Does my son's disability put him into a recognized social group for asylum purposes?

Disability can be a social group for asylum purposes, with the right evidence of mistreatment of this group in the applicant's country.

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Question

My 26-year-old son is a citizen of Albania and has Down Syndrome, a chromosomal condition that has caused him mental incapacity. He fears persecution by the Albanian government on account of his disability. I was granted asylum in the U.S. in 2003 and my son entered the U.S. in 2004 on humanitarian parole. Can he obtain asylum in the United States?

Answer

An asylum application must be filed within one year of the applicant’s most recent entry into the United States, unless the applicant can demonstrate that extraordinary circumstances should excuse the late filing, as described in Nolo's article, "Can I Still Apply for Asylum After the One-Year Filing Deadline?". Your son is likely to be excepted from the one-year filing deadline if he has been diagnosed with a mental incapacity.

To be recognized as a social group for asylum purposes, your son must, for starters, have a characteristic that is "immutable." Since his disability is a trait your son cannot change, it can easily be fashioned into a social group such as “persons with disabilities.”

Next, you will need to prove to the Immigration Judge or Asylum Officer reviewing your son's case that the Albanian government harms or routinely discriminates and harasses people in this social group. To do this, look at the State Department Reports on Human Rights Practices for Albania as well as other reports or statistics from organizations such as the Disability Awareness in Action network. Also see Nolo's article, "Preparing Persuasive Documents for Your Asylum Application."

Consider consulting with an experienced immigration attorney to help you with the various parts of this claim.

by: , J.D., LL.M.

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