultural tapestry.”24 The

18

legislature has a particular interest in protecting the rights of immigrant workers since 64

19

percent of California’s 10 million immigrants are in the labor force.25 The balance of harms and

20

the public interest both favor allowing AB 450 to stand.

21

AB 450 protects California residents by reducing the stress caused by fear of immigration

22
23

raids and deportation. Raids are often surprising, invasive, and violent. The after-shocks of these

24
25
26
27

Assemb. Comm. Jud., AB 450 (Chiu) – As Amended March 23, 2017, As Proposed to be Amended 1-2 (2017),
http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201720180AB450.
25 Johnson & Sanchez, supra note 5, at 1.
24

28
7
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

types of traumatic experience have lasting negative impacts for the health of workers.26

2

Numerous studies establish that fear of raids and deportation is associated with chronic stress.27

3
4
5
6
7
8

Moreover, the research establishes that this stress not only affects undocumented immigrants,
but also documented immigrants, citizen family members, and citizens in their communities
more broadly.28 Chronic stress is associated with long-term poor health outcomes among
immigrants and their families.29 It can exacerbate their existing health conditions.30 Immigrants
who experience chronic stress are also more likely to have depression and other mental health

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Nicole L Novak et al., Change in Birth Outcomes Among Infants Born to Latina Mothers After a Major Immigration
Raid, 17 Int’l J. Epidemiology 1, 8 (2017), attached as Exhibit E (finding that infants born to Latina
mothers (immigrant and US-born) were more likely to be born with low birth weights—which can be
caused by maternal stress—in the nine-month period following a nearby immigration raid, compared to a
comparable period in which there was no raid).
27 See, e.g., William D. Lopez et al., Health Implications of an Immigration Raid: Findings from a Latino Community in
the Midwestern United States, 19 J. Immigr. Minority Health 702, 705 (2017),
http://psycnet.apa.org/record/2017-18207-023; Martinez et al., supra note 19, at *7-9; Hacker et al, supra,
note 3, at *3.
28 Hacker et al, supra note 3, at *3; Am. Imm. Council, U.S. Citizen Children Impacted by Immigration Enforcement
2 (2017),
https://www.americanimmigrationcouncil.org/sites/default/files/research/us_citizen_children_impacted_
by_immigration_enforcement.pdf; Randy Capps et al., Nat’l Council of La Raza, Paying the Price: The Impact
of Immigration Raids on America’s Children, 35-36 (2007) [hereinafter Capps et al., Paying the Price],
https://www.urban.org/sites/default/files/publication/46811/411566-Paying-the-Price-The-Impact-ofImmigration-Raids-on-America-s-Children.PDF; Randy Capps et al., Urban Inst., Implications of
Immigration Enforcement Activities for the Well-Being of Children in Immigrant Families 8 (2015) [hereinafter Capps
et al., Implications], https://www.migrationpolicy.org/research/implications-immigration-enforcementactivities-well-being-children-immigrant-families.
29 Hacker et al, supra note 3, at *7, *9; Rhodes et al., supra note 14, 331. The literature on the impact of
chronic stress on immigrants is consistent with the larger body of research on the health effects of
chronic stress. See, e.g., Ronald Glaser & Janice K. Kiecolt-Glaser, Stress-Induced Immune Dysfunction:
Implications for Health, 5 IMMUNOLOGY 243, 244-49 (2005), attached as Exhibit F (chronic stress
associated with lower immunity, increased susceptibility to infectious disease, slower wound healing,
increased inflammation); Vivette Glover, Maternal Stress or Anxiety in Pregnancy and Emotional Development of
the Child, 871 British J. Psych. 105, 105 (1997), https://www.cambridge.org/core/journals/the-britishjournal-of-psychiatry/article/maternal-stress-or-anxiety-in-pregnancy-and-emotional-development-ofthe-child (maternal stress associated with lower birth weight).
30 Hardy et al., supra note 10, at 1251.
26

28
8
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

conditions.31 Chronic stress also deteriorates physical health; among immigrants, it is associated

2

with worse maternal and birth outcomes for pregnant women.32 Chronic fear in children is

3
4
5
6

especially harmful. It is associated with an increased risk of developmental delays, emotional
and behavioral issues, and mental health disorders, including Post-Traumatic Stress Disorder
(PTSD) for children with immigrant parents or caretakers.33
Raids also routinely result in family separation and detention, even for documented

7
8

immigrants who are not subject to deportation proceedings.34 These family separations, even

9

when brief, have lasting effects on the mental and behavioral health of the whole family.35 By

10

contrast, where immigrants feel a greater sense of security, health outcomes improve.36 The

11

public interest thus militates towards preserving AB 450, as it provides increased security and

12

eases fear among California residents, reducing their risk of adverse health consequences.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Martinez et al, supra, note 19 at *9; Joshua Breslau et al., Migration from Mexico to the United States and
Subsequent Risk for Depressive and Anxiety Disorders, 68 Arch. Gen. Psych. 428, 431 (2011),
https://www.ncbi.nlm.nih.gov/pubmed/21464367.
32 Novak et al., supra, note 26, at 8; Rhodes et al, supra, note 14, at 333.
33 Capps et al., Paying the Price, supra note 28, at 51; Lisseth Rojas-Flores et al., Trauma and Psychological
Distress in Latino Citizen Children Following Parental Detention and Deportation, 9 Psych. Trauma 352, 358-59
(2017), attached as Exhibit G.
34 Capps et al., Paying the Price, supra note 28, at 35-36.
35 Ajay Chaudry et al., Urban Inst., Facing Our Future: Children in the Aftermath of Immigration Enforcement ix, 4344 (2010), http://www.urban.org/research/publication/facing-our-future
(behavioral changes, such as trouble sleeping or changes in eating habits, were wide-spread in children
more than six months after a parent experienced an immigration raid); Sara Satinsky et al., Family Unity,
Family Health: How Family-Focused Immigration Reform Will Mean Better Health for Children and Families, Human
Impact Partners, 6-8, 11-12, 36 (2013),
https://www.familyunityfamilyhealth.org/uploads/images/FamilyUnityFamilyHealth.pdf.
36 Atheendar S Venkataramani et al., Health Consequences of the US Deferred Action for Childhood Arrivals
(DACA) Immigration Programme: A Quasi-Experimental Study, 2 Lancet Pub. Health e175, e178-79 (2017),
https://www.sciencedirect.com/science/article/pii/S2468266717300476; Shakeh Momartin et al., A
Comparison of the Mental Health of Refugees with Temporary Versus Permanent Protection Visas, 185 Med. J. Aust.
357, 360 (2006), https://www.ncbi.nlm.nih.gov/pubmed/17014402.
31

28
9
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

III.

2

AB 103 Protects California’s Interest in Safeguarding the Health and Safety of its
Residents in Detention Centers.
Finally, California has a strong interest in ensuring that detention centers in the State

3
4

protect the health and safety of its residents. It cannot rely on the federal government to do so.

5

Rather, immigration detention centers have proven unwilling or incapable of meeting the most

6

basic needs of the highly vulnerable population of immigrants in detention, exacerbating the

7

threats to health that initially compelled many to depart from their home countries.37

8
9
10
11

The history of health care in U.S. immigration detention facilities is checkered with
institutional neglect and harm of migrants and asylum seekers, which has caused fatal health
outcomes.38 In May of 2017 alone, the most current month for which the U.S. Immigration and

12

Customs Enforcement (ICE) has published data, three migrants died while in ICE custody,

13

including one at California’s Adelanto Correctional Facility, which itself reported three deaths

14

within a two-month period in 2017.39 At least 100 migrants died in ICE detention from 2007 to

15

2017, including 15 deaths in California facilities.40 Many of these deaths were a result of

16

medically treatable conditions, diseases, and infections that went ignored by ICE.41

17

Despite recent assertions from ICE that it has improved its standard of care, evidence

18
19

suggests otherwise. According to a 2017 Inspector General report, at a facility in Orange,

20
21
22
23
24
25
26
27

Stacey A. Tovino, The Grapes of Wrath: On the Health of Immigrant Detainees, 57 B.C. L. Rev. 167, 170 (2016).
is a product of ICE officials consistently delaying and refusing medically necessary treatments and
denying access to critical mental and physical health care, even for the child asylum seekers being
detained in adult facilities. Tovino, supra note 37, at 174, 176, 181; Det. Watch Network, Expose & Close: Theo
Lacy Detention Center 5 (2012),
https://www.detentionwatchnetwork.org/sites/default/files/reports/DWN%20Expose%20and%20Close
%20Theo%20Lacy.pdf.
39 U.S. Imm. Customs Enf’t, List of Deaths in Ice Custody (2018),
https://www.ice.gov/doclib/foia/reports/detaineedeaths-2003-2017.pdf.
40 Id.; see also Jeanne Kuang, Immigration Detention Deaths Reach Highest Total Since 2009, Houston Chron., Jan.
12, 2018, https://www.houstonchronicle.com/news/houston-texas/houston/article/Immigrationdetention-deaths-reach-the-highest-12494624.php
41 Tovino, supra note 37, at 169-170, 179.
37

38 This

28
10
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

California, detained individuals were regularly served expired and moldy meat and were

2

expected to use moldy and mildewed shower stalls, while facility officials failed to properly

3
4
5
6
7

record grievances from the detained migrants and violated ICE standards by improperly using
disciplinary segregation.42 More troubling is that the number of deaths in these facilities has
been trending upwards. Fiscal Year 2017 saw the most deaths in detention facilities in nearly a
decade; 25 percent of these deaths occurred in California.43
Moreover, ICE fails to have or enforce health care standards specific to women. Pre- and

8
9

post-natal care in detention facilities remains inadequate and threatens to cause irreparable

10

harm to the women and their children.44 In 2017, a pregnant woman detained in a California

11

facility miscarried after detention officials repeatedly denied her medical care despite numerous

12
13
14
15
16

requests for help.45 Even after the miscarriage, facility administrators refused to let her see a
doctor despite her persisting health needs.46 In March of 2018, ICE publicly announced the end
of its policy that forbade the detention of pregnant women except in “extraordinary
circumstances” and eliminated reporting requirements that record their treatment of pregnant

17
18
19
20
21
22
23
24
25
26
27

Office Inspect. Gen., Management Alert on Issues Requiring Immediate Action at the Theo Lacy Facility in Orange,
California 1,3,5,6,9,10 (2017), https://www.oig.dhs.gov/sites/default/files/assets/Mga/2017/oig-mga030617.pdf. Similarly, an investigation of California’s Theo Lacy Detention Center found moldy food and
an absence of fruits and vegetables. Det. Watch Network, supra note 38, at 5.
43 U.S. Imm. Customs Enf’t., supra note 39.
44 Am. College of Obstets. & Gyn., Committee Opinion: Health Care for Pregnant and Postpartum Incarcerated
Women and Adolescent Females, 118 Obstetrics & Gynecology 1198, *2, *3 (2011), https://www.acog.org//media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/co511.pdf; Hum.
Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration
Detention 4,17,52,53 (2009), https://www.hrw.org/sites/default/files/reports/wrd0309webwcover_1.pdf;
Michael T. Kinsella & Catherine Monk, Impact of Maternal Stress, Depression & Anxiety on Fetal Neurobehavioral
Development, 52 Clinical Obstetrics & Gynecology 425, *3, *4, *7 (2009),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3710585/.
45 Letter from Am. Civ. Lib. Union et al. to Cameron Quinn & John Roth, Dep’t Homeland Sec. 8, 9 (Nov.
13, 2017),
https://americanimmigrationcouncil.org/sites/default/files/general_litigation/complaint_increasing_numb
ers_of_pregnant_women_facing_harm_in_detention.pdf.
46 Id. at 9.
42

28
11
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

women—actions that will only increase similar occurrences as ICE detains more women during

2

their pregnancies.47

3
4
5
6
7

For those who acquire care, individual reports recount facility staff superseding doctors’
directives by unilaterally denying recommended treatments and seizing vital prescription
medications from patients.48 Independent medical doctors have cited this widespread practice
of patient neglect and “systemic indifference” as an apparent cause of several injuries in

8

California detention facilities, namely the loss of vision, the loss of mobility, and a preventable

9

death.49

10
11
12
13
14
15

For migrants, many of whom are fleeing war, conflict, or natural disaster, the immense
stress of detention in these facilities can deteriorate their mental health.50 Medical experts
report that separation from loved ones, fear of deportation, and general conditions in detention
facilities are clear causes of frustration and anxiety, which often progress into lifelong
psychological issues, such as clinical depression and PTSD.51 The detrimental effects of

16
17
18
19
20
21
22
23
24
25
26
27

U.S. Imm. Customs Enf’t, ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees (Dec. 14,
2017), https://www.ice.gov/sites/default/files/documents/Document/2018/11032_3_PregnantDetaines.pdf;
U.S. Imm. Customs Enf’t, FAQs: Identification and Monitoring of Pregnant Detainees,
https://www.ice.gov/faqs-identification-and-monitoring-pregnant-detainees (last visited May 11, 2018)
(“ICE has ended the presumption of release for all pregnant detainees.”); see also Letter from
18MillionRising.org to Thomas D. Homan, U.S. Imm. Customs Enf’t (Apr. 11, 2018),
https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/ICE%20signon%20letter%20FINAL%204.11.18.pdf.
48 Hum. Rights First, Ailing Justice: New Jersey Inadequate Healthcare, Indifference, and Indefinite Confinement in
Immigration Detention, 6-7 (2018) https://www.humanrightsfirst.org/sites/default/files/Ailing-JusticeNJ.pdf.
49 Id. at 2; Hum. Rights Watch, Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration
Detention 1, 27, 38-40, 54-56 (2017), [hereinafter Hum. Rights Watch, Systemic Indifference],
https://www.hrw.org/sites/default/files/report_pdf/usimmigration0517_web_0.pdf.
50 Kenneth E. Miller & Andrew Rasmussen, War Exposure, Daily Stressors, and Mental Health in Conflict and
Post-Conflict Settings, 70 Soc. Sci. Med. 7, 11-12 (2010), attached as Exhibit H.
51 Derrick Silove, Zachary Steel & Richard F. Mollica, Detention of Asylum Seekers: Assault on Health, Human
Rights, and Social Development, 357 The Lancet 1436, 1436-37 (2001),
https://pdfs.semanticscholar.org/00c0/35b22fc12fadb531fe5371c7111342d7eeaa.pdf; Hum. Rights First,
supra note 48, at 1, 8; Physicians Hum. Rights et al., From Persecution to Prison: The Health Consequences of
47

28
12
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

detention on the mental health of migrants and asylum seekers intensifies with time.52

2

Detention officials, including those in California, use solitary confinement to quarantine medical

3
4
5
6
7

patients, as well as to punish, which actually worsens health and can increase the likelihood of
patient death.53 In one survey of asylum seekers in U.S. detention, 77 percent had clinically
significant symptoms of anxiety, 86 percent had symptoms of depression, and 50 percent had
symptoms of PTSD, all of which increased in prevalence with the length of detention.54 In a

8

follow-up survey, participants who were no longer detained had reduced psychological

9

symptoms, while individuals still in custody were more distressed than before. 55

10
11

Several investigations have also found inconsistent medical documentation of detained
patients and incomplete administrative information on medical costs.56 Among numerous

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Detention for Asylum Seekers 55-56, 83-85 (2003), https://s3.amazonaws.com/PHR_Reports/persecution-toprison-US-2003.pdf; Martinez et al, supra note 19, at *9; Etienne V Langlois et al., Refugees: Towards Better
Access to Health-Care Services, 387 The Lancet 319, 320 (2017),
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)00101-X/fulltext; Zachary Steel et
al., Impact of Immigration Detention and Temporary Protection on the Mental Health of Refugees, 188 British J.
Psychiatry 58, 61, 63 (2006) https://www.cambridge.org/core/journals/the-british-journal-ofpsychiatry/article/impact-of-immigration-detention-and-temporary-protection-on-the-mental-health-ofrefugees.
52 Hum. Rights First, supra, note 48, at 8. Physicians Hum. Rights et al., supra note 51, at 55-56; Steel et al.,
supra note 51, at 58-60, 63.
53 Hum. Rights First, supra note 48, at 5-6; Det. Watch Network, supra note 38, at 5; Hum. Rights Watch,
Systemic Indifference, supra note 49, at 40-41, 73-76, 96. A DHS review reported insufficient recording of
individual segregation of individuals with mental health conditions and no institutional ability to review
the safety of this practice. Office Inspect. Gen., ICE Field Offices Need to Improve Compliance with Oversight
Requirements for Segregation of Detainees with Mental Health Conditions, 1, 4-5 (2017),
https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-17-119-Sep17.pdf.
54 Allen S. Keller et al., Mental Health of Detained Asylum Seekers, 362 Lancet 1721, 1722 (2003), attached as
Exhibit I. Over one-quarter of these detained migrants reported suicidal thoughts while detained, some
having attempted it, a troubling, pervasive issue that is underreported by ICE despite being a leading
cause of death in these facilities. Id. at 1722; see also Tovino, supra note 37, at 181-87; Megan Granski et al.,
Death Rates among Detained Immigrants in the United States, 12 Int’l J. Env. Res. & Pub. Health 14414, 14416
(2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4661656/.
55 Keller et al., supra note 54, at 1722.
56 John V. Kelly, Office Inspect. Gen., Dep’t Homeland Sec., Concerns about ICE Detainee Treatment and Care at
Detention Facilities 7 (2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf; Hum. Rights Watch, Systemic Indifference, supra note 49, at 24; U.S. Gov’t Account. Office,

28
13
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1

administrative errors, ICE’s refusal to appropriately collect basic information has allowed

2

negative health outcomes to go unseen.57 In one investigation of HIV/AIDS care in ICE-

3
4
5
6
7
8
9

supervised facilities, including a California facility, detention centers did not deliver consistent
care, risking a drug resistance that could inflict tremendous harm on the patients and the
general public.58 The facilities also improperly handled medical records and failed to protect
medical confidentiality, exposing patients to harassment due to their health status.59
The inadequate health services and conditions in U.S. immigration detention facilities
are well documented and are due in large part to the absence of accountability and oversight.60

10

In 2017, the Inspector General reported long waits for medical services, even for urgent or

11

necessary care, in numerous facilities.61 ICE has resisted calls to improve the conditions of its

12
13
14
15

facilities, despite reports of abuse from the Office for Civil Rights and Civil Liberties.62
Given the high risk of harm that detention facilities pose to California residents, and the
lack of accurate reporting and documentation from ICE itself, California has a compelling

16

interest in investigating facilities within its borders to ensure that they are protecting the health

17

and welfare of California residents.

18
19
20
21
22
23
24
25
26
27

Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care, ii,
12 (2016), https://www.gao.gov/assets/680/675484.pdf.
57 Silove, Steel & Mollica, supra, note 51, at 1437.
58 Hum. Rights Watch, Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States, 38-39
(2007), https://www.hrw.org/report/2007/12/05/chronic-indifference/hiv/aids-services-immigrantsdetained-united-states.
59 Id. at 2, 20, 46, 60.
60 Hum. Rights Watch, Systemic Indifference, supra note 49, at 79-92.
61 Kelly, supra note 56, at 7; see also Hum. Rights Watch, Systemic Indifference, supra note 49, at 45.
62 See generally, Office Civil Rights & Civil Liberties, Dep’t Homeland Sec., Fiscal Year 2015 Annual Report to
Congress (2016), https://www.dhs.gov/sites/default/files/publications/crcl-fy-2015-annual-report.pdf.

28
14
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1
2
3
4
5
6
7

CONCLUSION
California’s laws help create a safe and inclusive community for immigrants in the State,
which protects the immigrant population and the State as a whole against a myriad of
detrimental health consequences. In light of these crucial public health concerns, the balance of
harms and the public interest advise that the Federal Government’s request for an injunction
against portions of SB 54, AB 450, and AB 103 be denied.

8
9
10

DATED: May 18, 2018
Respectfully submitted,

11
12

NATIONAL HEALTH LAW PROGRAM

22

By:_/s/ Abigail K. Coursolle____________
ABIGAIL K. COURSOLLE (Bar # 266646)
[e-mail]
MARTHA JANE PERKINS (Bar # 104784)
[e-mail]
SARAH GRUSIN*
[e-mail]
JOSEPH MCLEAN*
[e-mail]
NATIONAL HEALTH LAW PROGRAM
3701 Wilshire Blvd, Suite 750
Los Angeles, CA 90010
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amici Curiae
National Health Law
Program et al.

23

*Not admitted in this jurisdiction

13
14
15
16
17
18
19
20
21

24
25
26
27
28
15
BRIEF OF AMICUS CURIAE
2:18-cv-00490-JAM-KJN

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed on May 18, 2018, through the ECF system,
and that it will be sent electronically to the registered participants as identified on the Notice of
Electronic Filing.
/s/ Abigail K. Coursolle
Abigail K. Coursolle
Senior Attorney
NATIONAL HEALTH LAW PROGRAM