Can I testify at asylum interview on behalf of my son who has a cognitive disability?

The Asylum Office should allow a parent to speak on behalf of a child who cannot communicate for himself.

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Question

We are from Russia, where my 22-year old son has been persecuted because of his disability (Down Syndrome). He is with me in the U.S., and I am helping him prepare an application for asylum. However, I know that part of the application process involves attending an interview at the Asylum Office -- but my son won’t be able to explain what happened to him. Can I testify for him?

Answer

The Director of the Asylum Office can allow another person to testify on behalf of someone who cannot communicate. The applicant’s condition must be long term, such as a stroke that leaves the person unable to speak, or Down Syndrome. See 6 C.F.R. 15.3(d)(ii).

The job of an asylum officer is to find refugees — that is, the officer’s goal is to hear truthful testimony and determine whether the facts of the case (what the applicant experienced and fears) entitles the applicant to win asylum. When the applicant cannot meaningfully testify, it is in the best interests of the officer to hear from a person who has first hand knowledge of what happened.

Asylum officers are not doctors, and are therefore not allowed to determine whether an applicant is competent to communicate. When you file your son’s asylum application it is important to attach a letter from his doctor or other health professional explaining the diagnosis. The letter should discuss:

  • how long your son has been under care
  • the name of the condition and any medications, and
  • the finding that your son will not be able to communicate meaningfully at any time in the near future.

Also include a cover letter with the application, explaining that your son cannot testify because of his disability. And don’t forget to submit documents explaining how people with disabilities are treated in your country.

When you arrive at the asylum office, explain again to a supervisor that you will need to speak on your son's behalf, and that your application contains a full request to this effect.

If you have firsthand knowledge of what your son experienced or fears, the director can allow you to testify on his behalf. The person testifying cannot be the representative or the interpreter, but you can bring someone else who witnessed events if you, yourself, did not.

Remember that you will have to demonstrate to the officer that your son has suffered or fears persecution on account of one (or more) of five grounds: either his race, religion, membership in a particular social group, or political opinion. In your son's case, the most likely ground would be social group, namely persons with disabilities.

Your son has protected rights in the United States under Section 504 of the federal Rehabilitation Act of 1974, which ensures that people with disabilities are not discriminated against. It’s a good idea to consult with an experienced immigration attorney and to bring the attorney to the interview with you. The attorney can make sure that your son’s rights are properly protected.

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