Disabled Boy Eligible for Asylum

In a case spotlighting horrific conditions for disabled children in Russia, a federal appeals court in San Francisco ruled Thursday that the family of a disabled Russian child who was persecuted there for his condition is eligible for political asylum in the U.S.

Immigration law experts said that the ruling was especially significant because it held out the promise of sanctuary not just for Evgueni Tchoukhrova, who was born with cerebral palsy, but for his parents.

They also noted that a federal court’s ability to stop deportation in a case like this would be curtailed if asylum restrictions contained in the so-called Real ID Act, now pending in Congress, are passed.

Writing for a unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals, Judge Stephen Reinhardt noted that the family might well qualify for asylum because simply caring for a disabled child in Russia could be viewed as a political act. But the ruling also asserted a more basic principle: “In providing care for their disabled children, parents are doing something more funda- mental than engaging in politics.” At heart, Reinhardt wrote, these parents “are acting out of love and devotion for their children. Helping care for one’s disabled child is an act basic to one’s humanity.”

Thursday’s decision stemmed from appalling events in the life of Evgueni, who was born to Victoria and Dmitri Tchoukhrova in Vladivostok in 1991. Reinhardt, an appointee of President Carter, chronicled the events in graphic detail:

The child’s disability resulted chiefly from medical negligence during his birth at a Russian state-owned hospital, where staff members first induced labor and then abandoned the mother for an entire night, depriving the fetus of sufficient oxygen.

The next morning, because induced labor had stopped, hospital personnel tried to forcibly extract the child. In the process, they broke his neck.

Instead of giving the newborn child medical care, the hospital staff initially “threw Evgueni into a container holding” remains of aborted babies and medical waste, Reinhardt wrote, telling his mother that “they didn’t see the reason why he needed to live.” The mother fell into unconsciousness.

“Against all odds,” Reinhardt wrote, the child survived and was retrieved from the disposal bin. But hospital personnel would not allow her to see him. After five days, she convinced a nurse to break the rules and let her visit her child in the middle of the night because she “‘wanted desperately to see him and to hold his ... body close to [her] heart,” Reinhardt wrote.

Then, government officials tried to intimidate the couple into abandoning their son to a state-run orphanage. The parents refused, but Evgueni was transferred to an institution for orphaned children with birth defects. The parents had to battle for two months to gain entrance to the facility, where they found children “wrapped in old, wet, dirty linens,” abandoned and crying out in hunger.

The Tchoukhrovas eventually got Evgueni out of the orphanage and into a private clinic. After the child was diagnosed as permanently disabled, he was denied any government medical care.

At the age of 3, Evgueni accompanied his parents to San Diego, where through treatment there he was able to walk for the first time.

However, when the family returned to Russia, government officials still treated him with disdain. He was denied access to public school, despite the fact that his disability was physical and not mental. A Russian government doctor recommended that if his parents refused to institutionalize him, they should isolate him at home and not bring him out in public.

The parents ignored the advice. When he ventured out, Evgueni was subjected to verbal abuse, spat upon and struck by objects thrown by other children. When he was 6, several young men attacked him in a park. He suffered a broken arm and severe head trauma, and required hospitalization, Reinhardt wrote.

Unable to get help from the government, Victoria and Dmitri joined with other parents of disabled children and founded a group that “opposed the prevailing oppressive conditions” of disabled children. They suffered reprisals. Victoria was stoned, and Dmitri was fired from his job, Reinhardt wrote.

The judge emphasized that documentary evidence corroborated testimony Victoria gave to an immigration judge, including a 2000 State Department report that “confirms that Evgueni’s treatment as a child with cerebral palsy reflects the standard practice. Russia institutionalizes its orphans, more than 90% of whom are so-called social orphans -- children who have at least one living parent but who, like Evgueni, are so classified by the state because they have been deemed undesirable in some respect.”

Reinhardt noted that the State Department cited a report that chronicled the “shocking levels of cruelty and neglect” in the state institutions where children with disabilities are “warehoused.”

Five years ago, the family returned to the U.S., where Victoria filed the principal application for political asylum, listing Dmitri and Evgueni as also seeking asylum. An immigration judge found that the family’s testimony was credible but ruled that the suffering did not rise to the level of persecution, and so denied the asylum request. The Bureau of Immigration Appeals upheld that decision.

On Thursday, the 9th Circuit reversed that ruling. Reinhardt, joined by judges A. Wallace Tashima and Kim McLane Wardlaw, ordered officials not to deport the family, finding it eligible for asylum.

The 9th Circuit sent the case back to Bureau of Immigration Appeals for further action consistent with its opinion.

The appeals court made several key legal findings. It held that disabled children and the parents who care for them constitute “a particular social group,” a critical issue in determining asylum eligibility. A “particular social group” consists of individuals united by voluntary association or an innate characteristic so fundamental to their identities or consciences that they cannot or should not be required to change, according to prior rulings.

The court also ruled that Russian parents who care for their disabled children are properly considered a particular social group, and that “taken as a whole, the harm to which Evgueni was subjected unquestionably rose to the level of persecution.”

The Justice Department had no immediate comment.