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)
