The Right of People with Disabilities to Asylum and Protection from Deportation on the Grounds of Persecution or Torture Related to Their Disability

Abstract

In 2000, I wrote an article entitled The Right to Asylum for People with Disabilities, 73 TEMPLE L. REV. 1117 (2000), with a former law student. In this article, we discussed a recent case, Matter of Ricardo de Santiago-Carrillo, in which the BIA was asked to decide if a man with schizophrenia from Mexico was entitled to withholding of deportation and asylum because of the persecution he would face if he was returned to Mexico and placed in a state-run psychiatric institution for people with no income or family. This was the first case that raised the question of whether a person with a disability could qualify for asylum based on membership in the “particular social group” of people with disabilities and who face persecution on that basis. Mr. de Santiago-Carrillo did not ultimately prevail in his claim (because of reasons unrelated to his disability). However, his case opened the door for other clients with disabilities who would face persecution if returned to their homelands. Indeed, since the de Santiago-Carrillo case was decided, more than 50 cases have raised related claims for asylum, withholding of removal, or protection under the Convention Against Torture. This brief article provides an overview of these cases. (A more detailed analysis of these cases and theories related to the protection of immigrants with disabilities is the subject of my forthcoming longer law review article.) In addition to providing an overview of these cases, I argue that denying deportation relief to people claiming persecution on the basis of their disability violates not only our own national agenda of achieving equality and dignity for people with disabilities, as mandated by the Americans with Disabilities Act, but also the 1967 Optional Protocol on Refugees to which the US acceded in 1968, and which requires the US to refuse to return to his or her homeland any person who faces a well-founded fear of persecution on the basis of a particular social group, among other categories. Reports by Disability Rights International and other human rights organizations around the world continue to reveal the atrocities to which people with disabilities are subjected, particularly in state-run institutions. Future cases based on this growing body of evidence of mistreatment of people with disabilities, particularly in institutions, may hold promise for people in the US seeking protection from deportation. Accordingly, immigration lawyers representing people with disabilities should continue to raise their clients’ disability as a ground for asylum, withholding of removal, protection under CAT, and for humanitarian relief. Moreover, even in the absence of ratification by the US of the Convention on the Rights of People with Disabilities (which 177 countries have ratified, but not the US), our own domestic laws guarantee certain procedural protections to immigrants with disabilities, including their right to accommodations in judicial proceedings, as well as their right to competency evaluations and to counsel. These procedural rights should help to raise awareness about the plight as well as available legal protections for people with disabilities under United States immigration and asylum laws.