Practice Advisory Series
SEEKING ASYLUM WITH A DISABILITY-BASED PARTICULAR SOCIAL GROUP
November 2024
Center for Human Rights and Constitutional Law
256 S. Occidental Blvd.
Los Angeles, CA 90057
Mail: PO Box 770
Bell Gardens, CA 90201
Representing individuals with disabilities in any context requires an openness to understanding the challenges these clients face in their daily lives, so that their lived realities can be effectively communicated to decision-makers. In the immigration context, cultural differences only add to the complexity. This Advisory seeks to address some of the unique challenges to pursuing asylum claims where the individual’s persecution is based upon their disability, including defining the disability-based particular social group (“PSG”) and establishing a nexus between the harm and the individual’s disability. Simultaneously, the Advisory also aims to highlight important considerations for practitioners presenting such disability-based claims. Although this Advisory is intended for Ninth Circuit practitioners, the cases it highlights are drawn from across the country, and many of the challenges discussed are applicable regardless of practice location.[1]
I. IMMIGRATION AGENCIES’ RECOGNITION OF DISABILITY-BASED ASYLUM CLAIMS
For an individual to qualify for asylum in the United States, they must be able to demonstrate a well-founded fear of persecution on account of “race, religion, nationality, membership in a particular group, or political opinion.”[2] Since disability itself is not explicitly named within this list, it must, as a result, fall under the “membership in a particular social group” category.
According to a report from Disability Rights International, the Board of Immigration Appeals (“BIA”) first recognized a disability-based PSG in the unpublished decision of Ricardo de Santiago-Carillo (BIA Jun. 15, 2000).[3] There, the BIA reportedly held that “people with serious mental illness” qualifies as a PSG “given their close affiliation and immutable characteristic of mental illness” and because members of the 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.”[4] The DRI report asserts that the decision established for the first time “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.”[5]
In addition, USCIS’s “Asylum Division has granted asylum to people with disabilities when the applicant established that he or she was persecuted in the past or would be persecuted in the future on account of his or her membership in a particular social group, defined as individuals who share those disabilities.”[6]
II. THE CHALLENGES OF SUCCESSFULLY PRESENTING A DISABILITY-BASED ASYLUM CLAIM
Since Ricardo de Santiago-Carillo, there have been an increasing number of cases where membership in a disability-based PSG is raised as a reason for the applicant’s persecution and thus the grounds for seeking protection. USCIS even explicitly trains its officers on disability-based PSGs, advising that “[t]he proper analysis is whether (1) the disability is immutable; (2) persons who share that disability are socially distinct in the applicant’s society; and (3) the group is particularly defined.”[7]
Once a cognizable PSG has been defined, practitioners must also take great care to demonstrate that the harm feared or suffered rises to the level of persecution. To do so often requires convincing an adjudicator that the harm faced was something more than just mere discrimination that is unprotected by asylum law.
Finally, practitioners must clearly draw the connection between the persecution and the PSG, establishing a nexus between the two to qualify for asylum. Doing so requires careful articulation of the “one central reason” standard for asylum claims.
A. Defining a Cognizable Disability-Based Particular Social Group
Defining a disability-based PSG is one of the core challenges to successfully presenting a disability-based asylum claim. The term “particular social group” was first defined by the BIA in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). There, the BIA concluded that “whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”[8] This has been described as a requirement that the group be “defined by literally immutable or fundamental characteristics.”[9] However, in the years that followed, the BIA has added to Acosta’s simple and functional immutability test by adding in new requirements for “social distinction” and “particularity.”[10] Thus, today, to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”[11]
1. Establishing Immutability
Immutability is in many ways the “core” element required for the establishment of a PSG. An immutable characteristic is “one that the members of the group cannot change or should not be required to change because it is fundamental to their individual identities or consciences.”[12] Although this immutability element may seem straightforward when the PSG is based on an applicant’s disability, adjudicators often struggle with the issue. For example, the Fourth Circuit in Temu v. Holder, 740 F.3d 887, 897 (4th Cir. 2014), noted that the BIA has found that “severe mental illness is immutable in two unpublished opinions, explicitly ruling that ‘bipolar disorder [is] a chronic psychiatric condition subject to treatment but not cure, and thus it [is] an immutable characteristic” but nevertheless had to reverse a BIA ruling inconsistent with those decisions, in which the Board had held that bipolar disorder was not immutable because the applicant’s symptoms “can be controlled with medication.”[13] Critically, the court in Temu held that “when an individual suffers from an incurable mental illness, it is of no relevance that somewhere in the world, there exists medication that can help him control the illness,” and “[i]f he cannot access the medication, his behavior is as effectively immutable as if the medication did not exist.”[14] As that case demonstrates, for applicants who manage and treat their disability through medications or otherwise, they often must educate adjudicators that the immutability of their disability is not erased simply because their symptoms and behaviors can be managed with treatment.
Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008) presents an example. There, the applicant had been diagnosed with severe social anxiety disorder which a doctor opined was not “amenable to change,” and he argued that “the mentally ill constitute a [PSG] for purposes of asylum.”[15] He presented expert testimony that, while the applicant was receiving a combination of medications for his disorder and was responding well to them, the drugs would not be available in Russia.[16] Despite this information, the BIA affirmed the IJ’s finding that the applicant’s mental illness did not constitute a PSG because “his illness is not immutable” and it “can be treated with medication such that by his own actions he will be able to avoid persecution.”[17] On review, however, the Seventh Circuit held that this determination was not supported by the record, pointing to the applicant’s doctor’s conclusions that the applicant’s disorders were both permanent and not completely controlled through medication.[18]
These cases demonstrate the importance of practitioners clearly establishing the facts around an applicant’s usage and access to medication in the record. Even if an applicant takes medication to alleviate the symptoms and impacts of their disability, the record should still make clear that the underlying disability is not curable and is therefore immutable. Additionally, if possible, the practitioner should establish in the record that the applicant, if deported, would not have access to the medications or treatments needed to control the symptoms of their disability. While such a showing should not be necessary to demonstrate immutability, it may help to prevent misunderstandings by adjudicators.
2. Establishing Particularity
The particularity and social distinction elements are technically distinct, and they should be separately addressed in any briefing or arguments on behalf of a client, even though courts often erroneously analyze these elements together.[19]
The requirement of particularity “is included in the plain language of the statute.”[20] It is a separate requirement from immutability because “not every immutable characteristic is sufficiently precise to define a particular social group.”[21] To meet the particularity element, a proposed PSG must “provide a clear benchmark for determining who falls within the group.”[22] “The group must also be discrete and have definable boundaries – it must not be amorphous, overbroad, diffuse, or subjective.”[23] For purposes of defining a PSG, “[c]ourts have held that a particular social group should not be defined so broadly as to make it difficult to distinguish group members from others in the society in which they live, or so narrowly that what is defined does not constitute a meaningful grouping.”[24] Unlike the social distinction requirement, particularity does not focus on public perception, but instead, “the focus of the particularity requirement is whether the group is discrete or is, instead, amorphous.”[25] One of the most difficult issues in defining a PSG in the disability context is ensuring that the definition is not so narrow as to not actually constitute a socially distinct group, but not so broad that it is too amorphous to meet the particularity requirement.
In Raffington v. INS, 340 F.3d 720 (8th Cir. 2003), for instance, the applicant argued that she was eligible for asylum as a member of a PSG defined as either “mentally ill Jamaicans” or “mentally ill female Jamaicans.”[26] Thus, although she specifically experienced depression and suicidal behavior, the proposed PSG was defined more broadly to encompass all Jamaicans with any sort of mental illness.[27] Consequently, the Eighth Circuit held that the “mentally ill are too large and diverse a group to qualify” and that they “are not ‘a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.”[28] Although the court in Raffington did not explicitly articulate it as such, its holding appears to be grounded in a failure to meet the particularity requirement. Raffington was an early case where an applicant’s disability-based PSG was determined to be overbroad.
In Mendoza-Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013), a Mexican man seeking withholding of removal based on disability-based persecution faced similar challenges to those in Raffington. The applicant was diagnosed with insulin-dependent diabetes, had previously gone into a diabetic coma, and was unable to work due to diabetes-related amputations.[29] He also experienced depression and posttraumatic stress disorder.[30] Based on these disabilities, he proposed PSGs “variously described” as “disabled persons,” “insulin-dependent diabetics,” and “insulin-dependent persons with mental-health problems, including posttraumatic stress and depressive disorders.”[31] He asserted that additional characteristics associated to these proposed groups included “an inability to work, a lack of medical insurance, and a lack of money from other sources,” all of which “result in an inability to obtain essential medication, including insulin” in Mexico.[32] While the IJ granted withholding of removal based on the applicant’s “fear of persecution from the ‘cumulative threat to his survival from poverty and the limiting effects of his disabilities on his employability, access to housing, necessary lifesaving medications, and physical and mental health treatment,” the BIA reversed, rejecting the proposed PSG for lack of particularity.[33]
On review, the Ninth Circuit also rejected the applicant’s proposed PSG for lack of particularity. The court explained,
The groups [applicant] proposed, including the group he proposed before the BIA, include large numbers of people with different conditions and in different circumstances. Many individuals in Mexico have serious chronic health problems, including insulin-dependent diabetes or mental illness. Individuals may have these conditions separately or in combination, and in varying degrees of severity. There is evidence in the record that over half of the Mexican population lacks health insurance. Those who lack health insurance must pay for medication that the Mexican government does not provide for free. Insulin is one of these medications.[34]
Thus, the court expressed a concern with the proposed PSGs being overbroad and including too wide a variety of individuals. The lack of clarity regarding the proposed PSG and who would be included contributed to the negative outcome, but ultimately, as in Raffington, the proposed PSG was found to be overly broad.
Disability-based PSGs were again addressed in Temu v. Holder, 740 F.3d 887 (4th Cir. 2014), but this time, the court found that the PSG was not too broadly defined. As noted above, in Temu, the applicant lived with severe bipolar disorder and sought asylum due to persecution on account of membership in a PSG defined as “individuals with bipolar disorder who exhibit erratic behavior.”[35] Both the IJ and the BIA rejected this PSG due to lack of particularity, social distinction, and immutability.[36] On review, however, the Fourth Circuit strongly rejected those holdings.[37]
The BIA in Temu had held that “bipolar disorder is too broad and erratic behavior is too fuzzy.”[38] The Fourth Circuit, however, held that the BIA had committed legal error by “splitting [applicant’s] group in two and rejecting each part, rather than considering it as a whole.”[39] The court acknowledged that while “[i]t may well be that mental illness lacks particular boundaries, since the label covers a huge swatch of illness that ranges from life-ending to innocuous,” the applicant’s proposed PSG “does not suffer from the same shortcoming, because it is limited to a specific mental illness so severe that individuals are visibly, identifiably disturbed.”[40] The court pointed to both the American Psychiatric Association, Diagnostic and Statistical Manual and the WHO’s International Statistical Classification of Diseases and Related Health Problems as providing the “adequate benchmark” needed to provide boundaries to the “erratic behavior” component of the proposed PSG.[41] The court concluded that the BIA was required to consider the applicant’s proposed PSG as a whole and that “[n]othing in the statute requires that if a group is defined by a collection of traits, that each individual trait must meet all the criteria for a ‘particular social group.”[42]
For practitioners seeking to define a disability-based PSG, it is important to be aware of how these proposed PSGs may be considered overbroad and how that overbreadth may then be used to find a lack of particularity. Practitioners may benefit from preemptively addressing how their proposed PSG does not suffer from overbreadth, given that this flaw is often used to find disability-based PSGs non-cognizable. In particular, it is likely worth reiterating that the proposed PSG is meant to be evaluated as a whole, and that the traits identified should not be split apart for separate analysis.
3. Establishing Social Distinction
Unlike particularity or immutability, the social distinction element requires that the relevant society sees the proposed PSG as distinct within that society. Social distinction, thus, requires “evidence showing that the society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group.”[43] Although some older cases refer to this requirement as “social visibility,” the phrase “‘social distinction’ more accurately describes the function of the requirement and reflects that it is not intended to require ‘literal,’ ‘ocular,’ or ‘on-sight’ visibility.”[44] It is important to note that for this element, what is at issue is the perception of the relevant society, not the perception of the persecutor.[45]
As earlier mentioned, in Temu, the BIA rejected the applicant’s proposed PSG due to a lack of social distinction among other things. Expert testimony, however, established that mental illness is considered shameful in Tanzanian society.[46] According to the expert, within Tanzanian culture, “severe mental illness with visibly erratic behavior is seen as a manifestation of demonic possession,” and the Tanzanian people “have a label for the group, referring to those with visibly severe mental illness as ‘mwenda wazimu,’ which means demon-possessed.”[47] This fear and disdain even extended to Tanzanian medical professionals, who like the rest of Tanzanian society, believe that this demonic possession is contagious.[48] Furthermore, the record established that the applicant had previously been referred to numerous times as “mwenda wazimu” by both medical professionals and prison guards, and that when he suffered abuse from his nurses, he was told “this is how we treat people who are mentally ill like you.”[49] Despite this strong evidence demonstrating how the applicant’s proposed PSG is viewed as distinct within Tanzanian society, the BIA found that “while ‘Tanzanian society unquestionably targets individuals who exhibit erratic behavior for serious forms of mistreatment,’ this mistreatment is not ‘limited to those who have a diagnosis of bipolar disorder.”[50] Rejecting that approach, the Fourth Circuit found it “clear that Tanzanians view those with severe, chronic mental illness who exhibit erratic behavior as a group.”[51] The court emphasized that “[t]he fact that Tanzanians are overbroad in assigning [the label “mwenda wazimu”] to individuals does not show that social visibility is lacking” because Tanzanians “still appear to view the ‘mwenda wazimu’ as a group, and that is all that social visibility requires.”[52]
Moreover, the court in Temu further noted that social distinction is also supported when the proposed group is “singled out for worse treatment than other groups.”[53] The facts of this case, for example, demonstrated that while all those in prison were abused, the applicant was “singled out for worse abuse, with the exception of other prisoners with mental illness, who received the same increased abuse as [the applicant].”[54] The court explained that “conclud[ing] that any time a persecutor’s net is too large, social visibility must be lacking” would be “folly.”[55] As a result, the Fourth Circuit vacated the BIA’s social visibility finding due to legal error.[56] The court then ultimately reversed the BIA’s rejection of the proposed PSG, and in doing so, changed course from prior case law which had been steadily rejecting disability-based PSGs due to issues of the proposed PSG being overbroad.
In Granados v. Garland, 992 F.3d 755 (9th Cir. 2021), the Ninth Circuit considered a similar PSG as was proposed in Temu. The applicant in Granados defined his PSG as “El Salvadoran men with intellectual disabilities who exhibit erratic behavior’ or in the alternative, ‘indigent El Salvadoran men, lacking familial support, suffering from severe mental disabilities and exhibiting bizarre behavior.”[57] Several clinical evaluations all diagnosed him with an “Intellectual Disability, as defined in the Diagnostic and Statistical Manual of Medical Disorders,” a handbook published by the American Psychiatric Association [hereinafter Manual].[58] The BIA held that the proposed PSG was “not sufficiently particular, finding that the terms ‘intellectual disability’ and ‘erratic behavior’ rendered the proposed group ‘amorphous, overbroad, diffuse, [and] subjective” because “[t]he group could include individuals with vastly different intellectual disabilities as well as diverse behavioral manifestations.” [59] The BIA further determined that the proposed PSG lacked social distinction as the “group was not a ‘meaningful social unit, distinct from the larger population of mentally ill individuals’ in El Salvador.”[60]
On review, however, the Ninth Circuit concluded that the IJ and the BIA had incorrectly dealt with the term “intellectual disability,” noting that they had “treated the term … as if it were applied to a layperson” rather than considering the term as a reference to “an explicit medical diagnosis with several specific characteristics.”[61] Specifically, the court pointed out that the applicant “was diagnosed with ‘intellectual disability’ as that term is used within the psychological profession,” and the proposed PSG “did not encompass all mental illnesses and was not based on a lay description but was limited to individuals with a specific diagnosis of ‘intellectual disability,’ as defined by the [Manual].”[62] The court also found that “the possibility that individuals within the [Intellectual Disability] group may have sub-diagnoses or concurrent diagnoses does not make the group overbroad.”[63] Ultimately, the fact that membership in the PSG can be determined by “clinical diagnoses by licensed professionals” was sufficient to meet the particularity requirement.[64]
In regards to social distinction, the court pointed out that “[t]he possibility that individuals with intellectual disabilities are subsumed in a larger group of persecuted individuals with mental illnesses does not control the social distinction analysis, because the question is whether individuals with intellectual disabilities are singled out for greater persecution than the general population.”[65] Ultimately, the court advised that when considered as a “clinical term, ‘intellectual disability’ may satisfy the ‘particularity’ and ‘social distinction’ requirements necessary to qualify for asylum and withholding of removal” and remanded the case for further fact-finding consistent with the opinion.[66] The court also suggested that the applicant’s alternative PSG, which was not considered by the IJ, “arguably resolved some of the problems that the BIA and IJ had with the first proposed group” as it “offered several new limiting conditions.”[67]
For practitioners aiming to successfully define a disability-based PSG, it may be helpful to draw attention to the fact that just because a proposed PSG is subsumed within a larger group of persecuted individuals, the social distinction element is not defeated. Additionally, defining a disability-based PSG based on a professional diagnosis and its associated traits, such as those found in the American Psychiatric Association, Diagnostic and Statistical Manual, can be helpful in demonstrating social distinction as well as particularity.
B. Establishing a Nexus Between the Persecution and the Disability-Based PSG
Another challenge of presenting a disability-based asylum claim is establishing the nexus between the persecution and the disability-based PSG. An asylum applicant must establish that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”[68] The Ninth Circuit has clarified,
[A] motive is a “central reason if the persecutor would not have harmed the applicant if such motive did not exist. Likewise, a motive is a “central reason” if that motive, standing alone, would have led the persecutor to harm the applicant … [P]ersecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was “at least one central reason” for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.[69]
If a persecutor “would not have threatened… or planned to harm” the victim if the protected ground “did not exist,” then the protected ground constitutes one central reason.[70] In mixed-motive cases, even if there may be multiple reasons for the harm suffered, an applicant still “need only show that the protected ground is ‘one central reason’ for the persecution.”[71]
This “nexus” requirement requires consideration of all evidence, both direct and circumstantial.[72] A nexus to a protected ground may be established by an inference “that may clearly be drawn from facts in evidence.”[73] Moreover, the Ninth Circuit has recognized that a credible applicant’s uncontroverted testimony regarding a persecutor’s motivations may be sufficient to establish nexus.[74]
For applicants with disabilities, this aspect of their asylum claim can be difficult to prove. Some courts have denied asylum because they mistakenly view the persecutory behavior as in some way warranted by the disability itself – particularly when it comes to medical care - evidencing the prejudices that applicants with disabilities face both in their home countries and here in the U.S.
In Perez-Rodriguez v. Barr, 951 F.3d 972 (8th Cir. 2020), a Mexican man claimed that he belonged to a PSG “consist[ing] of ‘individuals with schizophrenia who exhibit erratic behavior.”[75] He introduced evidence “regarding conditions in Mexico’s mental-health facilities” where “individuals are often bound, sometimes for extended periods, to prevent self-harm” and “others are left in isolation.”[76] Moreover, the court noted evidence that patients in these mental-health facilities were “observed sitting in their own bodily wastes” and that the “record contains stories of patients suffering rape and abuse at the hands of medical personnel.”[77] The applicant argued that while the Mexican government is aware of these conditions it “allows those conditions to persist ‘because it believes its methods are consistent with the [population’s] view of the mentally ill.”[78]
Although the IJ granted the asylum request, the BIA reversed, “concluding that [applicant] had failed to show (1) that his fear of persecution met the standard of objective reasonableness because family members could provide him care and (2) that he would be institutionalized if returned.”[79] On remand, the IJ again granted asylum, finding evidence that the applicant would be placed in a mental-health facility and that “the conditions within those institutions constituted government persecution.”[80] Specifically, the IJ discussed the use of physical restraints on patients, noting that the mental-health workers were “motivated by a desire to overcome the patients’ erratic behavior – one of the group’s defining characteristics.”[81]
The BIA again reversed, holding the IJ had “clearly erred in finding that [applicant] ‘would be subjected to persecutory harm on account of his particular social group membership if detained in a mental health facility.”[82] Pointing to evidence of other motivating factors, such as “lack of resources,” it concluded that the evidence failed to establish “that the health care workers would be motivated to harm the respondent on account of his status as a member of the proposed social group” and that “medical workers, in general, constrained individuals in an effort to protect them, not target them.”[83] Further, the BIA noted that “patients often received poor care due to a severe lack of resources”[84]
The BIA’s decision and reasoning in Perez-Rodriguez appears to conflict with some of its other decisions holding that “[p]unitive or malignant intent, or an intent to overcome the protected trait . . . is not required for an applicant to establish a nexus to a protected ground.”[85] USCIS, for example, trains its officers that when determining a persecutor’s motive, “[t]he relevant inquiry regarding motivation … is whether the persecutor has committed an intentional action, or intends to commit an intentional action, because of a characteristic (or perceived characteristic) of the victim.”[86] Therefore, the establishment of a nexus is not defeated if the persecutor does not intend harm or otherwise believes that they are actually helping the applicant.[87] Yet, on appeal, the Eighth Circuit affirmed, finding that “the evidence that the Mexican government persecutes certain mentally-ill citizens on account of group membership is not so substantial as to compel remand.”[88]
Similar issues with demonstrating a nexus between the proposed PSG and the alleged persecution also arose in Angel-Lopez v. United States AG, 853 F. App’x 440 (11th Cir. 2021). There, a Salvadoran man with schizophrenia proposed two PSGs: “(1) individuals from El Salvador who suffer from schizophrenia; and (2) individuals from El Salvador who suffer from schizophrenia and display erratic behavior.”[89] Positively, the BIA assumed these were cognizable PSGs based on the schizophrenia diagnosis, for which the applicant had submitted supporting psychiatric medical records.[90] To support his claim, he also submitted evidence related to the mistreatment of people with mental illness in El Salvador, including “the stigmatization of mental illness, incidents of abuse of the mentally ill, and their risk of becoming homeless, incarcerated, or involuntarily institutionalized.”[91] An expert witness “described the underfunded state of mental healthcare in El Salvador,” calling attention to the fact that “electroshock therapy was a ‘commonplace treatment’ at the sole public psychiatric hospital” and was “often’ delivered without anesthesia and without patient consent.”[92] The record further established that while the Salvadoran police were generally harsh with everyone, “individuals with psychological disabilities were at an ‘extreme risk of harm or abuse.”[93]
Despite all the evidence in the record, the BIA determined that the applicant had “failed to provide specific facts establishing a nexus between his membership in a particular social group and any harm he would experience.”[94] The BIA determined that “El Salvador’s treatment of the mentally ill was the result of underfunding and a lack of trained professionals, not on account of a desire to persecute the mentally ill.”[95] In regards to the electroshock therapy particularly, the BIA concluded that the applicant “had failed to show that it was administered with the specific intent to harm patients.”[96] Applying the “highly deferential substantial evidence test,” the Eleventh Circuit held that the evidence was not substantial enough to compel reversal, stating that “neither [the expert] declarations nor the remaining evidence compel a finding that any stigmatization and incidents of abuse, if they were to occur, would be motivated by a desire to harm the mentally ill rather than be the result of underfunded treatment and insufficient training programs in El Salvador, or that [applicant] would be ‘singled out’ for harsh treatment on account of his mental illness.”[97] Notably, the record indicated that the applicant “would have family support when he returned, because he could live with his father,” that “he was symptom-free and psychiatrically stable at that time, and he intended to continue using his medication in El Salvador.”[98]
In attempting to distinguish these cases, Ninth Circuit practitioners should be aware that the Eighth and Eleventh Circuits held only that the record did not “compel” reversal under the “deferential substantial evidence” standard,[99] meaning a different result could be justified at the IJ and BIA levels depending on the facts. Furthermore, they did not appear to apply the Ninth Circuit’s analysis for mixed-motive cases cited above, under which the issue is whether the harm would have occurred if the protected ground did not exist, and not merely whether some other reason might contribute to the persecution.[100] Additionally, they appeared to require the persecutor to intend to harm rather than to intend the act, seemingly requiring malignant intent in contradiction of both BIA and Ninth Circuit precedent.[101]
Practitioners should also recall that, for purposes of withholding of removal, the nexus requirement is relaxed. Although “[a]n asylum applicant must demonstrate that a protected ground was ‘at least one central reason’ for her persecution…, a withholding of removal applicant, on the other hand, must prove only that a cognizable protected ground is ‘a reason’ for future persecution.”[102] “Thus, although the overall standard of proof is more difficult to meet in withholding cases, the motive for persecution is easier to show.”[103] Thus, if an adjudicator is overly concerned by whether the “one central reason” standard has been met, a strenuous argument for withholding of removal in the alternative may be warranted.
Moreover, practitioners may benefit from highlighting precedent affirming that the persecutor does not need to intend harm, they need only intend to commit the persecutory act itself. This may be particularly helpful when the persecutory acts take place in a hospital or institution and are otherwise described by the persecutor as measures necessary to protect or aid the applicant.
III. CONCLUSION
For practitioners seeking to assist clients with disabilities in pursuing asylum and related protections, there are indeed unique challenges. However, if practitioners are aware of some of the most common issues seen in disability-based asylum claims, they can proactively address these and help educate adjudicators before they base their decisions on misguided assumptions about the law and the lived experiences of people with disabilities that are difficult to undo on appeal.
[1] Many circuit court cases cited in this Advisory rely on deference to agency interpretations of statutory terms like “particular social group.” Whether there are new arguments available to practitioners in the wake of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) is beyond the scope of this Advisory.
[2] Immigration and Nationality Act of 1952, § 101(a)(42)(A) (codified as amended at 8 U.S.C.A. § 1101(42)(A)).
[3] Eric Rosenthal and Arlene Kanter, The Right of People with Disabilities to Asylum and Protection from Deportation on the Grounds of Persecution or Torture Related to Their Disability (Apr. 20, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3171691.
[4] Id. (quoting Ricardo de Santiago-Carillo (BIA June 15, 2000) (unpublished decision)).
[5] Id.
[6] U.S. Citizenship and Immigr. Services, Refugee, Asylum, and Int’l Operations (RAIO) Directorate, Officer Training - RAIO Combined Training Program, Nexus – Particular Social Group at 35 (July 20, 2021), https://www.uscis.gov/sites/default/files/document/foia/Nexus_-_Particular_Social_Group_PSG_LP_RAIO.pdf.
[7] Id.
[8] Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
[9] Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security (May 28, 2021), https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/.
[10] Id.
[11] Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of M-E-V-G-, 26 I&N. Dec. 227, 237 (BIA 2014)). Consistent with this Ninth Circuit test, USCIS also posits that “[a]n applicant who is seeking asylum or refugee status based on membership in a particular social group must establish that the group is (1) composed of members who share a common immutable characteristic, (2) socially distinct within the society in question, and (3) defined with particularity.” USCIS RAIO supra, note 6, at 11-12 (citing Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208, 212-218 (BIA 2014)).
[12] Matter of Acosta, 19 I&N. Dec. at 233.
[13] Temu v. Holder, 740 F.3d 887, 897 (4th Cir. 2014) (citing In re -A-, (BIA May 31, 2007) (slip op); In re--, (BIA Nov. 15, 2013) (slip op) (finding immutability because bipolar illness is permanent regardless of medication)).
[14] Id.
[15] Kholyavskiy v. Mukasey, 540 F.3d 555, 572-73 (7th Cir. 2008).
[16] Id. at 561.
[17] Id. at 572-73.
[18] Id. at 573.
[19] Henriquez-Rivas v. Holder, 707 F.3d 1081, 1090 (9th Cir. 2013) (“Admittedly, both BIA and our own precedent have blended the ‘social visibility’ and ‘particularity’ analysis.”).
[20] Reyes, 842 F.3d at 1131.
[21] Id.
[22] Matter of M-E-V-G, 26 I&N. Dec. 227, 239 (BIA 2014) (citing Matter of Matter of A-M-E & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007)).
[23] Id.
[24] USCIS RAIO supra, note 6, at 17 (Jul. 20, 2021) (citing Sanchez-Trujillo v. INS, 801 F.2d 1571, 1575-1577 (9th Cir. 1986; Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991); Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003); Raffington v. INS, 340 F.3d 720, 723 (8th Cir. 2003)).
[25] Reyes, 842 F.3d at 1131 (citing Matter of W-G-R-, 26 I&N. Dec. 208, 214 (BIA 2014)).
[26] Raffington, 340 F.3d at 723.
[27] Id. at 722.
[28] Id. at 723 (citing Safaie v. INS, 25 F.3d 636, 640 (7th Cir. 1997)).
[29] Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir. 2013).
[30] Id.
[31] Id. at 1164.
[32] Id.
[33] Id. at 1163.
[34] Id. at 1164.
[35] Temu, 740 F.3d at 891.
[36] Id. at 890.
[37] Id. at 892.
[38] Id. at 895.
[39] Id. (citing Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011)).
[40] Id.
[41] Id.
[42] Id. at 896.
[43] Reyes, 842 F.3d at 1131–32 (citing W-G-R-, 26 I. & N. Dec. at 217).
[44] Id. at 1131.
[45] See Matter of M-E-V-G-, 26 I&N. Dec. at 240.
[46] Temu, 740 F.3d at 890.
[47] Id.
[48] Id.
[49] Id.
[50] Id. at 893.
[51] Id.
[52] Id. (citing Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013)).
[53] Id.
[54] Id. at 893-94.
[55] Id. at 894.
[56] Id.
[57] Granados v. Garland, 992 F.3d 755, 760 (9th Cir. 2021).
[58] Id. at 759-60.
[59] Id. at 758, 762.
[60] Id. 758.
[61] Id.
[62] Id. at 762.
[63] Id. at 763.
[64] Id.
[65] Id.
[66] Id. at 758.
[67] Id. at 764.
[68] 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added).
[69] Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009); see also Aden v. Wilkinson, 989 F.3d 1073, 1084 (9th Cir. 2021) (“To meet this ‘nexus’ requirement, an applicant must show that the protected ground was ‘at least one central reason’ the applicant was persecuted.”).
[70] Kaur v. Garland, 2 F.4th 823, 836 (9th Cir. 2021); see also In Re J-BN- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007) (“[T]he protected ground cannot play a minor role in the [asylum applicant’s] past mistreatment or fears of future mistreatment.”).
[71] Id. at 835; see also Orellana-Recinos v. Garland, 993 F.3d 851, 855 (10th Cir. 2021) (“[E]ven when the protected ground is ‘intertwined’ with unprotected reasons, the protected ground must still be a central reason.”).
[72] See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
[73] Cordon-Garcia v. I.N.S., 204 F.3d 985, 991 (9th Cir. 2000).
[74] See, e.g., Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018) (the applicant’s credible testimony establishes that the persecution he and his family suffered was “on account of” his family’s government and military service and also on account of imputed political opinion).
[75] Perez-Rodriguez v. Barr, 951 F.3d 972, 973 (8th Cir. 2020).
[76] Id. at 973.
[77] Id. at 974.
[78] Id.
[79] Id.
[80] Id.
[81] Id.
[82] Id.
[83] Id. at 974, 976.
[84] Id. at 974.
[85] U.S. Citizenship and Immigr. Services, Refugee, Asylum, and Int’l Operations (RAIO) Directorate, Officer Training - RAIO Combined Training Program – Nexus and the Protected Grounds at 13 (July 24, 2023), https://www.uscis.gov/sites/default/files/document/lesson-plans/Nexus_minus_PSG_RAIO_Lesson_Plan.pdf.
[86] Id. at 13 (citing Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); Pitcherskaia v. INS, 118 F.3d 641, 648 (9th Cir. 1997).
[87] Id.
[88] Perez-Rodridguez, 951 F.3d at 976.
[89] Angel-Lopez v. U.S. Att’y Gen., 853 F. App’x 440, 442 (11th Cir. 2021).
[90] Id. at 443,
[91] Id.
[92] Id. at 442.
[93] Id.
[94] Id.
[95] Id. at 443.
[96] Id. at 444.
[97] Id. at 444-45.
[98] Id. at 444.
[99] Perez-Rodridguez, 951 F.3d at 974-75.
[100] Kaur, 2 F.4th at 836.
[101] See USCIS RAIO supra, note 85, at 13-14.
[102] Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021).
[103] Id. (citing Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017)).
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