Does This Boy Deserve Asylum?

By Nadya Labi/Chicago

Umair Choudhry, 10, steps off a yellow school bus in Chicago wearing a helmet, mittens and a mouth guard. He's dressed for protection--not from the elements or schoolyard bullies but from himself. He has bitten his arms in the past and scarred his scalp by tearing out his hair. In his native Pakistan, his relatives think he is possessed by demons. "They said an evil spirit was making him hurt himself," says his mother Farah Choudhry. In the U.S., his affliction is known as autism.

Ricardo de Santiago-Carrillo, 34, who is confined at an immigration facility in El Centro, Calif., recalls the 1996 attack on his father that landed him there. "I remember seeing my hands covered in blood after I punched him," he says. De Santiago served time for that crime (and a few others that included drug abuse and threatening his family with a knife), and as a consequence may lose his permanent-resident status. After 26 years in the U.S., he is waiting to find out whether he will be sent back to Mexico, roughly 15 miles away. Fiddling with the red jumpsuit that identifies him as a high-risk detainee, he explains that he was off his medication when he assaulted his father, adding, "I hear voices, and it's hard." De Santiago is a paranoid schizophrenic.

A child who hurts himself and a man who hurt others. Together, they are forcing the Immigration and Naturalization Service to re-examine the rights of the mentally disabled. Farah Choudhry is appealing for asylum on her son's behalf, claiming that his autism is so misunderstood that he will be persecuted if he returns to Pakistan. De Santiago is asking not to be deported, contending, through his lawyer, that the abuses at Mexico's mental institutions are tantamount to persecution.

Under the Immigration and Nationality Act, a refugee is entitled to asylum if he or she faces "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The legal standard is essentially the same for refugees like De Santiago seeking permission to stay, or what is officially known as the "withholding of removal." In recent years, the definition of a social group has stretched to encompass gender (women facing genital mutilation in Togo) and sexual orientation (gay men in Mexico). For the first time, the disabled are demanding the same consideration. Says Bill Strassberger, an INS spokesman: "Cases that involve persons seeking asylum directly based upon a handicap seem to be a recent development."

And one long overdue, say disability-rights advocates. "In general, the international community has failed to recognize that the abuses against people with disabilities are pervasive and constitute international human-rights violations," says Eric Rosenthal, executive director of Mental Disability Rights International. But the new doorway to America has its critics, who counter that asylum laws were not intended for the disabled. They are worried that interpreting the law in such a manner could lead to a flood of disabled refugees seeking advanced medical treatments in the U.S. under the guise of escaping persecution. "The categories for a social group seem to be limited only by the imagination of immigration lawyers," says Dan Stein, executive director of the Federation for American Immigration Reform, a group that aims to curb immigration. "Our asylum laws cannot account for all the vagaries of human vexation and misfortune."

Should they account for Umair's? With her husband and two sons (the older is Ahsan, 15), Farah Choudhry sought medical treatment for Umair in the U.S. on two previous trips. Last year she left her husband, country and life of financial security in Karachi for the modest two-bedroom apartment in Chicago that she shares with her sons. "I couldn't take it anymore," she says. "My close friends would say, 'The mad boy is coming' and hide their children so that his shadow would not come to their children." To appease her relatives, she dragged Umair to religious sites and forced him to drink "holy water." She fears that as Umair gets older, he will be taken to a pagal khana (mad house) where, she says, he would spend his days in a cage. In sharp contrast, in Chicago her son benefits from classes with a 1:1 student-teacher ratio at New Horizon Center, a private school that receives public funding. Average cost per student: between $20,000 and $35,000.

In the absence of a clear legal precedent on how to treat refugees with mental disabilities, immigration judges are adopting an ad hoc approach. On Sept. 21, a judge in York, Pa., granted the "withholding of removal" to a Chinese paranoid schizophrenic whose circumstances echo De Santiago's. He lost his residency as a result of a felony conviction. The judge found it likely that the 42-year-old man would suffer persecution in China, which advocates sterilization for the mentally ill, and agreed that the man had proved his membership in a "particular social group." A California judge issued a similar ruling in De Santiago's case, but the executive office for immigration review has filed a notice of appeal, writing that the judge "erred in finding that those individuals in Mexico who are 'mentally ill' are members of a particular social group."

"This is a new legal argument that has yet to be tested in the courts," says Arlene Kanter, a professor at Syracuse University College of Law. She adds that De Santiago's case will be the first to make the argument before the board of immigration appeals. Of course, Umair has no understanding of the legal maneuvers that will determine his future. It is a symptom of his illness that he grows profoundly attached to routine. He knows to wait for the bus at 7:40 a.m. and to return home at 3:45 p.m. Some Saturdays, he picks up his lunchbox and backpack, ready to go out the door. Explains Choudhry: "He can't talk, but I know he's asking, 'Why can't I go to school?'"

--With reporting by Dan Cray/El Centro

With reporting by Dan Cray/El Centro