Mental Disability and Subjective Fear in the United States

Witness_impeachmentBy Ian Green
Third year student at the University of Michigan Law School and Editor-in-Chief of

In June 2015, the U.S. Board of Immigration Appeals (BIA) issued a decision in Matter of J-R-R-A-, in which it addressed the application of the U.S. subjective fear doctrine within the context of mentally disabled asylum applicants.[1]  In J-R-R-A-, the applicant was a Honduran citizen whose fear of harm upon return to Honduras was connected to the murder of his brother  15 years prior to the BIA’s decision.[2]

At the applicant’s initial hearing before an immigration judge (IJ), he demonstrated “difficulty meaningfully answering basic questions” and provided “confusing and disjointed” testimony.  At one point he testified at his 2013 hearing that the previous year was  2006, and at other times he laughed inappropriately. The applicant’s attorney notified the Immigration Court (IC) that his client’s ability to testify was hindered by a cognitive disability, but the attorney did not present evidence in support of his assertion.  Noting these concerns, the IJ nevertheless issued an adverse credibility finding on the basis of the applicant’s demeanor and inconsistent testimony, which he characterized as “self-serving,” and stated that cognitive difficulties are “not a license to give incredible testimony.”[3]

Finding that the applicant’s testimony indicated he may have been incompetent to participate at the hearing, the BIA on appeal remanded the case with instructions to assess the applicant’s competence.  The BIA further held that “where a mental health concern may be affecting the reliability of [an] applicant’s testimony…Immigration Judge[s] should, as a safeguard, generally accept that…[an] applicant believes what he has presented, even though his account may not be believable to others or otherwise sufficient to support the claim.”

Although this safeguard would theoretically apply to a broader range of immigration hearings than those in which eligibility for asylum is claimed, the BIA framed the issue in terms of “accepting an asylum applicant’s fear of harm as subjectively genuine where competency issues affect the reliability of the applicant’s testimony.”  Noting that an incompetent applicant could sincerely believe his or her objectively incredible testimony, or that a mentally disabled applicant otherwise meeting the threshold for competence could still present testimony in a manner plagued by the disability, the BIA noted that its new safeguard would “enhance the fairness of…proceedings.”

Like many other parties to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol (Refugee Convention), the United States has adopted a bipartite approach to the well-founded fear element of refugee status, requiring both that an asylum seeker’s fear be subjectively held and objectively well-founded.[4]  Momentarily putting aside the merits of reading a subjective fear requirement into the Refugee Convention’s definition of a refugee, it is important to note that the BIA has indeed likely enhanced the fairness of its system for recognizing refugee status by introducing the safeguard announced in J-R-R-A-.  Yet contrary to the BIA’s assertion, this safeguard does not completely foreclose the possibility that a mentally disabled refugee could be denied protection in the United States on subjective fear grounds, given that whether “a mental health concern may be affecting the reliability of the applicant’s testimony” appears to still be within the equally subjective discretion of an IJ.[5]  However, it provides IJs with a means of getting around subjective fear which would otherwise bar a class of persons from receiving refugee protection solely on the basis of their inability to hold (or at least express to the satisfaction of an IJ) a subjective fear of persecution.

As mental disability itself can serve as the basis of a particular protected social group, it can hardly be said that the drafters of the Refugee Convention intended to exclude mentally disabled persons, otherwise meeting the Article 1 definition, simply because their disability affects their capacity to hold or express a subjective fear of persecution.[6]  Therefore, the safeguard under J-R-R-A- can be said, on some level, to be in furtherance of the Convention’s object and purpose, albeit within the context of a Convention Party that has in some of its federal jurisdictions adopted the bipartite approach to well-founded fear.

However, as many Convention Parties have also adopted the bipartite approach to well-founded fear, it is unsurprising that alternate means of reconciling the strict doctrine of subjective fear with the circumstances of mental disability have been employed internationally.[7]  For example, in at least one decision from 2008, 071972350, Australia’s Refugee Review Tribunal failed to address the issue at all, and attributed the acts of a cognitively disabled person to a lack of subjective fear.  In 071972350, the applicant was an Indian citizen who was denied a protection visa, the criteria for which was the Australian government’s satisfaction that it owed protection obligations to an applicant under the Refugee Convention.  The Tribunal reviewed the visa denial, which was based on two trips the applicant took to India, where he claimed he had a fear of persecution due to the way he was treated as a disabled person following an accident that caused his cognitive disability.

Although the full details of the applicant’s disability are unknown because the Tribunal redacted most of his medical history, it appears to have caused him great difficulty with cognitive demands, as well as social and work problems.  Yet, the Tribunal never addressed the possibility that the applicant’s disability may have affected his ability to hold a subjective fear, particularly of the diffuse persecution  alleged in his case.[8]  Although the case is somewhat different from J-R-R-A- in that it involves the interpretation of an action rather than allegedly incredible testimony, 071972350 demonstrates that, under some circumstances, the RRT has applied traditional subjective fear doctrine to cognitively disabled refugee applicants, apparently without considering such application’s consistency with the object and purpose of the Refugee Convention.

On the opposite end of the spectrum, the Federal Court of Canada addressed a similar issue in Yusef v. Canada.  Unlike in J-R-R-A-, the applicant in question did not suffer from a mental disability.  However, the Refugee Division of the Immigration and Refugee Board had, upon hearing the applicant’s case in the first instance, found that, although she faced an objective danger of persecution, her claimed subjective fear was not credible.

Upon review, the Court of Appeal stated that it was “loath to believe that a refugee status claim could be dismissed solely on the ground that as the claimant is a young child or a person suffering from mental disability, he or she was incapable of experiencing fear the reasons for which clearly exist in objective terms.” In fact, the Court of Appeal went so far as to say that “the definition of a refugee is certainly not designed to exclude brave or simply stupid persons in favour of those who are more timid or more intelligent.”  This language would seem to suggest that the court was abandoning subjective fear altogether; however, the court explicitly stated that the refugee definition “has always been interpreted as including a subjective…aspect.”[9]

In light of this seeming contradiction it is important to note that the Yusuf decision limited itself to saying that it was “doubtful” that a person claiming refugee status could be objectively justified in fearing persecution, but denied because the fear does not actually exist.  Although this construction leaves open the “doubtful” possibility that such a situation could exist, it appears the court was signaling that in practical application an applicant’s subjective fear should be assumed where such a fear would be objectively well-founded.  This differs from the J-R-R-A- approach in several ways.

First, the Yusuf approach would seemingly apply to all applicants with objectively well-founded fears of persecution, whereas the U.S. approach appears to carve out exceptions, as in J-R-R-A-, for specific groups of applicants (mentally disabled, children, etc.) who may have trouble actually holding or demonstrating a subjective fear.  Second, Yusuf suggests the fact that all applicants are by definition claiming refugee status is indicative of subjectively held fear where said fear is objectively well-founded.[10]  This appears to be a legal fiction in that it assumes all persons applying for refugee status who are objectively justified in fearing persecution actually have such a fear.  However, the Yusuf Court’s assertion that the refugee definition is “not designed to exclude brave or simply stupid persons in favour of those who are more timid or more intelligent” suggests that its main concern was with fairness.

Conversely, J-R-R-A- does not appear to accord any weight to the act of claiming refugee status in terms of establishing subjective fear.  Instead, J-R-R-A- creates the legal fiction that IJs should generally accept that a certain class of applicants (those whose testimony is affected by cognitive disability) genuinely believe what they say during an asylum hearing.  But, it is highly unlikely that the J-R-R-A- assumption is motivated by any belief that, in general, this category of applicants genuinely believes their own testimonies.  J-R-R-A- provides no argument that cognitively disabled applicants are more likely to believe their own testimony than refugees in general, and logically the opposite could easily be true, depending on the nature of an applicant’s disability.  Instead, the driving factor behind this legal fiction is likely as the BIA suggests: the enhancement of fairness in determining the status of such applicants.

As the logic behind both J-R-R-A- and Yusef boils down to a desire to create a fairer administration of subjective fear doctrine, they differ mainly in their designation of the populations that should benefit from a relaxation of the traditional notion that a refugee must have a subjective fear of persecution.  However, both decisions beg the question to varying degrees, if fairness is the main concern behind softening subjective fear doctrine, why not abandon the subjective fear requirement altogether?

While the U.S. practice of effectively carving out exceptions to the administration of subjective fear doctrine may render determinations fairer for those falling within the exempted groups, it implies that the application of subjective fear doctrine to non-exempted applicants is fair.  Such an assumption is deeply flawed.  First, refugees as individuals coming from varied cultural backgrounds will react differently to similar situations.  Therefore, it is an insurmountable task for a trier of fact to discern whether an applicant does in fact hold a genuine fear of persecution.[11]  Second, to the extent it is even possible for a trier of fact to accurately detect subjective fear, the exemption of groups such as the cognitively disabled seems somewhat arbitrary.  While it may be true that groups such as the cognitively disabled and children are the most obvious categories of refugees who may exhibit difficulty in holding or displaying subjective fear, the same can be said of many if not most other refugees.  Why is there no separate BIA exemption for rape and torture victims, or victims of FGM, each of whom may be competent to give testimony but whose testimony will be affected in non-obvious ways by trauma?

While these categories may fit within the ambit of J-R-R-A-’s application to applicants with mental health concerns, it is easy to see how the doctrine could quickly get unwieldy.  To maintain fairness, there would need to be a proliferation of exempted groups or J-R-R-A-’s “mental health” language would need to be read broadly enough to encompass all applicants who experience difficulties in holding and exhibiting subjective fear in a manner recognizable to triers of fact.  As either would largely exempt the vast majority of refugees with an objective basis to fear persecution, subjective fear would be left with very little doctrinal value.  The same can be said of the Yusuf Court’s assumption of subjective fear where an applicant has an objective basis to fear persecution, which would leave subjective fear theoretically intact while depriving it of any relevance to refugee status.  If subjective fear is doing no doctrinal work, why pay lip service to it and further confuse an already convoluted inquiry?  After all, subjective fear is not a necessary textual inference from the language of the Refugee Convention, and it often operates contrary to the treaty’s object and purpose.[12]

In conclusion, the fact that states have had to resort to awkward and nonsensical legal fictions to avoid the unfair application of “subjective fear” doctrines suggest that the bipartite approach to well-founded fear itself is manifestly unfair in principle, and not in keeping with the object and purpose of the Refugee Convention.  Returning to the facts of J-R-R-A-, it cannot be denied that the application of subjective fear doctrine is rendered fairer to refugees similarly situated to the applicant under the BIA’s newly announced safeguard.  However, abandoning subjective fear as a requirement of the refugee definition altogether would be doctrinally correct and even fairer.  Yet, in light of the U.S. Supreme Court’s ruling in INS v. Cardoza-Fonseca, an across-the-board, express abandonment of U.S. subjective fear doctrine at the national level is unlikely.  If this is the case, and subjective fear is here to stay in at least some federal jurisdictions, a better approach to the problem seen in J-R-R-A- would be to abandon the practice of interpreting credibility as an indicator of subjective fear.

[1] This RefNote was adapted from a student case comment written in satisfaction of the requirements for Professor Hathaway’s course on International Refugee Law at the University of Michigan Law School.

[2] The BIA did not elaborate on the specific fear held by the applicant nor its objective basis.  As such, this analysis, like the BIA’s decision, will focus solely on the applicant’s ability to subjectively fear persecution.

[3] Although it is not clear from the BIA’s written opinion whether the IC explicitly used the term “subjective fear” in its decision, the BIA’s appellate treatment of the issue suggests the IC’s adverse credibility determination had the effect of denying the Applicant’s claim for lack of a “subjectively genuine” fear.

[4] See e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 440 (1987).

[5] Although the BIA has previously adopted a reasonableness standard which would effectively assume subjective fear where objectively justified, there is still a risk of denial on subjective fear grounds, as in J-R-R-A-, where adverse credibility determinations are read to indicate a lack of fear.  See, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) (adopting reasonableness standard).

[6] See, e.g., Decision A99-01121 (In Camera), IRB of Canada Refugee Division (11 Sept. 2000) (recognizing mental disability as a particular social group).

[7] It is important to note that as the issue of mental disability presents a distinct problem for jurisdictions adopting the bipartite approach to well-founded fear, some of the decisions referenced here conflict with the jurisdiction’s overall interpretation of “well-founded” fear.  Although limited in terms of precedent, these decisions are discussed here to demonstrate how a given country that has adopted the bipartite approach might try to mitigate (or not) the severe consequences of the doctrine when applied to refugees with mental disabilities.

[8] The persecution alleged by the applicant was the cumulative effect of negative social treatment by his family and friends as well as limited work and social prospects in India for cognitively disabled persons.

[9] For this and several other reasons, Yusuf is somewhat of an aberration in Canadian case law, but nevertheless demonstrates how a given national court might interpret the Convention with regard to subjective fear and mental disability.  Therefore, I have referred to its holding in this analysis as the Yusuf approach, rather than the Canadian approach.

[10] In light of the Canadian Federal Court’s later decision in Sinora v. Canada holding that claiming status would not be enough to satisfy subjective fear, the Yusuf Court’s emphasis on the act of claiming status should be viewed as demonstrating the indicative rather than dispositive nature of such an act.  See Sinora v. Canada, (1993) 66 FTR 113 (Can. FCA, Jul. 13, 1993), at 114-115; See also James Hathaway, The Law of Refugee Status, p. 181 n. 83.

[11] See James Hathaway, The Law of Refugee Status, p. 95-96.

[12] See James Hathaway, The Law of Refugee Status, p. 105-107.


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