Fifth Circuit Court of Appeals
347 Fed. Appx. 93
February 18, 2008
Amicus Curie Brief in Support of Petitioners
The Burton Blatt Institute partnered in the research and drafting of an Amicus Brief, which was filed in the Fifth Circuit Court of Appeals on February 18, 2008. Amicus briefs are prepared by interested third parties to provide additional support to the court about a party’s contention. This Amicus Brief was filed on behalf of The Arc of the United States, The National Disability Rights Network, Advocacy, Inc. (Austin, TX), The Advocacy Center (Berkeley, CA), The Mississippi Protection & Advocacy System, Inc., The Burton Blatt Institute at Syracuse University, and The Disability Law Clinic at the Indiana University School of Law (Bloomington).
Facts of the Case
Alexey and Olesya Korneenkov are Russian natives (husband and wife), who entered the United States in September of 2006 and subsequently applied for asylum in the United States. Both have had intellectual disabilities since birth. Deposition statements demonstrate that Alexey and Olesya fear a return to Russia — described as a life filled with discrimination and persecution. Olesya was discriminated against because of her disability since childhood, subsequently forcing her to be schooled from home. She fears going outside, because of the potential for physical and verbal abuse. Alexey was institutionalized at a Russian “Internat” — a school for students labeled “uneducable” by the state. There, he experienced frequent abuse from peers and superiors. Alexey also was unable to maintain employment in Russia because of his disability and stigmatizing attitudes toward him.
Issues of the Case
- Whether the court should reverse the decision by the Board of Immigration Appeals and provide the Korneenkovs with asylum.
In their appeal, the Korneenkovs must establish that they experienced past persecution or have a well-founded fear of future persecution if they return to Russia, based upon their status as members of a protected social group of Russians with intellectual disabilities. The Amicus Brief focused solely on the issue of whether the court should recognize the existence of a protected social group of Russians with intellectual disabilities.
Rule of the Law
To be granted asylum, an applicant must meet the legal definition of a “refugee,” that is, a person physically outside of their country of nationality, and who is unable or unwilling to return to their country because of persecution or a well-founded fear of persecution on account of either their race, nationality, religion, political opinion, or membership in a particular social group. A “particular social group” has been defined as a group of persons that share an immutable characteristic (i.e., a characteristic that the individual cannot change or should not be required to change because it is fundamental to their identity). The courts have further defined social groups as those with a “shared common experience.”
Arguments of the Amicus Curie Brief
1. The Amicus Curie Brief argues that Alexey and Olesya Korneenkov are members of a protected social group of Russians with intellectual disabilities.
Individuals with intellectual disabilities, including the Korneenkovs, have a shared common experience of unequal treatment, abuse, neglect, exclusion, denial of benefits and services, and political powerlessness in the United States, in Russia, and around the world. The U.S. Supreme Court has supported the notion that persons with disabilities share immutable characteristics. Congress has asserted that the history of mistreatment of persons with disabilities is “based on characteristics that are beyond the control of such individuals . . .” The Ninth Circuit specifically has held that children with disabilities and their family care givers are members of a particular social group for purposes of U.S. asylum law. The evidence presented establishes that the Korneenkovs have intellectual impairments and are proper members of this social group.
2. In the United States
In the United States, mistreatment of persons with disabilities was the purpose behind the enactment of the Americans with Disabilities Act. Congress specifically found that “individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to history of purposeful unequal treatment, and relegated to a position of political powerlessness in society.”
3. In the former Soviet Union and present Russian Federation
Persons with disabilities share a common experience both in the former Soviet Union and in the Russian Federation. In the Soviet Union, people with intellectual disabilities were subject to outright exclusion and segregation, purposeful relegation to lesser opportunities and services, and were politically powerless to change their circumstances. Such experiences continue in the Russian Federation. Russian persons with disabilities experience stigmatization and segregation based on inaccurate medical and societal labeling. Many of these persons are institutionalized after being labeled “uneducable” as children. Furthermore, employment for people with intellectual disabilities is limited as they are relegated to lesser or no educational and vocational training.
4. In the Global Community
There is analogous evidence of mistreatment of individuals with disabilities around the world. Most notably, the United Nations adopted the Convention of the Rights of Persons with Disabilities, which recognizes the pervasive discrimination toward and exclusion of people with disabilities throughout the international community.
Policy & Practice
In recent years, courts have clarified the categories of protected social groups for purposes of asylum. These have included children with disabilities and their family care givers, homosexuals, and women who faced genital mutilation, among others. Similar decisions have taken place in the First, Second, Third, Seventh and Ninth circuits. However, the reasoning by these courts is only binding on the immigration court in their prospective region. Thus, it is unclear whether there is sufficient persuasive authority to expand the definition of protected social group to persons with intellectual disabilities in the Fifth Circuit.
Moreover, the decision by the Immigration Board primarily turned on whether the Korneenkovs could demonstrate that the level of past or potential future persecution in Russia rose above discrimination or “mere denigration, harassment, and threats.” The Board reasoned that the Korneenkov’s experiences did not rise to this level of severity. As the standard for persecution is high in the Fifth Circuit, the outcome for this case is far from certain.
In 2009, the court affirmed the decision of the Board of Immigration Appeals’ (BIA) dismissal of petitioner’s appeal and the denial of their motion for remand.
These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.