Disability and Asylum Law
Guest blogger: Tessa Puetzer, law student, University of San Francisco:
There are currently five protected grounds under asylum law–race, nationality, religion, political opinion, and particular social group. Although disabled people can be subjected to horrific treatment around the world (e.g. the institutionalization of disabled people with grossly inadequate care), disability is not currently a statutorily protected ground for asylum. There is a potential pathway for disabled people to apply for asylum, though, by establishing themselves as a part of a particular social group. Tchoukhrova v. Gonzalez was a decision arising from the 9th Circuit where a Russian boy with cerebral palsy and his family were originally deemed to be a part of a particular social group as Russian disabled children and the parents who provide care for them. While this decision has since been vacated by the Supreme Court, it is worth sharing as a haunting example of why providing asylum to disabled children is so vitally important and how this reflects more broadly on our own treatment of disabled children in the Office of Refugee Resettlement (“ORR”) custody.
The story of Evgueni Tchoukhrova and his family is one of incredible tenacity in the face of adversity and demonstrates the horror which disabled children and the families that love them can experience. Evgueni was born in Russia in 1991, where he was diagnosed with cerebral palsy after medical staff at the Russian state-owned hospital broke his neck after attempting to retrieve him from his mother’s body with forceps. After seeing his injury, the medical staff threw the newborn into a container holding abortion and other medical waste. His mother had fallen unconscious and didn’t know the fate of her son. Miraculously, Evgueni survived and was retrieved from the bin. Evgueni’s mother, upon waking, pleaded with staff to see her son, but she was told that he was severely disabled and should abandon him. Government officials tried to intimidate the couple into abandoning Evgueni to a state-run orphanage, and, despite their refusal, he was sent to one anyway and denied parental visitation for months. When his parents were finally able to see him, they were horrified by the conditions they saw the disabled children lived in.
Although Evgueni was lucky that his parents were able to get him out, he endured systematic mistreatment by the Russian government and Russian society. His diagnosis of cerebral palsy meant he was denied access to public school (despite having no mental disability) and was banned from receiving any public medical support for his disability. He had frightening run-ins with people on the street who would insult him and, on occasion, physically assault him. His parents became disability advocates and were also subject to mistreatment by the government, their workplaces, and other Russian people.
While Evgueni was granted asylum as a member of a particular social group of persons with a severe disability, the IJ denied asylum to his parents, whose decision was affirmed on appeal to the BIA. The Tchoukhrovas appealed to the 9th Circuit, where Judge Reinhardt reversed the ruling and granted asylum to Evgueni’s parents as a member of a particular social group of children with severe disabilities and the parents who care for them. The solicitor general appealed the decision to the Supreme Court, who ultimately vacated the decision and remanded the case for further analysis. The reasoning was that the 9th Circuit mistakenly reached issues that the BIA did not originally rule on.
Although this case is no longer precedential, the USCIS in their Refugee, Asylum, and International Operations training materials for particular social groups states that the formulation for particular social group in Tchoukhrova is consistent with USCIS’s interpretation. It states, “The Asylum Division has granted asylum to people with disabilities when the applicant established that he or she was persecuted in the past or would be persecuted in the future on account of his or her membership in a particular social group, defined as individuals who share those disabilities. The proper analysis is whether 1) the disability is immutable; 2) persons who share that disability are socially distinct in the applicant’s society; and 3) the group is particularly defined.” This means that, thankfully, disability is seen as a ground (under the PSG formulation) for which a person may be granted asylum.
While it is encouraging to see an avenue for disabled people to be granted asylum, there are other issues with the treatment of disabled people in the immigration system. A prime example is how disabled unaccompanied minors are treated by the ORR, which is responsible for housing these children. Disability Rights California published a report in 2018 where they surveyed 150 disabled immigrant children detained in California. They reported three major findings: (1) that ORR does not provide disabled children with the appropriate and necessary special education services, (2) that ORR assessments and overall services for disabled children fall short of California state standards, and (3) that ORR disproportionately housed disabled children in the most restrictive placement settings (e.g. juvenile detention facilities vs. transitional foster care.) This last point is particularly significant and disturbing, as several children reported the staff at one juvenile detention facility used pepper spray against them.
This intersection of disability and immigration law shows how, although immigration law currently recognizes the importance of granting asylum to disabled asylum seekers, there is still work to be done to ensure all disabled people are treated with respect within this system. It is hypocritical for this country to recognize the persecution that disabled people clearly suffer in other countries while allowing the mistreatment of disabled people (disabled children, to be precise) in immigration detention facilities. Relief from persecution is not enough–disabled immigrants deserve to have their healthcare, educational, and safety needs met as well.
Sources
https://www.disabilityrightsca.org/system/files/file-attachments/DRC-ORR-Report.pdf
Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005), cert. granted, judgment vacated, 549 U.S. 801, 127 S. Ct. 57, 166 L. Ed. 2d 7 (2006)
https://www.superlawyers.com/articles/california/seeking-asylum/
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