Mental Health Considerations for Asylum

Facts of the Case

Mr. Kholyavskiy, a native of the Soviet Union, was subjected to humiliation and physical abuse as a child because of his religion. When he started school, he was required to identify himself as Jewish every three months. Other children called him “kike.” They urinated on him repeatedly. They pulled down his pants, exposing his genitals, and taunted him for being circumcised. He reported incidents of physical abuse, including a broken arm and a serious dog bite that required a series of forty rabies shots. Mr. Kholyavskiy's family received telephone calls threatening a pogrom. The family found Stars of David scratched into their mailbox.

In 1992, Mr. Kholyavskiy's family was granted refugee status in the United States. He was 15 years old at the time. He suffered severe social anxiety, panic attacks, and depression. Soon after, he began to have trouble with the law, which resulted in commencement of removal proceedings in May 2001. Although Mr. Kholyavskiy had been in mental health treatment for several years, he did not begin to benefit from medication until 2003. He took Paxil and Klonopin, which allowed him some functional recovery. Over the course of the proceedings, Mr. Kholyavskiy required hospitalization after an acute psychotic breakdown.

At his hearing before the IJ in 2005, Mr. Kholyavskiy petitioned for asylum. He presented evidence that he had undergone past persecution and had reason to fear future persecution. His treating psychiatrist testified that Mr. Kholyavskiy would suffer serious harm upon returning to Russia, including inability to obtain his medication, psychotic breakdown because of separation from his family, and an inability to take care of himself.

The IJ found that Mr. Kholyavskiy's prior harassment did not rise to the level of persecution defined in 8 U.S.C. § 1158. The judge ruled that he did not have an objectively reasonable fear of future persecution based on being part of any particular social group. The IJ excluded his mental illness for consideration, reasoning that unlike one's tribal affiliation, which is immutable, mental illness can be treated with medication. The judge argued that the family could mail him medications and arrange for his care in Russia. Mr. Kholyavskiy appealed to the BIA, who after twice reviewing the case affirmed the decision of the IJ. Mr. Kholyavskiy challenged several aspects of the case on appeal.

Ruling

The Seventh Circuit Court of Appeals ruled that the BIA had not applied the correct legal standard in its analysis of Mr. Kholyavskiy's claim of past persecution and claim for humanitarian relief. The court remanded the case to the BIA for review on these issues, but upheld the BIA's determination that his claim of future persecution was not based on substantial evidence.

Reasoning

The Seventh Circuit reviewed statutory rules regarding determination of refugee status for asylum. The immigrant must show past persecution or a well-founded fear of future persecution. Persecution entails punishment or infliction of harm administered because of “race, religion, nationality, group membership, or political opinion.” The harm must rise above mere harassment.

The court disagreed with the IJ's and BIA's dismissal of Mr. Kholyavskiy's evidence of past persecution. They argued that being forced to be naked has been a salient point in other proceedings regarding torture. The court found that the dog bite and subsequent treatment for rabies was a serious physical injury with lasting physical scars. They viewed these incidents in the context of pervasive harassment of his family because of their religion. They concluded the BIA had not considered the “cumulative significance” of these events and had not considered the impact in light of his age. They remanded the issue of persecution for a comprehensive review by the BIA.

The court disagreed in part with the BIA's analysis of Mr. Kholyavskiy's mental illness as it pertained to fear of future persecution. It found evidence in the treating psychiatrist's testimony that Mr. Kholyavskiy's mental health symptoms were only partially treated with medication and that he remained “comfortable but disabled.” As such, his mental illness was an enduring characteristic that could be the basis for being part of a protected social group. The court affirmed, however, that Mr. Kholyavskiy had not presented sufficient evidence that the mentally ill are in fact currently persecuted in Russia. The court considered documents that described a trend toward destigmatization in Russia.

Regarding Mr. Kholyavskiy's concern about future persecution on the basis of his religion, the court affirmed that the available information did not provide a sufficient proof for an objective fear of persecution due to his status as a Jewish person returning from the United States.

The court considered the question of humanitarian asylum. As codified at 8 C.F.R. § 1208, an IJ may grant asylum to an immigrant who has established past persecution and can show he will suffer serious harm if removed to the country of origin. Future persecution need not be proven. The court ruled that, on the basis of his mental illness, Mr. Kholyavskiy would be likely to suffer serious harm upon removal to Russia. The court dismissed the IJ's argument that medications could be mailed to Mr. Kholyavskiy, noting that his psychiatrist could not safely supervise his medications from abroad. The court also pointed to evidence presented by his psychiatrist that without his medications Mr. Kholyavskiy's mental health symptoms would recur and he would be incapable of taking care of himself.

Discussion

In asylum cases, claims of past persecution are scrutinized by IJs who typically require proof of severe physical abuse sanctioned by the government of origin. The ruling in Kholyavskiy v. Mukasey is important because the court of appeals explored the psychological aspects of Mr. Kholyavskiy's prior abuse in its determination of past persecution. The court found that forced nudity constitutes a severe violation of privacy. The court highlighted the age at which these incidents occurred, recognizing that childhood sexual abuse can have long-lasting effects. This ruling has implications for forensic psychiatrists who evaluate immigrants applying for asylum. Careful consideration should be given to past physical, emotional, and sexual abuse and the psychological impact on the individual.

Also interesting in this case was the discussion of whether mental illness meets the definition of a “particular social group” for the determination of refugee status. Prior rulings have found that mental illness has not met the criteria of “a collection of people closely affiliated with each other, who are actuated by some common impulse or interest” (Raffington v. I.N.S., 340 F.3d 720 (8th Cir. 2003), quoting Safaie v. I.N.S., 25 F.3d 636, 640 (8th Cir. 1994)). In Kholyavskiy v. Mukasey, the court considered psychiatric evidence that his mental illness was refractory to treatment and most likely permanent. The permanence of such a mental disability would appear to be a first step in meeting the definition of a social group. Other relevant factors would be visibility and persecution of the group. The analysis did not proceed in this case because the court found that he had not presented sufficient evidence that Russia persecutes the mentally ill. Going forward, important factors for consideration in psychiatric evaluations for asylum include prognosis, outward signs of a disorder, and evidence of persecution in the country of origin.

The consideration of serious harm in determining humanitarian asylum in this case is an important precedent. The Court of Appeals for the Third Circuit has cited Kholyavskiy v. Mukasey in its recent remand of a case in which serious harm upon removal was a consideration (Sheriff v. Attorney General U.S., 587 F.3d 584 (3d Cir. 2009)). The Third Circuit pointed out that Kholyavskiy v. Mukasey is one of the only cases that has discussed what constitutes serious harm under humanitarian asylum law. Factors considered in the case included access to medication, access to mental health treatment, and the impact that these would have on functioning. This case is important to forensic psychiatrists, as it establishes the importance of mental health concerns in asylum proceedings. Forensic evaluations should describe the predicted impact of removal on the mental health of potential deportees.