The state of disability-based asylum claims under current (and reinterpreted) law: assessing viability through disability studies frameworks

• Author: Lauren Hodges
• Position: J.D. Candidate, Georgetown University Law Center, 2023
• Pages: 291-319

NOTES

THE STATE OF DISABILITY-BASED ASYLUM

CLAIMS UNDER CURRENT (AND

REINTERPRETED) LAW: ASSESSING VIABILITY

THROUGH DISABILITY STUDIES FRAMEWORKS

LAUREN HODGES*

ABSTRACT

Throughout history, societies all over the world—including the United States

—have viewed persons with disabilities a group, and often, subjected that group

to discrimination, marginalization, and outright violence. Disabled individuals

may find protection from these injustices in the United States, and in some cases,

existing U.S. asylum law can offer that protection. At the same time, though, fit-

ting a disability-based claim into the strict requirements of U.S. asylum law risks

further perpetuating harmful ideas about disability and may fail to fully capture

disabled individuals’ lived experiences and protection needs. The emerging field

of disability studies disrupts the conceptions of disability that often inform the

mistreatment of disabled persons. In analyzing asylum law through disability

studies frameworks, this Note both demonstrates the viability of disability-based

claims and suggests modest expansions and reinterpretations of existing law

that can more effectively offer needed protection without further marginalizing

or stereotyping persons with disabilities.

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 292

* J.D. Candidate, Georgetown University Law Center, 2023. Many thanks to Professor Patrick J.

Glen for his guidance on this Note, and to Sarah Selim Milad and Katie Fourmy for providing resources

and learning opportunities that shaped this Note and showed me the power of these ideas to change lives.

© 2023, Lauren Hodges.

291

II. HISTORY AND BACKGROUND OF DISABILITY AND ASYLUM LAW . . . . . 293

A. Framing Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

B. Disability in U.S. and International Law. . . . . . . . . . . . . . 298

C. Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

III. EVALUATING DISABILITY-BASED ASYLUM CLAIMS . . . . . . . . . . . . . 301

A. Past Persecution and Well-Founded Fear of Future

Persecution .................................. 302

1. Defining Persecution . . . . . . . . . . . . . . . . . . . . . . . . 303

2. Analyzing Persecution by Non-Governmental and

Private Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

3. Nexus: Persecution “On Account of” Disability. . . . . 306

4. Expanding the Scope of Persecution to Extend

Protection to Persons with Disabilities . . . . . . . . . . . . 307

B. Disability-Based Particular Social Groups . . . . . . . . . . . . 309

1. Immutability .............................. 312

2. Particularity .............................. 313

3. Social Distinction .......................... 315

4. Physical Disabilities and Particular Social Groups. . . 317

C. Humanitarian Asylum for Persons with Disabilities. . . . . 318

IV. CONCLUSION: SHOULD DISABILITY BE ADDED AS A PROTECTED

GROUND?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

I. INTRODUCTION

Ms. F. was in the United States on a temporary visa when she suffered a

devastating health crisis.

1

Suddenly, Ms. F. had significant physical disabil-

ities, and as a result, feared returning to her home country. Ms. F. recalled the

way that disabled people were treated in her community back home. They

were isolated by widespread inaccessibility of buildings and transit, cut off

from economic opportunity due to employment discrimination, and viewed

as targets for violent crime. Ms. F. feared that, as a visibly disabled person in

her home country, she would have no way to make a living and would con-

stantly be at risk of violent victimization. She feared she would essentially be

cut off from the world due to her reliance on accessible infrastructure.

1. Ms. F’s story is adapted from an asylum case I worked on as a legal intern at a Washington, D.C.-area

nonprofit, with some details modified to protect confidentiality. An immigration judge granted Ms. F. asylum

in 2022.

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