In a decision dated March 11, US District Judge Dean Pregerson in Los Angeles ruled that the family of Salvadoran immigrant Francisco Castañeda can continue to pursue a lawsuit against individual government officials for violating Castañeda's constitutional rights and can ask a jury to award punitive damages. Pregerson determined that the immigration agency's decision to withhold critical medical treatment from Castañeda while detaining him was "beyond cruel and unusual" punishment. The government had argued that its employees were immune from the lawsuit, and that federal law allowed only a suit against the government, with a nonjury trial and a $250,000 limit on damages. A spokesperson for the US attorney's office said the Justice Department might appeal Pregerson's ruling.

Castaneda first informed ICE medical staff at the San Diego Correctional Facility on March 27, 2006, that "a lesion on his penis was becoming painful and growing," Pregerson wrote. The next day, a physician assistant at the facility examined Castañeda and issued a treatment plan calling for a consultation with a urologist "ASAP" and a request for a biopsy, according to government records cited by the judge.

The government was aware that Castañeda had a family history of cancer—his mother had died of pancreatic cancer at age 39. Yet for the following 11 months, the government refused to authorize a biopsy; officials instead prescribed antihistamines, ibuprofen and extra boxer shorts to deal with discharge from the lesion. On June 7, 2006, after oncologist Dr. John Wilkinson wrote a report saying Castañeda urgently needed a biopsy because he might have penile cancer, Dr. Esther Hui, M.D., of the Division of Immigration Health Services said her agency considered a biopsy "an elective outpatient procedure" and would not admit Castañeda to a hospital. Dr. Hui never made any arrangements for an outpatient biopsy.

Hui is one of the defendants named in the case, along with the federal government and several other federal officials, including another doctor, Timothy Shack, MD. Judge Pregerson said there was compelling evidence that government doctors "purposefully mischaracterized Castañeda's medical conditions as elective in order to refuse him care" and save money.

"I tried to get medical help every day," Castañeda said in his Oct. 4, 2007 testimony at a hearing of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law looking into medical care at immigration detention centers.

In early December 2006, Castañeda was transferred to the San Pedro immigration detention center and came into contact with attorneys from the American Civil Liberties Union (ACLU), who sent a letter on Dec. 5 to multiple ICE officials urging treatment for Castañeda. After the ACLU sent several more letters, Castañeda was finally seen by a urologist on Jan. 25, 2007, and a biopsy was scheduled for early February. The immigration agency then abruptly released Castañeda a few days before the procedure. On Feb. 8, Castañeda went to the emergency room of Harbor-UCLA Medical Center where doctors determined that the cancer had spread to his lymph system. They diagnosed him with metastatic squamous cell carcinoma and amputated his penis less than a week later. Chemotherapy failed to stop the spread of the cancer, and Castañeda died at age 36 on Feb. 16, 2008, at his home in Los Angeles.

Castaneda was 10 years old when he came to the US with his mother while El Salvador was mired in a brutal US-sponsored counter-insurgency war. He was arrested in 2005 on a drug possession charge and spent eight months in state custody; he was then detained in federal jails in San Diego and San Pedro while fighting deportation proceedings and seeking political asylum. (Los Angeles Times, March 13; San Francisco Chronicle, March 14; ABC News, March 19; text of Pregerson's ruling, March 11)

Judge Pregerson blasted government health officials' "attempt to sidestep responsibility for what appears to be...one of the most, if not the most, egregious" violations of the constitutional prohibition against cruel and unusual punishment that "the court has ever encountered." At this stage of the proceedings, "the only question is whether" the plaintiffs' allegations show that government officials "were deliberately indifferent to his condition. The court finds that they do," Pregerson said. The government's own records, Pregerson noted, "bespeak of conduct that transcends negligence by miles." (LAT,
March 13)

A separate lawsuit filed last year by the ACLU on behalf of other detainees at the San Diego detention center where Castañeda was held claimed that medical treatment was routinely delayed or denied in order to reduce the cost of care. The immigrants in that case said they were denied medications for months and that chronic illnesses such as diabetes were inadequately monitored. In one example, a detainee said he was denied treatment for a cut to his foot until it developed gangrene and doctors recommended amputation. (ABC News, March 19)

Sister files suit over detainee death
Maryland resident June Everett has filed a lawsuit charging that her sister, Sandra M. Kenley, died because of inadequate medical care while in immigration detention. The lawsuit names the Pamunkey Regional Jail in Hanover County and the Hampton Roads Regional Jail in Portsmouth, as well as jail officials at both facilities, and seeks more than $2 million in damages.

Kenley had been a permanent legal resident since 1978 but was stopped because of two prior drug convictions when she tried to re-enter the US in Miami on Sept. 2, 2005, after a visit to her native Barbados. Kenley was allowed to proceed but was ordered to report to immigration officials in the Washington, DC area. When she reported on Nov. 2 she was placed in detention. Kenley was detained at the Hanover jail until Nov. 29, then transferred to the regional jail in Portsmouth, where she died on Dec. 18, 2005. An autopsy determined the cause of her death was acute coronary insufficiency due to hypertensive cardiovascular disease, said Donna Price, administrator for the medical examiner's office.

In the lawsuit, Everett states that her sister was on medication for high cholesterol and high blood pressure, and was scheduled for surgery because of a fibroid tumor, which was causing heavy bleeding. Everett testified last Oct. 4 at the House Judiciary Subcommittee hearing on medical care at immigration jails. Kenley "complained constantly about not getting her medicine," Everett said in her testimony. "When the prison officers finally gave her pills after many weeks, they were the wrong ones." (Virginian-Pilot, Hampton Roads, VA, Jan. 28)

From Immigration News Briefs, March 29

See our last post on the politics of immigration.