On Tuesday, a practice that had been going on for some time got some news coverage from the Washington Post and also AP news. One thinks only the federal government through the Department of Homeland Security can deport individuals, but it is not true. Hospitals can "medically repatriate" patients to a foreign country if the patients cannot pay their bills. DHS disavows jurisdiction over this practice. But what hospitals are doing is literally deporting sometimes comatose patients against their will to foreign countries. Even when hospitals call DHS to pick up an undocumented patient, DHS rarely responds because they do not wish to assume the financial cost of the immigrant.
So what's wrong with hospitals trying to save money by "repatriating" patients who can't pay and why is this issue in litigation now? First, even Dzhokar Tsarnaev was read his Miranda rights and got his bedside hearing when he was conscious, not when he was out cold, so that he could understand what is happening to him and so he could be cognizant of his rights. At the short bedside hearing the Judge Bowler concluded, "the defendant is alert, mentally competent, and lucid." The judge put that in the record because Tsarnaev's mental competency is important to the proceeding of the rest of the trial in his case. When a hospital repatriates a comatose or severely sedated person, they are not in a mental state to be aware of what is going on much less be competent to waive their rights.
Second, the practice is not consistent with U.S. immigration law and international laws. The U.S. has signed international treaties that it will not return a person to their home country if that person faces a "well-founded fear of persecution." The determination of whether a person meets that legal standard is made through a hearing with either an asylum corps officer or an immigration judge and can be appealed theoretically up to the Supreme Court. In other words, there is a set of established procedures to assess whether a person needs asylum protection. The practice of medical repatriation bypasses that process completely, thereby wiping out procedural safeguards in the law that were put in place to protect persons who may suffer harm or even death upon their involuntary return to their home country.
Moreover, the deportation of an individual has been ruled by the Supreme Court to be subject to certain standards of procedural due process protections. In the case Ng Fung Ho v. White, 259 U. S. 276, 385-286, the Court ruled: "It [deportation] may result also in loss of both property and life, or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law." The practice of medical repatriation, really a euphemism for deportation, is in total violation of even minimal due process.