Investigations by Disability Rights International: Demonstrate A Worldwide Pattern of Abuse and Torture Which may Provide Grounds for Asylum and Protection from Deportation for People with Disabilities in the U.S.

Eric Rosenthal[1]

Throughout the world, people with disabilities are subject to a broad range of discrimination and abuse.[2] The confinement and mistreatment of people with disabilities to institutions was once seen as a matter of poor medical practice or outmoded social policies. [3] For twenty-five years, Disability Rights International (DRI) has worked to bring about recognition that such practices constitute serious violations of internationally-recognized human rights law.   The 2006 adoption, 2008 entry into force, and subsequent widespread ratification of the UN Convention on the Rights of Persons with Disabilities (“CRPD”) has greatly contributed to the worldwide recognition of the rights of people with disabilities under international law.[4] DRI’s involvement goes back much further – to a time when it was necessary to demonstrate that the rights of people with disabilities were already protected by established human rights treaties.   One of the goals of DRI was to provide the documentation necessary to use existing human rights “triggering … protections through domestic courts, such as the right to … asylum.”[5]

Over the last twenty-five years, DRI has documented human rights violations of people with disabilities confined to institutions and segregated from society.[6] Drawing on findings from around the world, DRI submitted an amicus curiae brief in Matter of Ricardo de Santiago-Carillo,[7] the first case to establish that being a person with a disability could qualify for membership in “a particular social group” for the purposes of protection under U.S. immigration laws.

DRI has been especially focused on demonstrating that abuses in institutions could rise to the level of torture as defined in Article 1 of the UN Convention Against Torture.[8]   Based on findings of people subject to “unmodiied” electro-convulsive therapy (electric shock treatment without anesthesia) in Turkey,[9] children tied to cribs in Serbia,[10] people locked in dark, airless isolation cells in Argentina,[11] individuals locked in cages in Hungary,[12] and men, women, and children raped and exploited for sex in the institutions of Guatemala[13] and Mexico.[14]

In the landmark case of Ximines-Lopes v. Brazil, in which the Inter-American Court found a violation of the right to life as well as inhumane treatment for a man who died in a private psychiatric facility in Brazil, I served as an expert for the plaintiff, appointed by the Inter-American Commission on Human Rights (IACHR), that mistreatment in a psychiatric facility could constitute torture.[15]

Drawing on its findings throughout the Americas, DRI has submitted its own petitions to the IACHR, contributing to the recognition that people with disabilities are subject to “severe and irreversible” abuses – a high threshold required to obtain “precautionary measures.” As established by the Inter-American Commission on Human Rights (IACHR):

Precautionary measures serve two functions related to the protection of fundamental rights recognized in the provisions of the inter-American system. They serve a “precautionary” function in the sense that they preserve a legal situation brought to the Commission’s attention by way of cases or petitions; they also serve a “protective” function in the sense of preserving the exercise of human rights. In practice, the protective function is exercised in order to avoid irreparable harm to the life and personal integrity of the beneficiary as a subject of the international law of human rights.[16]

The grant of precautionary measures is difficult to obtain. It is reserved for the protection of people from only the most serious abuses, requiring proof of a serious and urgent situation and an irreparable harm. As a result, only a few such precautionary measures are granted each year.[17]

In Paraguay, DRI obtained an order for precautionary measures to protect people detained in the country’s main psychiatric facility.[18] In Guatemala, the IACHR ordered precautionary measures to protect residents of the Federico Mora psychiatric facility.[19] For the first time, the IACHR recognized a right to community integration of people with disabilities in Guatemala.[20]  DRI and the Ombudsman of Guatemala also obtained precautionary measures to protect survivors of the Hogar Seguro Virgen de la Asuncion, where 41 girls were burned to death in 2016.[21] DRI found that the survivors of that fire had been moved to other, equally abusive institutions, and called for their full community and family re-integration. DRI and the Ombudsman of Guatemala have taken the position that children will only be safe when they are returned to families in the community, receiving the supports necessary to avoid further confinement.

DRI’s findings from Mexico obtained over two decades through hundreds of site visits, are particularly striking – as they demonstrate a pattern of abuse that is both severe and pervasive. Since DRI’s findings in Mexico were first covered by the New York Times Magazine in 2000[22] – and then covered extensively by press in Mexico and the Unites States[23] – the public and the authorities in Mexico have been on notice about the urgent need for improved protections.

DRI filed a case before the Inter-American Commission on Human Rights showing systematic segregation and abuse of people with disabilities — especially people with psychiatric and intellectual disabilities –in Mexico[24]. DRI has shown the near total lack of community-based services and support systems, without which people with disabilities will be continued to be detained in dangerous and uninhabitable institutions. DRI’s reports have resulted in powerful condemnation by the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) about the failure of the Mexican government to enforce the right to live in the community.[25]

DRI’s Casa Esperanza case, now pending before the Inter-American Commission on Human Rights, demonstrates the extent of abuse faced by people with disabilities. DRI first visited Casa Esperanza, a 37-bed facility in Mexico City, because it was one of dozens of facilities on a “black list” prepared by Mexico’s authority for children and families (DIF) of known, abusive facilities.[26] The DIF’s “black list” did not stop States throughout Mexico from sending children to this facility at government expense.[27]

When DRI first visited Casa Esperanza, the director admitted, on video, that all women admitted to the facility were sterilized because the facility could not protect them from being sexually abused by staff and outside workers at the facility. DRI observed children and adults at the facility locked in cages and left permanently with their arms tied behind their back.[28] After DRI presented documentary evidence of these abuses to the local authorities, the local authorities failed to respond for more than a year.[29] During that time, DRI reported on Casa Esperanza to the UN Committee on the Rights of Persons with Disabilities (the CRPD Committee), which included specific reference to the facility in its period report on compliance with the CRPD.[30] For more than six months after the United Nations issued this report, Mexico failed to stop abuses at Casa Esperanza.[31]

Finally, in May 2015, DRI gained the assistance of the Mexico City Human Rights Committee to stage a raid at Casa Esperanza. When DRI and the local human rights authorities entered the premises, they found that the institution had been emptied. According to neighbors, all the detainees had been put on a bus and sent to a “vacation” resort the morning before the raid. This sudden movement of detainees is particularly striking, because the director had reported to DRI that many of the residents of his facility had never previously left their beds.[32] Mexico City’s social service agency, the Department for the Development of Children of Families (DIF), had been informed in advance of the raid. This development suggests someone had tipped off the facility about the plans and timing of the raid.

Within a few days, the Mexico City Human Rights Commission was able to find the detainees and remove them from the control of Casa Esperanza. They found that a number of the women in the facility had been systematically sexually abused by staff and workers at the facility, and that they were forced to work in the homes of the institution’s staff.[33] Some of these women had grown up in orphanages in Mexico and had very minor disabilities – apart from the trauma of repeated sexual abuse and life-long detention.

DRI suggested to Mexico City authorities that the residents of Casa Esperanza should remain in the home (once the abusers had been removed) until community placements could be identified.[34] DRI filed a petition for precautionary measures with the Mexico City Human Rights Commission to ensure that detainees at Casa Esperanza would not be moved to other, similarly abusive institutions. Mexico authorities ignored this petition, and moved the Casa Esperanza residents to other abusive institutions throughout Mexico.[35] In a city of 8.5 million people, the local authorities reported that no community placements were available. Conditions at other institutions are so bad that, within one year, two of the 37 people formerly detained at Casa Esperanza, had died. DRI learned that one woman was repeatedly raped inside the institution to which she had been transferred after her release from Casa Esperanza.

The Casa Esperanza case demonstrates the total lack of safe and appropriate community placements for children and adults with disabilities. Even with extensive international pressure and attention, Mexico City has been unable to provide community placements for people with disabilities, formerly detained in abuse institutions. More importantly, this case shows that Mexican authorities were informed and aware of abuse and torture at Casa Esperanza, and that they nonetheless   knowingly and intentionally left the residents there, exposed to such abuse and mistreatment. As of today, there have been no remedies provided to any of the Casa Esperanza survivors.

For twenty-five years, DRI has dedicated extensive resources to documenting the abuse and torture of people with disabilities in institutions in Mexico and other countries. DRI’s reports on Mexico as well as additional documentation about conditions in other countries are essential to support the claims of people with disabilities who seek asylum and protection from deportation in the U.S. Of course, not all people with disabilities are subject to persecution or torture upon return to their home countries.   But children and adults who are at risk of confinement in abusive orphanages, psychiatric facilities, and other social care facilities require protection from deportation under U.S. law and international protections against torture. The following article by Professor Arlene Kanter will summarize the current state of the law with respect to claims by people with disabilities for protection from deportation under U.S. law.


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

Arlene S. Kanter[36]

I. Introduction

As the previous introduction by Eric Rosenthal, Executive Director of Disability Rights International, explains, men, women and children with disabilities are subjected to persecution and torture in various countries throughout the world today, solely on account of their disability. For people with disabilities who arrive in the United States seeking asylum or relief from deportation, presenting such evidence of persecution or torture in their homelands may provide them with the relief they seek. However, it was not until 1999 when the U.S. Board of Immigration Appeals (“BIA”) determined, for the first time, that an individual with a disability could qualify as a member of “a particular social group” for protection from deportation.[37]

Under the Immigration and Nationality Act (“INA”) a person is entitled to asylum or withholding of removal if he or she “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country 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.”[38] In Matter of Ricardo de Santiago-Carrillo, the BIA upheld the Immigration Judge’s decision that people with serious mental illness qualify as a particular social group “given their close affiliation and immutable characteristic of mental illness,” and because members of this group are “readily identified either through misbehavior or an inability to function in a society at large, and are subsequently involuntarily hospitalized, oftentimes for life.”[39] Nonetheless, the BIA held that Mr. de Santiago-Carrillo was not entitled to withholding of removal because he had failed to establish that the conditions of institutionalization in Mexico to which he would be subjected upon his return rose to the level of persecution required under the law.[40]

Although Mr. de Santiago-Carrillo ultimately lost his claim for withholding of removal, his case opened the door for countless other individuals seeking protection from deportation grounded in claims of persecution on the basis of their membership in “a particular social group” of people with disabilities. Although most of the cases that have been brought in the past decade by people with disabilities seeking asylum, withholding of removal and/or protection from deportation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), or for humanitarian relief have been denied, an increasing number of courts, the BIA, and immigration judges have held that the “particular social group category” applies to people with disabilities, and, that with sufficient evidence, their claims for withholding of removal, protection under CAT, or humanitarian relief may proceed.[41] A detailed analysis of the cases in which individuals with disabilities, and their families, have raised claims of persecution or torture on the basis of disability is the subject of a longer forthcoming law review article.[42] However, in this article for Human Rights Brief, I present a summary of the current state of the law and suggestions for future legal advocacy.

II. Background

People with disabilities, like people without disabilities, may file a claim for asylum, withholding of removal, or protection under the CAT as well as for humanitarian relief in order to avoid deportation. Both asylum and withholding of removal protects a person from being deported to a country where they experienced past persecution or where they have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[43] A person who qualifies for asylum also qualifies for withholding of removal under this same standard except that the one-year filing deadline for asylum does not apply to claims for withholding of removal.[44] In addition to asylum and withholding of removal, the CAT, which the United States ratified in 1994, also prohibits the U.S. from transporting anyone to any country where there is reason to believe that the person will be tortured or suffer cruel and degrading treatment. This treaty is one of the very few human rights treaties that the U.S. has ratified.[45] Persons seeking protection under the CAT, like persons seeking protection under withholding of removal, must show that it is “more likely than not” that they would be tortured if removed to the country from which they are claiming protection. However, unlike cases involving claims for withholding of removal or asylum, a person claiming protection under the CAT must show not only persecution but also “torture.” The CAT defines torture as any intentional unlawful infliction of severe physical or mental suffering or pain, with consent of a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination.[46] Moreover, under the CAT, a person is not required to show that the torture is based on one of the five protected grounds. In addition, individuals with disabilities who present evidence of past persecution or a well-founded fear of future persecution or torture because of disability are also entitled to seek humanitarian relief, known as Temporary Protected Status.[47] This status allows the immigration judge to extend protective status to those who would be harmed by returning to their country, but cannot establish the requisite criteria for refugee status or withholding of removal. This Temporary Protected Status does not provide, however, the same benefits as the status of refugee.[48] As of 2017, there were about 320,000 people from ten countries with Temporary Protected Status in the U.S., the majority from El Salvador (195,000), Honduras (57,000), and Haiti (46,000).[49] No records are available on which, if any, of these individuals have disabilities. Finally, in addition to these substantive claims for protection from deportation, recent case law has recognized the right of all immigrants with disabilities in deportation proceedings to counsel and to request competency evaluations, if applicable.[50]

A. People with Disabilities as Members of a Particular Social Group

Under the INA, a “particular social group” is defined as one in which the members are “united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”[51] In 2006, the BIA added an additional element of “social visibility” to the legal requirement of “a particular social group.”[52] As an alternative to immutable characteristics, social visibility requires the court to determine whether or not the society perceives the particular social group as a group within society.[53]

In recent years, the definition of a “particular social group” has been expanded to include a variety of social groups not specifically identified at the time of the immigration law’s enactment.[54] Like other groups of people who are now protected under the “particular social group category,” people with disabilities share a common social status, and are often excluded from and mistreated by their government.[55] People with disabilities may be deprived of their freedom, institutionalized against their will, and subjected to sterilization and eugenic policies.[56] Accordingly, one circuit court has held that children with disabilities in Russia are members of a particular social group. In Tchoukhrova v. Gonzales,[57] the Ninth Circuit Court upheld the decisions of the Immigration Judge and the BIA that a Russian child with cerebral palsy and his parents were members of “a particular social group” defined as “disabled children and their parents who provide care for them.”[58] In addition, the Third, Seventh, and Eighth Circuit Courts and immigration judges have held that people with disabilities may qualify as members of a particular social group.[59] However, in other cases, circuit courts have refused to find that people with disabilities qualify for membership in a particular social group.[60]

B. Claims by People with Disabilities of Past Persecution and/or Well-Founded Fear of Future Persecution

In addition to the requirement of membership in a particular social group, individuals with disabilities seeking asylum or withholding of removal also must show past persecution or a well-founded fear of future persecution based on one of the five enumerated grounds. Although neither the INA nor its implementing regulations define persecution, courts have interpreted persecution to include any serious harm, including the loss of freedom, involuntary confinement, and other serious violations of basic human rights, as defined by international human rights instruments.[61] Such harm may be physical as well as psychological harm.[62] Persecution also may include discriminatory treatment that leads to substantial restrictions on an individual’s right to earn a living, access to education, or a combination of harms.[63] Moreover, if a person suffered persecution in his or her home country in the past, it is presumed that the person would be persecuted in the future.[64]

Throughout history, people with disabilities have been subjected to persecution in the form of discrimination, segregation, stigmatization, mistreatment, institutionalization and even death on account of their disability.[65] In the U.S. today, men and women with disabilities, particularly those with intellectual or psychosocial disabilities, are forced to undergo inhumane treatment in institutions as well as involuntary sterilization and forced abortions,[66] which has been recognized as a violation of human rights,[67] and as a category qualifying an applicant for refugee status.[68] Reports by Disability Rights International (“DRI”), the leading international NGO that investigates abuse of people with disabilities in institutions throughout the world, have found widespread inhumane and degrading treatment and human rights violations of people in psychiatric hospitals, social care homes, orphanages and other segregated facilities for children and adults with disabilities that should qualify as persecution or even torture under U.S. law.[69] Most recently, the plight of Syrian refugees has shown the particularly devastating effect of war on children with disabilities.[70] In some cases, the Ninth and Third Circuit courts as well as immigration judges and the BIA have upheld claims for withholding of removal for people with disabilities. [71] However, in other decisions, and for different reasons, circuit courts have denied claims for asylum or withholding of removal.[72]

C. Claims by People with Disabilities Under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (CAT)

In addition to petitions for asylum and withholding of removal, individuals with disabilities seeking relief from deportation may request relief under the CAT.[73] People with disabilities experience torture in a variety of settings, as has been recognized by UN Special Rapporteurs on Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment in their respective reports to the General Assembly and the Human Rights Council.[74] Based on such treatment, the BIA and some circuit courts have upheld claims for protection from deportation under the CAT. [75] However, other cases requesting relief under the CAT have not succeeded.[76]

D. Claims by People with Disabilities for Humanitarian Relief from Deportation

The final category of cases that address the rights of people with disabilities to remain in the U.S. is known as humanitarian relief.[77] Such cases arise out of concern about the treatment of people in their homelands that allow for a finding of “exceptional circumstances” that may excuse, for example, the untimely filing of applications[78] or warrant a review of cases for changed circumstances.[79] For example, the First Circuit Court remanded the case of Ordonez-Quino v. Holder to determine if there was sufficient evidence to substantiate a deaf man’s claim of persecution at the hands of Guatemalan soldiers.[80] Similarly, in In re Elvin Renaldo Hartley, the BIA upheld an immigration judge’s decision to grant a waiver from an order of removal for a man with mental illness with a criminal record because of the “extreme hardship” he would endure upon his return to Jamaica.[81]

III. Conclusion

An increasing number of people with disabilities are seeking relief from deportation by raising claims of persecution, torture or requests for humanitarian relief based on their disability. Although not all such cases have been successful, as investigative reports such as those produced by DRI substantiate claims of persecution and torture in certain countries, the BIA and circuit courts will have no choice but to conclude that such evidence warrants grants of asylum and protection from deportation for people with disabilities from those countries, and perhaps other countries as well.

The INA as well as the 1967 Optional Protocol on Refugees to which we acceded in 1968, requires the U.S. 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.[82] Rejecting claims for asylum, withholding of removal or under the CAT by persons with disabilities who present at least some credible evidence of their well-founded fear of persecution or torture seems to be driven by a restrictive view of our immigration laws. Such a view is not only inconsistent with the 1967 Optional Protocol but also with the legislative intent of the INA, itself, as well as with international humanitarian standards upon which the INA is based. Denying deportation relief to people with disabilities also violates our own national agenda of achieving equality and dignity for people with disabilities, as mandated in the Americans with Disabilities Act of 1990 and its amendments, as codified in the Americans with Disabilities Amendment Act of 2008. Reports by DRI 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 and at the hands of others with government acquiescence. As such evidence is collected and presented in immigration proceedings on behalf of people with disabilities seeking asylum and protection from deportation, the chances for successful outcomes in their cases will increase. In the meantime, therefore, lawyers representing people with disabilities should continue to raise their clients’ disability as grounds for asylum, withholding of removal, protection under the CAT, and for humanitarian relief. Moreover, even in the absence of ratification of the Convention on the Rights of People with Disabilities[83] (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. Enforcement of these procedural rights, too, will help to raise awareness about the plight as well as available legal protections for people with disabilities seeking relief from deportation under U.S. immigration laws.

AUTHOR’S NOTE:

On April 17, 2018 Immigration Judge Kristin Olmanson in Minneapolis, MN l, reversed on remand the BIA decision In the Matter of Perez Rodriguez. Judge Olmanson granted him asylum and withholding of removal, in large part due to the expert testimony provided by Eric Rosenthal of Disability Rights International, about the conditions in institutions in Mexico.

[1] Eric Rosenthal, JD, LL.D (hon) is the founder and Executive Director of Disability Rights International.

[2] See Eric Rosenthal and Laurie Ahern, Segregation of children worldwide: the human rights imperative to end institutionalization, 12 J. Pub. Health 193 (2013) (summarizing DRI’s worldwide findings). See also, Catalina Devandas Aguilar (Special Rapporteur on the rights of persons with disabilities),Report of the Special Rapporteur on the rights of persons with disabilities, U.N. Doc. A/HRC/37/56 (Dec. 12, 2017); Juan E. Mendez (Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment), U.N. Doc A/HRC/22/53, para. 57-70 (Feb. 1, 2013); UN, General Assembly, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Seventieth session, U.N. Doc 15/22, A/70/213 (July 30, 2015).

[3] See Eric Rosenthal & Leonard S. Rubenstein, International Human Rights Advocacy under the ‘Principles for the Protection of Persons with Mental Illness’, 16 Int’l J. Law & Psychiatry 257-300 (1993)(describing protections for people in institutions under human rights treaties before the CRPD was adopted).

[4] UN General Assembly, Convention on the Rights of Persons with Disabilities, GA Res. 61/106, UN Doc. A/RES/61/106 (January 24, 2007) (Adopted on 13 December 2006, Entered into force on 3 May 2008).

[5] Id. at 288.

[6] DRI’s worldwide findings from Europe, the Americas, and Asia are posted at https://www.driadvocacy.org/media-gallery/our-reports-publications/. DRI has brought unprecedented international press coverage of these issues. Select international press coverage is posted a https://www.driadvocacy.org/media-gallery/.

[7] Brief in support of respondent´s withholding of removal. -Mental Disability Rights International et al. as Amicus Curiae Supporting Respondent Ricardo De Santiago-Carrillo, U.S. Dep’t of J., B.I.A., (2000) (No. A35-790-589). (unpublished decision) (brief and unpublished decision on file with the author).

[8] Eric Rosenthal and Laurie Ahern, When Treatment is Torture: Protecting People with Disabilities Detained in Institutions, 19 Hum. Rts. Brief 13-17 (2012)(describing DRI’s role in documenting and gaining recognition of treatment of people with disabiltiies as torture).

[9] Mental Disability Rights International, Behind closed doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages and Rehabilitation Centers of Turkey, (2005), https://www.driadvocacy.org/wp-content/uploads/turkey-final-9-26-05.pdf (last visited April 8, 2018).

[10] Mental Disability Rights International, Torment not Treatment: Serbia´s Segregation and Abuse of Children and Adults with Disabilities, (2007), https://www.driadvocacy.org/wp-content/uploads/Serbia-rep-english.pdf (last visited April 8, 2018).

[11] Mental Disability Rights International, Ruined Lives: Segregation from Society in Argentina’s Psychiatric Asylums (2007), https://www.driadvocacy.org/wp-content/uploads/MDRI.ARG_.ENG_.NEW-Argentina.pdf (last visited April 9, 2018).

[12] Mental Disability Rights International, Human Rights & Mental Health: Hungary, (1997), https://www.driadvocacy.org/wp-content/uploads/Hungary.pdf (last visited April 9, 2018).

[13] Disability Rights International, After the Fire Survivors of Hogar Seguro Virgen de la Asunción at risk, (2017), https://www.driadvocacy.org/wp-content/uploads/After-the-Fire-March-15.pdf (last visited April 10, 2018).

[14] Disability Rights International, No Justice: Torture, Trafficking and Segregation in Mexico, (2015), https://www.driadvocacy.org/wp-content/uploads/Sin-Justicia-MexRep_21_Abr_english-1.pdf (last visited April 10, 2018); Disability Rights International, Twice Violated Abuse and Denial of Sexual and Reproductive Rights of Women with Psychosocial Disabilities in Mexico, (2015), https://www.driadvocacy.org/wp-content/uploads/Mexico-report-English-web.pdf (last visited April 10, 2018).

[15] 2006 Inter-Am C. H.R. (serc. C) No. 149 (July 4, 2006) at ¶150.

[16] OAS, http://www.oas.org/en/iachr/decisions/about-precautionary.asp (last visited April 11, 2018).

[17] In 2008, for example, the number of precautionary measures requests received by the IACHR were 301, only 28 were granted. The number of precautionary measures requests received in 2010 were 375, only 68 were granted. IACHR, statistics Precautionary Measures, http://www.oas.org/en/iachr/decisions/about-precautionary.asp (last visited April 11, 2018).

[18] 458 patients at the Neuropsychiatric Hospital & Julio César Rotela y Jorge Bernal v. Paraguay, Precautionary Measures, “PRECAUTIONARY MEASURES 2003” ¶ (Inter-Am. Comm’n H.R. Dec. 17, 2003).

[19] 334 patients at the Federico Mora Hospital v. Guatemala, Precautionary Measures, “PM 370/12 – Patients at the Federico Mora Hospital, Guatemala” ¶ (Inter-Am. Comm’n H.R. Nov. 20, 2012).

[20] Inter-Am. Comm’n H.R., Situation of Human Rights in Guatemala, OEA/Ser.L/V/II Doc. 208/17 (Dec. 31, 2017).

[21] Hogar Seguro Virgen de la Asunción v. Guatemala, Precautionary Measures, “PM 958/16 – “Virgen de la Asunción” Residential Institution, Guatemala” ¶ (Inter-Am. Comm’n H.R. March 12, 2017).

[22] Michael Winerip, The Global Willowbrook, The New York Times Magazine (January 16, 2000).

[23] Press coverage of DRI’s findings in Mexico over twenty years is posted at www.DRIadvocacy.org.

[24] Disability Rights International, Abandoned and Disappeared Mexico’s Segregation and Abuse of Children and Adults with Disabilities, (2010), https://www.driadvocacy.org/wp-content/uploads/Abandoned-Disappeared-web.pdf (last visited April 10, 2018); Disability Rights International, Human Rights and Mental Health, Mexico, (2000), https://www.driadvocacy.org/wp-content/uploads/Human-Rights-Mental-Health-English.pdf (last visited April 10, 2018).

[25] Inter-Am. Comm’n H.R., Situation of Human Rights in Mexico, OEA/Ser.L/V/II Doc. 44/15 (Dec. 31, 2015) See also U.N. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Mexico, CRPD/C/MEX/CO/1 (Oct. 27, 2014).

[26] Disability Rights International, supra note 12 at 1.

[27] Id.

[28] Id. at 5.

[29] Id. at 3.

[30] U.N. Committee on the Rights of Persons with Disabilities, supra note 20 at 6, par. 37.

[31] Disability Rights International, supra note 12 at 3.

[32] Id. at 6.

[33] Id. at 4.

[34] Id. at 6.

[35] Id.

[36] Laura J. and L. Douglas Meredith Professor of Teaching Excellence, Syracuse University; Bond, Schoeneck & King Distinguished Professor of Law and Director of Disability Law and Policy Program, Syracuse University College of Law; Fall 2017 Visiting Scholar, Harvard Law School; Spring 2018 Lady Davis Fellow, Hebrew University. I wish to thank Syracuse University College of Law for my 2017-18 sabbatical as well as Harvard Law School, Hebrew University Faculty of Law, and the Lady Davis Fellowship Program for support for this article. Thank you also to Professors Deborah Anker and Sabi Ardalan of Harvard Law School’s Immigration and Refugee Clinic for generously sharing their expertise and Harvard Law students, Rosa Lee Bichell and Madeleine O’Neill for their research assistance. Thank you also to my Syracuse University College of Law research assistant, Megan Brooks. This article is a summary of my longer forthcoming law review article, entitled Making the Case (Again) for Protection from Deportation for People with Disabilities.

[37] Matter of Ricardo de Santiago-Carrillo (BIA June 15 2000) (unpublished decision) (on file with author). See Arlene Kanter, The Right to Asylum for People with Disabilities, (with Kristen Dadey), 73 Temple L. Rev. 1117 (2000); The Right to Asylum and Need for Legal Representation of People with Disabilities in Immigration Proceedings, (with R. Blake Chisam and Christopher Nugent), 25 Mental & Physical Disability L. Rptr. 511 (2002) (arguing that people with disabilities should be entitled to legal representation and due process protections in immigration proceedings).

[38] 8 U.S.C. §1101(a)(42) (2014).

[39] Matter of Ricardo de Santiago-Carrillo, supra note 2.

[40]Id. Mr. de Santiago Carrillo was diagnosed with schizophrenia and if returned to Mexico, he established that he would be placed in a state run institution for “abandanados,” people with no family and no resources. Although the uncontroverted evidence established that the conditions were so horrendous in such institutions, that any fact finder could conclude that it was more likely than not that Mr. de Santiago Carrillo would die there, the BIA reversed the Immigration Judge’s decision in favor of withholding of removal. The Ninth Circuit upheld the withholding of removal, but on different grounds.

[41] Since 2000, there have been nearly 50 cases that have raised disability as grounds for seeking asylum, withholding of removal and/or claims under the CAT. They are all listed here, arranged by circuit in reverse chronological order, followed by decisions of the Board of Immigration Appeals and immigration judges:

Ordonez-Quino v. Holder, 760 F.3d 80 (1st Cir. 2014) (remanding to determine whether an indigenous man made deaf by a military attack as a child had suffered past persecution in light of the cumulative evidence, or alternatively, whether severe harm and the long-lasting effects thereof made him eligible for humanitarian asylum); Cano-Saldarriaga v. Holder, 729 F.3d 25 (1st Cir. 2013) (denying petition for asylum based on petitioner’s mental disability would be “piecemeal,” and not addressing the BIA court’s decision “that any favorable considerations arising from Cano’s disability failed to outweigh the dangers posed by his significant criminal history,” because of petitioner’s new applications); Lopez Perez v. Holder, 587 F.3d 456 (1st Cir. 2009) (denying asylum, withholding, and CAT protection to a woman whose husband has Parkinson’s and who had been harassed in the past by her family); Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) (finding that a mentally ill criminal deportee was not eligible for withholding or CAT protection, but remanding for reconsideration of his asylum claim as his crime was not found to bar him from relief); Roig v. Holder, 580 F. App’x 4 (2nd Cir. 2014) (finding a Cuban man’s claims that he would be arrested and tortured in prison, due in part to his disability, “speculative”); Ke Lin v. Holder, 571 F. App’x 46 (2d Cir. 2014) (denying asylum and withholding to a Chinese man with a mental disability because he failed to show that the government acquiesced to discrimination and his fear of sterilization was “speculative”); Thiersaint v. Holder, 464 F. App’x 16 (2d Cir. 2012) (denying CAT protection to a Haitian with a physical disability because he failed to show that he would be “singled out for torture,” despite “unduly harsh conditions” for criminal deportees); Ibrahim v. Att’y Gen. , 708 F. App’x 704 (3d Cir. 2017) (denying withholding on the basis of a lack of comparative evidence of country conditions to prove “material change,” and explaining that petitioner had offered no evidence as to conditions for persons with disabilities at the timing of his removal hearing); Roye v. Atty. Gen. of U.S., 693 F.3d 333, 343 (3d Cir., 2012) (finding that although a lack of resources and deplorable conditions in prison do not in themselves constitute torture, the state’s willful blindness to the disparate impact on the mentally ill may constitute intention under CAT); But see Joseph v. Atty. Gen., 392 F. App’x. 934, 937 (3d Cir. 2010) (finding that deplorable Haitian prison conditions did not amount to torture); Soobrian v. Atty. Gen, 388 F. App’x 182 (3d Cir. 2010) (finding no government intent to persecute the mentally ill (assuming they are a social group) due to lack of allocation of resources, but remanding for consideration of a CAT claim); Tinizaray-Narvaez v. Attorney General Of U.S., 2009 WL 4048859 (3d Cir. 2009) (holding that the BIA had abused its discretion by not allowing a psychologist to testify as to the hardship posed to the petitioner’s mentally ill citizen daughter.); Massaquoi v. Att’y Gen., 313 F. App’x. 483 (3d Cir. 2008) (denying withholding and CAT protection to a mentally ill Liberian man on the basis that his evidence of future persecution, a doctor’s testimony, was “tenuous, speculative, uncorroborated” and did not prove a state policy against the mentally ill); Baptiste v. Att’y Gen., 229 F. App’x 66 (3d Cir. 2007) (finding that petitioner’s disabilities of a limp and depression were “exceedingly minor” and that conditions described as persecution and torture were only the “general upheaval” facing all Haitians); Akhtar v. Att’y Gen., 138 F. App’x 481 (3d Cir. 2005) (finding that although people with disabilities are “outcasts” in Pakistan, a Pakistani man with a physical disability on the grounds that he would not suffer mistreatment amounting to persecution); Korneenkov v. Holder, 347 F. App’x 93 (5th Cir. 2009) (denying asylum to a Russian couple with mental disabilities on the grounds that past harassment did not rise to the level of persecution); Fahmy v. Holder, 576 F. App’x 524 (6th Cir. 2014) (denying withholding and CAT protection to paranoid schizophrenic person from Egypt. The unavailability of medication did not make him more likely than not to be detained and tortured because there was insufficient evidence of personal motive in medication access and targeting of people with mental illness for detention and torture); Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir. 2009) (rejecting the social visibility argument); Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008) (remanding case to lower court to determine petitioner, who was diagnosed with severe social anxiety disorder and depression and was declared mentally incompetent, suffered past persecution); Disha v. Gonzales, 207 F. App’x 694 (7th Cir. 2006) (denying asylum, withholding, and CAT protection to a man from Albania who entered the U.S. on a false report and claimed to be a mental patient. The Court found that even if the proposed group, people with mental disabilities that did not receive proper treatment, was cognizable, petitioner did not prove that he belonged to it); Estrada-Rodriguez v. Lynch, 825 F.3d 397 (8th Cir. 2016) (seeking cancellation of removal based on extreme hardship to his child but Court ordered removal because of parent’s crime of moral turpitude); Makatengkeng v. Gonzales, 495 F.3d 876 (8th Cir. 2007) (denying asylum, withholding, and CAT protection to an albino Indonesian man on the grounds that economic and social discrimination did not constitute persecution); Raffington v. I.N.S., 340 F.3d 720 (8th Cir 2003) (denying a mentally ill Jamaican woman’s motion to reopen to apply for asylum on the bases that “the mentally ill are too large and diverse a group to qualify” as a particular social group, and that there was insufficient evidence of persecution); Palacios-Aguilar v. Sessions, 2018 U.S. App. LEXIS 7260; 2018 WL 1417215 (9th Cir. 2018) (denying withholding of removal due to lack of proof to show persecution based on membership in group of parents of children with disabilities); Palma-Bello v. Sessions, 2017 U.S. App. LEXIS 25184; 2017 WL 6349265 (9th Cir. 2018) (denying a late-filed asylum claim and withholding upheld due to lack of evidence to show persecution on the basis of disability); Escobar v. Lynch, 676 F. App’x 670 (9th Cir. 2017) (denying asylum, withholding, and CAT protection to the mother of a disabled 17-year-old boy); Torres-Derichey v. Lynch, 636 F. App’x 707 (9th Cir. 2016) (denying withholding to a mother who justified her delay in filing as “changed circumstances” based on the birth and diagnosis of her son with a disability); Hernandez- Castaneda v. Lynch, 671 F App’x 565 (9th Cir. 2016) (denying asylum, withholding, and CAT protection to a disabled former gang member with a disability on the basis of a lack of evidence that he would be targeted for persecution by the government or by gangs with government acquiescence); Inda-Ulloa v. Holder, 577 F. App’x 649 (9th Cir. 2014) (denying an appeal of an asylum denial in part due to petitioner’s lack of a well-founded fear based on his mental disability); Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (denying withholding to a petitioner whose proposed social group, insulin-dependent persons with mental health problems, was held to not be a particular social group); Rusak v. Holder, 734 F.3d 894 (9th Cir. 2013) (finding that abuse of a deaf woman in school did not rise to the level of persecution); Meraz-Medosa v. Holder, 501 F. App’x 706 (9th Cir. 2012) (denying asylum, withholding, and CAT protection to a man with a hearing disability whose past experiences and future fears did not rise to the level of persecution); U.S. v. Rodriguez-Chacon, 478 F. App’x 391 (9th Cir. 2012) (finding that a person with undefined cognitive disabilities had not proved that he was a member of a particular social group); Tobar-Serrano v. Holder, 338 F. App’x 682 (9th Cir. 2009) (denying asylum to an El Salvadoran man with disabilities on the grounds that his disability was not a “central reason” for past harm suffered, even if it constituted a particular social group); Rocca v. Mukasey, 295 F. App’x 191 (9th Cir. 2008) (remanding for consideration of whether “Peruvians with serious, chronic mental disabilities” constitute a particular social group, and denying review of a CAT claim); Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008) (denying withholding and CAT relief to a Mexican man with bipolar disorder on the grounds that his robbery was a “particularly serious crime” barring withholding, and that he did not establish the specific intent necessary for the CAT claim); Gokce v. Gonzales, 247 F. App’x 52 (9th Cir. 2007) (denying asylum, withholding, and CAT protection to a mentally ill Turkish man who failed to prove past persecution, a well-founded fear of future persecution, or that commitment to a mental institution constituted torture); Boer-Sedano v. Gonzalez, 418 F.3d 1082 (9th Cir. 2005) (finding that a gay man in Mexico is part of a particular social group, the petitioner suffered past persecution, and remanded to consider withholding claim); Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005) (finding that disabled Russian children and their caretaking parents are a “particular social group”); Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (holding that “inability to state a cognizable asylum claim does not necessarily preclude relief under the Convention Against Torture”); Cole v. Attn’y Gen., 712 F.3d 517 (11th Cir. 2013) (denying review of asylum, withholding, and CAT protection to a man with developmental disabilities on the grounds that the Jamaican government was working to protect people with disabilities);. In re Elvin Renaldo Hartley, WL 3063581 (BIA 2009) (granting an “extreme hardship” waiver to a man from Jamaica with schizoaffective disorder despite a lack of evidence of treatment possibilities in Jamaica); In re Gloria Moscoso Caba, 2008 WL 339675 (BIA) (finding no evidence of torture); Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) (holding that “immutability is a determining factor in defining a particular social group,” and that an immutable characteristic is “a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed”); In re C-A-, 23 I. & N. 951 (2006) (holding that the “social visibility” of the claimed social group is an important consideration in determining whether the group is cognizable where petitioner voluntarily informed on the drug cartel in Columbia); Matter of Faronda Blandon, 78 Interpreter Releases 1173 (July 16, 2001) (granting withholding to a mentally incompetent homeless man from Colombia, and that petitioner was found likely to suffer abuse amounting to persecution, torture, or killing as part of “social purges” in Colombia); Matter of ___, Immig. Rptr. LEXIS 5229 (2013) (recognizing people from Ghana with severe mental illness as a particular social group and remanding to the IJ to allow excluded expert testimony and country reports).

In April 2018, the BIA reversed an immigration judges decision and ordered the case remanded, finding that a man from Senegal with schizophrenia who “exhibit[ed] erratic behavior” qualified for membership in a particular social group.

[42] Arlene S. Kanter, Making the Case (Again) for Protection from Deportation for People with Disabilities (forthcoming).

[43] U.S.C. §241(b)(3)(B); 8 C.F.R. § 1208.16(b) (2005).

[44] 8 U.S.C. §1101(a)(42) (2014); 8 C.F.R. § 1208.16(b) (2005).

[45] See Arlene S. Kanter, The Failure of the United States to Ratify the UN Convention on the Rights of People with Disabilities, in Johnson, K. and Kakoullis, E., eds., Recognising Rights in Different Cultural Contexts: The United Nations Convention on the Rights of Persons with Disabilities (CRPD), (forthcoming 2018) (recognizing that of the nine core human rights treaties that have been adopted by the United Nations, the U.S. has signed only three, giving the U.S. the distinction of the country with the “poorest record of ratification of human rights treaties among all industrialized nations”).

­[46] G.A. Res. 32/62 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (Dec. 10, 1984) [hereinafter CAT]. The CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Id.

[47] In other countries, this temporary protective status is known as “complementary protection.” See 8 CFR 244 (2011); See also General Conclusion on International Protection No. 108, (k) (LIX) – 2008 EXCOM Conclusions, 10 October 2008 available at: http://www.unhcr.org/49086bfd2.html.

[48] See Jill H. Wilson, Temporary Protected Status: Overview and Current Issues, Congressional Research Service RS20844, January 17, 2018, available at https://fas.org/sgp/crs/homesec/RS20844.pdf; see also Jane McAdam, Status Anxiety: Complementary Protection and the Rights of Non-Convention Refugees, in University of New South Wales Faculty of Law Research Series 5 (2010), available at http://law.bepress.com/cgi/viewcontent.cgi?article=1196&context=unswwps-flrps10 (last visited Jan. 21, 2013).

[49] These countries are Haiti, El Salvador, Syria, Nepal, Honduras, Yemen, Somalia, Sudan, Nicaragua and South Sudan. See Vera Cohn & Jeffery S. Passel, More than 100,000 Haitian and Central American immigrants face decision on their status in the U.S., Pew Research Center (November 8, 2017).

[50] In 2011, the BIA upheld the right of immigrant detainees with mental disabilities to due process protections, including the right to be evaluated to assess competency before proceeding with deportation proceedings in In re M-A-M, 25 I&N Dec. 474 (BIA 2011). Moreover, in 2013, a federal district court ordered the federal government to provide legal representation for immigrant detainees in California, Arizona and Washington who have serious mental disabilities and are unable to represent themselves in immigration court. This was the first court decision to recognize a right to appointed counsel in immigration proceedings for a group of immigrants. Franco-Gonzalez et al., v. Holder, 767 F. Supp. 1034 (C.D. Ca. 2013). But see Matter of J-R-R-R-A 26 I&N 609 (BIA 2015) in which the Immigration Judge found that the applicant with a cognitive disability was not credible with respect to the genuineness of his fear of persecution. The case was remanded to determine competency and reassess the factual findings if competency was shown to be an issue.

[51] 8 U.S.C.. §1101(a)(42)(A); The first case to interpret the “particular social group” category is the 1986 case of Matter of Acosta, 19 I. & N. Dec. 211, 232 (B.I.A. 1985). In this case, citing the lack of guidance and using the interpretative canon of ejusdem generis, the BIA adopted the immutable characteristic standard, which requires that members of a particular social group share “a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be to changed.

[52] In re C-A-, 23 I. & N. Dec. 951, 959 (2006); See Matthew Shelton Nestrud, Misguided Interpretation is Not “Immutable”: A Critique of the Board of Immigration Appeals’ Interpretation of “Membership in a Particular Social Group” Under United States Asylum Law- A Proposed Standard, 5 J. Marshall L.J. 597, 613 (2012).

[53] See Theories of the case – Grounds for fearing persecution – Social Group 1 Immig. L. & Defense §13:40 (2018).

[54] See e.g., In re Acosta, 19 I. & N. Dec. 211, 232 (B.I.A. 1985) (basing asylum claim on membership in group “COTAXI,” which was formed to help members save money and purchase their own taxis);  Sanchez-Trujillo v. INS, 801 F.2d at 1573-74 (basing asylum claim on membership in group that has not expressed support for government of El Salvador); In re Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988) (basing asylum claim on immutable characteristic of former members of El Salvador national police force);  Hernandez-Montiel v. INS, 225 F.3d 1084, 1087 (9th Cir. 2000) (finding membership for gay man with female sexual identity); Pitcherskaia v. INS, 118 F.3d 641, 643 (9th Cir. 1997) (finding membership for Russian lesbian); In re Toboso-Alfonso, 20 I. & N. Dec. 819, 820 (B.I.A. 1990) (finding membership for Cuban homosexual); In re Kasingconclyusa, 21 I. & N. Dec. 357, 365 (B.I.A. 1996) (basing asylum claim on membership in group of young women who are members of Togo tribe, have not been subject to female genital mutilation, and who oppose the practice);  Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir. 1993) (basing asylum claim on membership in group of Iranian women who oppose government gender-specific laws and social norm); Matter of A-N-, A73603840 (IJ Dec. 22, 2000) (Philadelphia, Pa.) (Grussendorf, IJ); Aguirre-Cervantes v. INS, No. 99-70861, 2001 WL 274698 (9th Cir. Mar. 21, 2001); Garcia v. Att’y Gen. of the U.S., 665 F.3d 496, 503–04 (3d Cir. 2011) (concerning witnesses who have assisted the government in testifying against gang violence); Escobar v. Holder, 657 F.3d 537, 545 (7th Cir. 2011) (recognizing truckers who because of their anti-FARC views and actions, have collaborated with law enforcement and refused to cooperate with FARC); Ayala v. Holder, 640 F.3d 1095 (9th Cir. 2011) (suggesting former military officers as a particular social group, but denying the current applicant asylum for failure to establish nexus). See also Arlene Kanter, The Right to Asylum for People with Disabilities, (with Kristen Dadey), 73 Temple L. Rev. 1117 (2000); The Right to Asylum and Need for Legal Representation of People with Disabilities in Immigration Proceedings, (with R. Blake Chisam and Christopher Nugent), 25 Mental & Physical Disability L. Rptr. 511 (2002).

[55] See Arlene Kanter, The Right to Asylum for People with Disabilities, (with Kristen Dadey), 73 Temple L. Rev. 1117 (2000); The Right to Asylum and Need for Legal Representation of People with Disabilities in Immigration Proceedings, (with R. Blake Chisam and Christopher Nugent), 25 Mental & Physical Disability L. Rptr. 511 (2002).

[56] Arlene S. Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights, 65-66 (2015).

[57] Tchoukhrova v. Gonzales, 404 F.3d 1181, 1188–1189 (9th Cir. 2005), vacated and remanded on other grounds, 127 S. Ct. 57 (2006). This case is also important because it extended protection not only to a child with a disability but to his parents as well. As the court wrote: “We hold that disabled children and their parents constitute a statutorily protected group and that a parent who provides care for a disabled child may seek asylum and withholding of removal on the basis of the persecution the child has suffered on account of his disability. We also hold that, given the record before us, the parent who is seeking asylum and withholding in this case is eligible for the former relief and entitled to the latter. Finally, we hold that the parent’s spouse and the disabled child are eligible for asylum by virtue of their derivative applications and are also entitled to withholding of removal.” Id.

[58] Tchoukhrova v. Gonzales, 404 F. 3d 1181, 1190 (9th Cir. 2005).

[59] In 2010, the Third Circuit recognized a “mentally ill” person as a member of a particular social group in Soobrian v. Atty. Gen. of US., 388 F. App’x. 182, 183 (3d Cir. 2010). Similarly, the Seventh Circuit overturned a BIA decision in 2008 which had held that mental illness was not an immutable trait in Kholyavskiy v. Mukasey, 540 F.3d 555, 573 (7th Cir. 2008). In another case, Makatengkeng v. Gonzales, 495 F.3d 876 (8th Cir. 2007), the Eighth Circuit Court found that an Indonesian man with albinism was a member of a social group because his albinism is an immutable characteristic but denied his claim for asylum because of his failure to show fear of persecution on the basis of his albinism. See also Matter of __ 2013 Immig. Rptr. Lexis 5229 (Nov. 15 2013) (recognizing that people from Ghana with severe mental illness are a particular social group and remanded to the IJ to allow excluded expert testimony and country reports); Rocca v. Mukasey, 295 F. App’x 191, 192 (9th Cir. 2008) (remanding Petitioner’s claims for asylum and withholding of removal to determine “whether Peruvians with serious, chronic mental disabilities constitute ‘a particular social group’”). In addition, an Immigration Judge had held that a Pakistani boy with autism was a member of a particular social group and qualified for asylum. Letter Opinion by Robert Esbrook, A 78 642 794 (Chicago Asylum Office Feb. 21, 2001).

[60] For example, the Eighth Circuit held in Raffington v. I.N.S, 340 F.3d 720, 723 (8th Cir. 2003) that a person with mental illness did not meet the particular social group requirement, as did the Seventh Circuit in Disha v. Gonzales, 207 F.App’x 694, 695 (7th Cir. 2006) (unpublished); See also U.S. v. Rodriguez-Chacon, 478 F. App’x 391 (9th Cir. 2012) (Court affirmed BIA finding that man with cognitive disability had not proven he was a member of a particular social group); Korneekov v. Holder, 347 F. App’x 93, 95, 99 (5th Cir. 2009) (affirming the BIA finding that petitioners would not be persecuted in Russia based on their status as people with intellectual disabilities, despite evidence that showed the discrimination and abuse that people with intellectual disabilities suffered in Russia at that time); Similarly, in Mendoza–Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (per curiam), the Court denied withholding of removal of a petitioner whose proposed social group, insulin-dependent persons with mental health problems, was held to not be a particular social group.

[61] The INA does not specifically define persecution, however the courts have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.” Matter of Laipenieks, 18 I&N Dec. 433, 457 (BIA 1983). The United Nations High Commission on Refugees (UNHCR) has promulgated the following similar definition: “it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.” The Office of the United Nations High Commissioner, The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, (Geneva, 1979), HCR/1P/Eng./Rev.2, paragraph 5 (hereinafter “UNHCR Handbook”).

[62] Sabi Ardalan and Palmer Lawrence, The Importance of Nonphysical Harm: Psychological Harm and Violations of Economic, Social, and Cultural Rights in the U.S. Asylum Law, 14-09 IMMIGRATION BRIEFINGS (September 2014).

[63] Deliberate imposition of severe economic disadvantage which threatens alien’s life or freedom may constitute “persecution,” of the kind required to support asylum claim. INA §§ 101(a)(42), 208, as amended, 8 U.S.C.A. §§ 1101(a)(42), 1158. See e.g. Li v. Attorney General of the US, 400 F.3d 157 (3d Cir. 2005)(finding economic persecution where a Chinese national was fined more than eighteen-months’ salary, blacklisted from any government employment and from most other forms of legitimate employment, lost his health benefits, school tuition and food rations, and suffered from having his household furniture and appliances confiscated after violating China’s population control policies). See also UNHCR Handbook at ¶54 (Discrimination may amount to persecution “if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.).; see also nds for persecution, though the list here has definitely been taken.

[64] See 8 C.F.R. § 1208.13(b)(1).

[65] See Arlene S. Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights 29-31(2015). For a discussion of treatment of people with disabilities under Nazism which gave rise to the development of the entire international human rights regime; see e.g., Suzanne E. Evans, Hitler’s Forgotten Victims: The Holocaust and the Disabled (2016).

[66] For a general discussion of the mistreatment that people with disabilities face throughout the world and which the UN Convention on the Rights of People with Disabilities seeks to address, including the right to be free from forced sterilization, see Arlene S. Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights 159-220 (2015). For a discussion of the sterilization practices around the world, see Torture in Health Care Report, Reflections on the Special Rapporteur’s 2013 Thematic Report at http://antitorture.org/wp-content/uploads/2014/03/PDF_Torture_in_Healthcare_Publication.pdf ; Commentary, Disabled People Are Still Being Forcibly Sterilized—So Why Isn’t Anyone Talking About It? Rewire News (November 17, 2014), available at https://rewire.news/article/2014/11/17/disabled-people-still-forcibly-sterilized-isnt-anyone-talking. See also In re Guardianship of Kennedy (Iowa, Apr, 18. 2014) (guardian seeks to consent to vasectomy of man with intellectual disability), available at  http://caselaw.findlaw.com/ia-supreme-court/1668023.html.

[67] Special Rapporteur on the Rights of Persons with Disabilities, Sexual and Reproductive Health and Rights of Young Women and Girls with Disabilities, A/72/133 (October 207) available at   http://www.embracingdiversity.net/report/sexual-and-reproductive-health-and-rights-of-girls-and-young-women-with-disabilities_1026.

[68] 8 U.S.C. § 1158(b) (1988); 8 U.S.C.A. § 1101(a)(42) (2014). See also Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 159 (1993); see also I.N.S. v. Cardozo-Fonseca, 480 U.S. 421, 428 n.5 (1987).

[69] Reports of Disability Rights International are available at https://www.driadvocacy.org/media-gallery/our-reports-publications/. See also Human Rights Watch reports on conditions of people with disabilities in various countries at https://www.hrw.org/topic/disability-rights.

[70] See Arlene S. Kanter and Khawla Wakkaf, Children with Disabilities and the Syrian Conflict, 7 Impunity Watch Annual Review (2016-17).

[71] See Tchoukhrova v. Gonzalez, 404 F. 3d 1181 (9th Cir. 2005), cert granted, judgment vacated on other grounds, 549 U.S. 801 (2006) (remanding for further consideration) (finding that “although denying medical care or education on the basis of race, ethnicity, religion, political opinion, or membership in a particular social group is, at a minimum, discrimination, where the denial seriously jeopardizes the health or welfare of the affected individuals, a finding of persecution is warranted.”); Id. at 1189. Although the Supreme Court vacated the Ninth Circuit’s decision on other grounds, the family was eventually granted asylum. Immigration Judge Summary Order, June 11, 2007. See also Tinizaray-Narvaez v. Attorney General Of U.S., 2009 WL 4048859 (3d Cir. 2009) (holding that the BIA had abused its discretion by not allowing a psychologist to testify as to the hardship posed to the petitioner’s mentally ill citizen daughter.); Cruz-Rendon v. Holder 603 F.3d 1104 (9th Cir. 2009) (holding that the IJ had not granted a “full and fair hearing” on the question of hardship to petitioner’s disabled son because the IJ did not grant a continuance.).  See also Boer-Sedano v. Gonzalez, 418 F. 3d 102, (9th Cir. 2005) (upholding the asylum eligibility of a gay man with AIDS from Mexico who suffered past persecution and for whom relocation was deemed unreasonable partly due to AIDS-related health concerns); Matter of Faronda Blandon, 78 Interpreter Releases 1173 (July 16, 2001) (granting withholding to a mentally incompetent homeless man from Colombia because he would likely suffer abuse amounting to persecution, torture, or killing as part of “social purges” in Colombia).

[72] For example, in a 2012 Case from Mexico, Meraz-Medosa v. Holder, 501 F. App’x 706 (9th Cir. 2012), the court denied asylum, withholding, and CAT protection to a man with a hearing disability on the ground that his past experiences and future fears did not rise to the level of persecution. See also Akhtar v. Att’y Gen. of U.S., 138 F. App’x. 481, 483 (3d Cir. 2005) (upholding the BIA’s determination that Akhtar, who had suffered brain damage and physical disabilities as a result of a car accident, had failed to prove the mistreatment and teasing he would experience upon return to Pakistan rose to the level of persecution where there had been no incident in the four years preceding his medical trip to the United States). In 2007, the same court, held that the persecution of mentally ill parents may be imputed to their child in Xian Chun Dong v. Att’y Gen. of U.S., 216 F. App’x. 209, 211-12 (3d Cir. 2007).); Hernandez- Castaneda v. Lynch, 671 F App’x 565 (9th Cir. 2016) ( denying asylum, withholding, and CAT protection to a disabled former gang member with a disability on the basis of a lack of evidence that he would be targeted for persecution by the government or by gangs with government acquiescence); Inda-Ulloa v. Holder, 577 F. App’x 649, (9th Cir. 2014) (denying asylum because the petitioner failed to demonstrate a well-founded fear of future persecution in Mexico based on his mental disability); Gokce v. Gonzales, 247 F.Appx 52 (9th Cir. 2007) (refraining from finding that people with mental illness in Turkey are a particular social group, and finding that the petitioner failed to establish evidence of past persecution, a well-founded fear of future persecution, or that it would be more likely than not that he would be tortured upon return, citing Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) and Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995); Massaquoi v. Att’y Gen., 313 F. App’x. 483, 486 (3d Cir. 2008) (denying withholding of removal and CAT protection to a mentally ill Liberian man since his doctor’s testimony, was “tenuous, speculative, uncorroborated” and did not prove a state policy against the mentally ill); Rusak v. Holder, 734 F.3d 894, 986 (9th Cir. 2013) (holding that a deaf woman teased by teachers and classmates failed so show persecution on account of disability and remanded to the BIA to reconsider in light of her eligibility for asylum on the basis of religion discrimination); Tobar-Serrano v. Holder, 338 F. App’x 682, 683 (9th Cir. 2009) (denying asylum to an El Salvadoran man because his disability was found not to be a “central reason” for past harm suffered, even if he was a member of a particular social group); Estrada-Rodriguez v. Lynch, 825 F.3d 397 (8th Cir. 2016) (seeking cancellation of removal based on extreme hardship to his child but Court ordered removal because of parent’s crime of moral turpitude);  Fahmy v. Holder, 576 F. App’x 524, 529 (6th Cir. 2014) (failing to demonstrate that the Egyptian government denied medication to people with paranoid schizophrenia); Lopez Perez v. Holder, 587 F. 3d 456 (1st Cir. 2009) (denying asylum, withholding, and CAT protection to a woman whose husband has Parkinson’s and who had been harassed in the past by her family in Guatemala); Cano-Saldarriaga, v. Holder, 729 F. 3d 25 (1st Cir. 2013) (denying petition for review of cancellation of removal and CAT, which had been granted based on petitioner’s mental disability, due to pending applications for relief); Cole v. Attn’y Gen., 712 F.3d 517 (11th Cir. 2013) (denying review of asylum, withholding, and CAT protection to a man with developmental disabilities on the grounds that the Jamaican government was working now to protect people with such disabilities); Escobar v. Lynch, 676 F.App’x 670 (9th Cir. 2017)( denying asylum, withholding, and CAT protection to the mother of a disabled 17-year-old Ecuadorian boy). Courts also have denied claims for asylum and withholding of removal on the grounds of timeliness, see Torres-Derichy v. Lynch, 636 F. App’x 707 (9th Cir. 2016) (denying withholding to a mother who justified her delay in filing as “changed circumstances” based on the birth and diagnosis of disability of her son) and on the grounds of no changed circumstances to warrant review in Ibrahim v. Att’y Gen., 2017 WL 4310368 (3d Cir. 2017) (denying withholding of man with physical disability from Somalia by finding that NGO report on suffering by Somalia people with disabilities was “outside of the record” and did not show “material change” in country conditions.)

[73] Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (noting that a CAT claim “is not merely a subset of claims for either asylum or withholding of removal . . . In an important sense, then, the Convention’s reach is both broader and narrower than that of a claim for asylum or withholding of deportation: coverage is broader because a petitioner need not show that he or she would be tortured “on account of” a protected ground; it is narrower, however, because the petitioner must show that it is “more likely than not” that he or she will be tortured, and not simply persecuted upon removal to a given country”).

[74] In 2008, the Special Rapporteur, Manfred Nowak, analyzed, for the first time, the meaning of torture, cruel, and inhuman treatment in the context of treatment and care for people with mental disabilities in his report entitled Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment, Report transmitted by note of the Secretary-General, ¶ 49, U.N. Doc. A/63/175 (July 28, 2008). For example, he wrote that the pain and suffering that is required to satisfy the first element of torture, need not be based on objective facts, but may be based on subjective evidence relating to the person’s age, health, or disability. Id. at 186. More recently, on February 1, 2013, Special Rapporteur, Juan Méndez, issued a Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment with Respect to the CRPD. This report discusses what type of medical treatment constitutes torture. He suggests, for example, that certain medical practices, when provided to a person because of the person’s disability, and without free and informed consent, can constitute inhuman and degrading treatment. Office of the High Commissioner on Human Rights, When a Health Carer Becomes a Torturer, Key Report by the UN Special Rapporteur on Torture, United Nations Human Rights (Mar. 5, 2013). In February 2018, the Special Rapporteur, Nils Melzer, submitted his Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the Human Rights Council A/HRC/37/50 (Feb. 26, 2018). In it, he observes that “[e]ven when discounting widespread underreporting and focusing exclusively on recognized refugees and asylum seekers, this extrapolates to a staggering 7 million victims of torture, thus raising serious questions as to the compatibility of current laws, policies and practices with the universal prohibition of torture and ill-treatment.” Id. at 4.

[75] In Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) he 9th Circuit that the failure of a man Sri Lanka to state a cognizable claim for asylum did not preclude relief under the CAT. See also Jean-Pierre v. Atty. Gen. of U.S., 500 F.3d 1315, 1326-27 (11th Cir., 2007) (remanding case to the BIA to determine CAT claim by Haitian man with AIDS who claimed that he would be immediately sent to a prison for an indefinite term and that in light of his medical condition, it was highly likely that he would be subjected to physical torture by prison guards); Roye v. Att’y Gen., 693 F.3d 333, 343 (3d Cir., 2012) (finding that although a lack of resources and deplorable conditions in prison do not in themselves constitute torture, the state’s willful blindness to the disparate impact on the mentally ill may constitute intention under CAT).

[76] See Joseph v. Att’y Gen. , 392 F. App’x. 934, 937 (3d Cir. 2010) (finding that deplorable Haitian prison conditions did not amount to torture); In re Gloria Moscoso Caba, 2008 WL 339675 (BIA) (finding there was no torture); Lysaire v. Atty. Gen. , 368 F. App’x. 329, 332 (3d Cir. 2010) (finding that where government officials withheld medication until they were paid, it was not torture on account of mental illness, but “extortion of pecuniary gain.”); Villegas v. Mukasey, 523 F. 3d 984 (9th Cir.) (finding that specific intent necessary for the CAT claim was not shown); Thiersaint v. Holder, 464 F. App’x 16 (2d Cir. 2012) (denying CAT protection to a Haitian man with a physical disability because he failed to show that he would be “singled out for torture,” despite “unduly harsh conditions” for criminal deportees); Harbin v. Sessions, 860 F. 3d 58 (2d Cir. 2017) (holding that a mentally ill criminal deportee from Grenada not eligible for CAT protection); Roig v Holder, 580 F. App’x 4 (2d Cir. 2014) (finding that a claim of torture in Cuban prison and lack of work due to his physical disability merely “speculative.”); Ke Lin v. Holder 571 F. App’x 46 (2d Cir. 2014) (finding that a Chinese man’s fear of torture in the form of sterilization was “speculative”).

[77] See e.g., Ordonez-Quino v. Holder, 760 F. 3d 80 (1st Cir. 2014) (remanding the case to determine whether an indigenous man made deaf by a military attack as a child in Guatemala suffered past persecution in light of the cumulative evidence, or alternatively, whether severe harm and the long-lasting effects thereof made him eligible for humanitarian asylum) Cf. Kholyavskiy v. Mukasey, 540 F.3d 555, 573 (7th Cir. 2008) (holding that Petitioner’s experiences in Russia and the resulting effects on his mental health did not meet the “severe” or “atrocious” level of past persecution required under Matter of Chen, 20 I. & N. Dec. 16 (B.I.A. 1989) or 8 CFR § 1208.13(b)(1)(iii)(A), the first ground for humanitarian asylum; however, since removal to Russia would result in his inability to obtain medical care or housing such “serious harms” met the second ground for humanitarian asylum under 8 CFR § 1208.13(b)(1)(iii)(B), resulting in the Seventh Circuit’s decision to remand the case or further consideration by the BIA). A year after Kholyavskiy,, in In re Elvin Renaldo Hartley, WL 3063581(BIA 2009), the BIA granted an “extreme hardship” waiver to a Jamaican citizen who suffered from schizoaffective disorder and required medication, entitling him to consideration under a humanitarian grant court although the BIA noted that a lack of resources was not per se persecution, it can cause undue hardship upon his return to Jamaica. See also Maria Baldini-Potermin, Past Persecution, Mental Illness and Humanitarian Asylum: Creating the Record to Win the Claim 86 No. 4 Interpreter Releases 261(2009).

[78] Disha v. Gonzales, 207 F.App’x 694, 696 (7th Cir. 2006) (unpublished) (finding that although he did not qualify for withholding of removal because the group of “all mental patients who cannot receive proper medical treatment in Albania” was too large, the court chose to waive the one year filing deadline for his asylum claim).

[79] But see Jaswant LAL; Shakuntla Lal; Rikesh Lal v. INS, 255 F.3d 998 (9th Cir. 2001) amended at 268 F.3d 1148 (9th Cir. 2001) (interpreting the same language as the court did in Matter of Chen, 20 I. & N. Dec. 16 (B.I.A. 1989), this court held that petitioner need not prove lasting disability to demonstrate changed circumstances to support claim of well-founded fear of future persecution).

[80] Ordonez-Quino v. Holder, 760 F.3d 80 (1st Cir. 2014).

[81] In re Elvin Renaldo Hartley, WL 3063581(BIA 2009).

[82] See United Nations Convention Relating to the Status of Refugees art. 33, adopted July 28, 1951, 189 U.N.T.S. 150, G.A. Res. 2198 (XXI) (July 28, 1951); Protocol Relating to the Status of Refugees, adopted January 31, 1967, 606 U.N.T.S. 267, G.A. Res. 2198 (XXI) (Jan. 31,1967). Article 1A(2) of the Refugee Convention defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”   See also UNHCR, ‘Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’, 7 May 2002, HCR/GIP/02/02, para 11.

[83] The Convention on the Rights of People with Disabilities (CRPD) was adopted by the UN in 2006, entered in to force in 2008, and has since been adopted by 177 countries, but not the United States. President Obama signed the, opted 3e of the group of “ion, though the list here has definitely been taken CRPD in 2009, however, the Senate failed to garner the 2/3 votes needed for ratification. See Arlene S. Kanter, The Failure of the United States to Ratify the UN Convention on the Rights of People with Disabilities, in Johnson, K. and Kakoullis, E., eds. Recognising Rights in Different Cultural Contexts: The United Nations Convention on the Rights of Persons with Disabilities (CRPD), (forthcoming 2018). Although the CRPD does not specifically address the rights of refugees or others seeking relief from deportation on the grounds of persecution based on disability, there is general consensus that the general principles of the CRPD as well as the Preamble and specific articles in the CRPD apply in equal force to the rights of refugees and asylees with disabilities, at least in those countries that have ratified it. As scholars have written, “[t]here is nothing in the text of the CRPD to suggest an intention that the CRPD should apply only to nationals. On the contrary, the CRPD is premised on the principle of universality. The purpose of the CRPD, stated in article 1, is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’” Mary Crock, Christine Ernst, Ron McCallum, Where Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities, 21 International Journal of Refugee Law 735, 740 (2012). Moreover, the Executive Committee of UNHCR has concluded that persons with disabilities are entitled to protection as refugees and that State Parties are responsible “to take all appropriate measures to protect and assist persons with disabilities, in all situations.” See Conclusion on Refugees with Disabilities and Other Persons with Disabilities Protected and Assisted by UNHCR, No. 110 (LXI) – 2010, Executive Committee 61st session, United Nations General Assembly document A/AC.96/1095, UNHCR Executive Committee of the High Commissioner’s Programme, 12 October 2010, available at http://www.unhcr.org/excom/exconc/4cbeb1a99/conclusion-refugees-disabilities-other-persons-disabilities-protected-assisted.html.