Not Every Client Can Testify, Mental Competence in Asylum
Blandon Law attorneys, Elizabeth and Kendra Blandon recently attended the national Annual Conference of immigration professionals in Denver. We learned about asylum, increased deportations in court, family immigration law, VAWA, and how to handle denials. One case is important to share.
Can My Family Win Asylum if They Can’t Testify?
Short answer: yes. An asylum case was returned to the immigration judge for refusing to admit that the applicant had mental competency issues. The record showed that Mr. Lemus had “head trauma, severe alcohol abuse, dementia, anxiety, depression, memory disturbance, significant medical prescriptions…forgetfulness and mental problems, inability to work due to disability, some confusing testimony, and inability to understand some questions.”
He feared he would be hospitalized, abused, and tortured in a state asylum if returned to Guatemala. Asylum is granted to persons who can show have a reasonable fear of future harm on account of the membership in a particular social group – including persons with intellectually disabilities.
Does a Person Have to Be Incompetent to Get Asylum?
In a word: no. What matters is how the persons who will do the harm view the person. For example, if someone is beaten by others because they have a cognitive disability (they can’t think as quickly as others), that person can get asylum if the government is not willing to protect them and they can’t move to another part of their homeland. This is so even if the person being harmed doesn’t have a specific diagnosis such as Down’s syndrome.
What Do I Do if a Slow Family Member has a Court Case?
Hire an attorney experienced in these cases. The Immigration Judge must comment on the record if they suspect that the applicant has a problem with mental capacity or a significant mental illness (hallucinations, major depression). If the family member is in Court, the attorney will need documents to prove the mental incapacity and likelihood that they will be harmed in their home country BECAUSE of this mental incapacity. An inadequate health care system is not enough. For asylum, a person has to prove that a person locked in a mental hospital will experience significant harm – violent abuse and torture – caused with a specific intent to harm.
Let our immigration family help yours. Call 954.385.0157 or Click “For Future Clients” to schedule a chat with our asylum immigration experts.
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All team members speak Spanish.
Disclaimer – These entries are based on real life events. Family member names, when used, are real. Client names are changed for privacy.
