Immigrants’ Healthcare Access Concerns Call for Legal Navigation

In 2017, an ambulance transporting a 10-year-old undocumented girl with cerebral palsy was stopped at an immigration checkpoint in Texas. Rosa Maria Hernandez was on her way to get emergency gallbladder surgery. During her procedure, U.S. Immigration and Customs Enforcement (ICE) agents waited outside her hospital room and immediately took her to a detention center upon her discharge.

Despite ICE’s policy on sensitive locations, which is supposed to protect hospitals and clinics from ICE presence, stories like these instill fear in immigrant patients and create controversy among legal and health professionals over the extent to which immigration enforcement is affecting healthcare access. The current administration’s threat of enforcement makes it harder and harder for undocumented immigrants nationwide to feel safe accessing medical care.

The calculus of risk for this group is complex, says Jackie Kelley, an immigration attorney with the Irish International Immigrant Center. Congressional laws alone do not control immigration policy in this country — court decisions, agency memoranda, and executive actions can all impact the extent to which policies are enforced and, therefore, affect the steps patients should take to ensure their safety.

“Patients have to consider, Do I try to pursue legal status and risk losing everything, being separated from my family, and getting sent back to a country I haven’t been to for a very long time or where I would be in danger?” says Kelley. “Or do I wait and see if the political climate shifts to something a little bit less risky?”

Daily stresses around deportation and the legal repercussions that may stem from addressing basic needs contribute to a growing notion that immigration status is a social determinant of health. As the unique needs of this patient population are becoming clearer to providers, it becomes increasingly important for health organizations to provide avenues to address legal concerns that act as barriers to healthcare access and other means of thriving.

Care complexity and the need for a legal perspective

In 2018, U.S. Citizenship and Immigration Services put out a memorandum indicating that people who applied for and were denied immigration benefits would be placed into deportation proceedings.

Previously, explains Kelley, the policy had been not to refer many people to deportation proceedings unless there were strong indicators of fraud or criminal issues. The standard among legal professionals then was generally to advise clients to proceed with a case if they were eligible, willing, and had a good chance of success. They’d either be successfully on the pathway to legal status, or they’d likely be in the same position that they were before they started.

In a break from past policy, a 2018 memorandum from U.S. Citizenship and Immigration Services stated that removal proceedings would be initiated in a much wider range of cases in which various immigration requests were denied.

But given the increasing complexity of immigration law, even guidance that physicians and social workers may think is helpful, such as filling out certain forms for immigration benefits or applications for health insurance, may actually hurt their patient’s case in the future. It’s a difficult reality at the intersection of immigration and health, and one that legal experts advise providers to be cautious of getting too involved with.

“It’s important for someone who is licensed and on top of constantly changing immigration issues to be the one advising patients as to how they should move forward,” says Kelley. “But the complexity of the issue also means it’s a ripe area for partnerships.”

Embedding a legal navigator in primary care

A new program from Boston Medical Center (BMC) is an exploration of those partnerships, and it may serve as a model for addressing legal concerns within the healthcare setting. The initiative, led by Sarah Kimball, MD, primary care physician at BMC and medical director at the hospital’s Immigrant and Refugee Health Program, has embedded an immigration legal navigator within the primary care clinic.

In the pilot program, clinicians and case managers used a social determinants of health screening at intake to identify patients who needed immigration-related legal counsel. In its first year, the program identified 271 patients with varying immigration legal concerns, including asylum applications, green card access, and support with family reunification.

Of the patients that indicated that they had immigration legal needs through the screening, 100% were connected with the primary care legal navigator, an AmeriCorps member who sat within the clinic and whose exclusive role was to help connect patients with the appropriate resources, including immigration legal centers where they could meet with attorneys like Kelley.

At the end of the year, a full 100% of patients who reported need for supportive documentation for an application had it completed or pending. However, just 36.8% of patients who requested and were referred for representation secured an attorney in that time.

Taking it a step further: Onsite legal counsel

The disparity in referral and representation is due in part to a lack of capacity of attorneys who do this type of work, especially for indigent clients — a sobering call for greater support in community legal resources. Because of this need, the Immigrant and Refugee Health Program and Irish International Immigrant Center partnered to bring Kelley into the clinic at BMC to see patients with complex immigration legal needs onsite. 

In the first six months of the pilot, Kelley has advised 38 clients, 9 of whom she is now representing in their immigration cases, helping to support needs that range from family reunification to visas for crime victims and domestic violence survivors.

“One connecting thread I see in patients I have met with is a sense of relief that these services are available right at BMC, a place they already know and trust,” Kelley says of the partnership. “We know immigration status impacts health outcomes, so it’s very powerful to address these issues onsite at the hospital.”

These pilot projects also reveal another truth — that referral or counsel alone did not mean that the patient was eligible to move forward with an immigration case.

“There are tons of people who are undocumented and who don’t have a pathway to legal status that’s open to them, largely because of our extremely restrictive immigration laws,” Kelley explains, offering a silver lining: “Knowing that is important information, too, though, because hearing it from a licensed attorney can guide them to make decisions that will keep them safe.”

As immigration continues to be a point of controversy and focus, addressing immigration needs in the healthcare setting will only grow more important. Healthcare professionals are in the unique situation to identify unaddressed needs and create liaisons to immigration-related services.

“It’s so important in the immigration world to have people working on changing the system,” says Kelley, nodding to the value of advocacy and legislative change. “But until the system gets changed, you also need people who are guiding others through it and empowering them to use the system to their advantage as it exists.”