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).
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, here 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.
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.
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."
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.
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."
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.
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.
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.