Asylum May Be Granted to the Parents of a Disabled Child
By James E. Root, Esq.
CA

To be eligible for asylum, an applicant must demonstrate that he or she is unable or unwilling to return to his or her country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
In a recent case called Tchoukhrova v. Gonzales, the Ninth Circuit Court of Appeals ruled that disabled children and their parents constitute a particular social group within the meaning of US Immigration laws, and that a parent who provides care for a disabled child may seek asylum and withholding of removal on the grounds of the persecution the child has suffered because of his disability.
In 1991, Evgueni Tchoukhrova was born in Vladivostok, Russia with cerebral palsy. The staff of the Russian state-owned hospital immediately threw Evgueni into a container holding abortion and other medical waste and told Evgueni’s mother that “they didn’t see the reason why he needed to live.” Despite all odds, Evgueni survived. Although his parents protested, Evgueni was transferred to an institution for children with birth defects.
The horrific conditions of this institution included abandoning hungry children in cold, wet, dirty linens. Evgueni’s parents were able to secure his release, and he was placed in a private clinic. However, because Evgueni was labeled disabled, he was banned from receiving any public medical support for his condition. Although his disability is physical, not mental, he was also denied access to public education. Evgueni and his parents were subject to verbal abuse and violent harassment while in public.
On two occasions Evgueni was even brutally attacked, causing him serious bodily injury.
Because Evgueni’s parents were unable to get the government to treat Evgueni and protect him from the violent harassment, they joined other parents of disabled children and tried to advocate for the rights of the disabled. Nevertheless, because hostilities toward the family increased, the family left for the United States in 2000. Shortly thereafter, Evgueni’s mother applied for asylum, withholding of removal, and relief under the Convention Against Torture. She listed Evgueni and her husband on the application as derivatives. The Immigration Judge denied the application finding that the harms suffered by the family did not rise to the level of persecution. The family appealed to the Board of Immigration Appeals, but that Court also adopted the Immigration Judge’s decision. Then the family filed a petition for review in the Ninth Circuit Court of Appeals.
The Ninth Circuit Court of Appeals granted the petition and found that disabled children in Russia constitute a social group and that their parents who care for them are also joined in that classification. Contrary to the Immigration Judge’s and Board’s findings, the Ninth Circuit concluded that the harms suffered by Evgueni and his parents amounted to persecution under the Immigration laws. First, Evgueni was treated as waste and thrown into a pile of human remains, on account of a protected ground. The second form of harm Evgueni suffered was his two-month involuntary confinement as an “internaty” in inhumane conditions. The third harm that Evgueni suffered was the continuing discrimination by the Russian government when he was denied medical care for his cerebral palsy and the right to an elementary education because of his disability. Additionally, in Russia, Evgueni would be under the constant threat of confinement in an institution by the Russian government. The fourth harm that Evgueni suffered is the violent attacks by the individual citizens. Therefore, the harm taken as a whole unquestionably rose to the level of persecution.
Since this persecution can be considered in adjudicating Evgueni’s mother’s claim for asylum, the Ninth Circuit held that Evgueni’s mother has suffered past persecution, and she also established a well-founded fear of future persecution. Because Evgueni’s mother was statutorily eligible for asylum, the Ninth Circuit sent the case back to the Attorney General to exercise his discretion. If Evgueni’s mother is granted asylum, Evgueni and his father will be able to get relief as derivatives of her application. Also the Ninth Circuit sent the case back to the lower courts because it found that Evgueni and his parents are entitled to withholding of removal because it is more likely than not that Evgueni would face future persecution if he were returned to Russia.
(James E. Root exclusively practices immigration law. He has offices in the Los Angeles and Orange Counties. For a free initial consultation please contact 1(888) ROOT-LAW or visit www.RootLaw.com)


Editor: Akhtar M. Faruqui
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