Representing Asylum Seekers with Disabilities: Relevant Law
This fact sheet is designed for attorneys and accredited representatives who represent disabled* asylum seekers before the immigration court and asylum office. It provides information about the application of federal disability law in immigration cases and procedures to request accommodations for clients with disabilities. The information provided does not, and is not intended to, constitute legal advice; instead, it is offered for general informational purposes only. Nor is it meant to provide a comprehensive overview of every scenario. For any particular case, attorneys should perform their own due diligence and consult the relevant law before offering legal advice.
Federal law prohibits discrimination based on disability in immigration proceedings and requires the government to provide reasonable accommodations to enable asylum seekers and other immigrants an equal opportunity to fully participate in, and enjoy the benefits of, their proceedings. Attorneys should be familiar with these requirements to help ensure that their clients’ rights are protected.
Does federal disability law cover asylum seekers in the United States?
Yes. Federal disability law protects any person present in the United States, regardless of immigration status, including people seeking asylum. It applies at all stages of immigration proceedings.
The Rehabilitation Act is federal legislation passed in 1973 aimed at remedying disability discrimination. Section 504 of the Rehabilitation Act prohibits discrimination because of a person’s disability in programs or activities conducted by federal agencies.
Adjudication of asylum applications is managed by federal agencies. Depending on which agency has jurisdiction over a case, an asylum application may be adjudicated by either the United States Citizenship and Immigration Services (USCIS) asylum office or the Department of Justice’s Executive Office for Immigration Review (EOIR) immigration court. USCIS is part of the Department of Homeland Security (DHS). Both USCIS and EOIR are federal executive agencies. Asylum adjudication is therefore an activity of federal agencies, so Section 504 applies.
Disability protections also apply in all other DHS programs, including for those people subject to expedited removal who participate in credible fear screenings, and for anyone in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) custody.
Who is covered by federal disability law?
Federal disability law covers people who a) have a physical or mental condition that “substantially limits” one or more major life activities, b) have a history of such a condition, or c) are perceived by others as having such a condition.
Some examples of major life activities are: seeing, hearing, caring for oneself, performing manual tasks, sleeping, walking, learning, concentrating, thinking, communicating, and working.
Post-traumatic stress disorder (PTSD), which affects many asylum seekers, may qualify as a disability under federal law. Courts have recognized PTSD as a disability under the Americans with Disabilities Act (ADA) in other contexts. The ADA and the Rehabilitation Act are generally interpreted coextensively. Federal agencies, including the U.S. Equal Employment Opportunity Commission (EEOC) and the Social Security Administration (SSA), have recognized PTSD as a disability under federal law and provided for reasonable accommodations for people with PTSD and other mental health conditions.
Post-traumatic stress disorder is only one example of a mental health disability that often affects asylum seekers. Many clients have one or more disabilities as defined under federal law. Lawyers should not attempt to diagnose their clients or assume that any client has a disability. Lawyers should work with their clients and other professionals like social workers and psychologists to identify if the client could benefit from accommodations in their proceedings and be covered by the federal definition of disability.
*There is ongoing discussion within the disability community about using person-first language (e.g. person with autism) versus identify-first language (e.g. autistic person). This fact sheet alternates between both approaches. For more perspective from a disabled person, see Jevon Okundaye, Ask a Self-Advocate: The Pros and Cons of Person-First and Identity-First Language, Massachusetts Advocates for Children, (April 23, 2021), https://www.massadvocates.org/news/ask-a-self-advocate-the-pros-and-cons-of-person-first-and-identity-first-language.
