Document Type

Article

Disciplines

International Law

Abstract

The tradition of asylum law in the United States reflects the nation's ideals of freedom and opportunity and its desire to welcome the oppressed of other countries. Over time, however, the government has tempered this humanitarian goal with controls and restrictions on who can gain asylum, including statutory criteria that include "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."' The definition of "membership in a particular social group," adopted from the 1951 Geneva Convention relating to the Status of Refugees, is the least clearly defined category in the statute; no Congressional guidance exists and courts have been somewhat inconsistent in their application of criteria to define this category.

In 2001, a successful claim in Chicago garnered attention by expanding the definition of social group to include the mentally disabled. The case involved an autistic boy whose mother successfully applied for asylum on his behalf. Umair Choudhry, who had been institutionalized in Pakistan for autism, did not communicate with others and exhibited such behavior as slamming his head against walls.' Pakistanis generally view children with autism as cursed by Allah and subject them to dangerous mystical treatments, as in Umair's case, such as forcing them to drink dirty water? The Immigration Court in Chicago that heard the case granted the asylum application based on the boy's well-founded fear of persecution on account of mental disability." Advocates for mental disability hailed it as an expansion of the social group category; however, INS officials and commentators disagreed on whether the definition had actually been expanded.' Although immigration courts may be hesitant to expand the social group category in this way, the legal history of the mentally disabled in the United States provides compelling evidence that the group does warrant protection under asylum law.

The history of the legal treatment of the mentally disabled in the United States reflects a change in consciousness about the mentally disabled. The law today identifies them as a group that has been subject to discrimination deserving of legal protections. Legal protections for the mentally disabled advanced in close parallel to the civil rights movement, and in making a case for reform, mental disability advocates succeeded in comparing the injustice of mental disability discrimination to the country's experience with racial discrimination.6 Significant reforms in mental disability law took place in the United States from the 1960s to the 1980s,7 reflecting the legal system's understanding that the mentally disabled faced discrimination and deserved legal protection. Although individuals with mental disabilities in the United States now generally live under a system that protects their fights and their freedom, the same is not true in other parts of the world This Note examines this evolution in the legal status of the mentally disabled and argues that the legal recognition of the mentally disabled as a vulnerable group with a history of discrimination and abuse supports the eligibility of the mentally disabled as a group entitled to protection under asylum law provisions. Specifically, recent asylum decisions suggest an expansion to the "social group" provision that would include the mentally disabled as a social group for asylum purposes.

The argument to include the disabled within the social group provision has been made based on concepts of international law.9 However, this Note focuses on the evolving legal treatment of the mentally disabled, particularly the mentally ill, and the U.S. recognition of the human rights of the mentally disabled in other areas of the law as a basis for the inclusion of this group under the social group provision of asylum law. This note argues that these rights apply to the broader category of the mentally disabled even though a majority of the changes addressed in this Note focus on the mentally ill. Part I of this Note will examine the history of the mentally disabled and the development of their legal rights in the United States. Part II will examine the statute and its requirements for granting of asylum as well as the recent case law that has interpreted and expanded the definition of "social group" to recognize a broader array of groups, such as individuals facing persecution based on sexual orientation and women facing genital mutilation. Part III will provide some examples of the persecution of mentally disabled individuals in other countries, including documentation of institutional abuses and cases where asylum was sought on this basis. This Note concludes that the history of legal protection for the mentally ill and the recent expansion of the social group category in asylum law provide a basis for allowing the mentally disabled to obtain asylum in the United States based on their membership in a particular social group.

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