The Ninth Circuit has determined that the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. “Acevedo was diagnosed with ‘intellectual disability’ as that term is used within the psychological profession. The particular social group that he proposed did not encompass all mental illnesses and was not based on a lay description but was limited to individuals with a specific diagnosis of ‘intellectual disability,’ as defined by the DSM-5. Intellectual disability, formerly known as ‘mental retardation,’ is a commonly recognized mental illness for which the DSM-5 details a well-established medical definition providing several universal, specific, immutable characteristics. These characteristics provide a clear benchmark from which professional psychologists can determine who falls within the group..” “The fact that the average layperson may not be able to accurately identify an individual with an Intellectual Disability does not make the clinical definition subjective or amorphous. Similarly, the possibility that individuals within the group may have sub-diagnoses or concurrent diagnoses does not make the group overbroad.”
“First, the BIA committed a legal error in holding that the proposed group did not meet the social distinction requirement because the record does ‘not support the determination that El Salvadoran society in general perceives [the proposed group] to be a meaningful social unit, distinct from the larger population of mentally ill individuals.’ The social distinction inquiry asks whether the ‘society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group,’ not whether the group is sufficiently distinguishable from other, similarly persecuted groups, or whether the individual is a part of one group to the exclusion of other groups. The possibility that individuals with intellectual disabilities are subsumed in a larger group of persecuted individuals with mental illnesses does not control the social distinction analysis, because the question is whether individuals with intellectual disabilities are singled out for greater persecution than the general population. Second, the BIA erred in holding that ‘the fact that individuals with certain illnesses or disabilities may face discrimination or harassment if exhibiting outward symptoms or behavioral manifestations of those conditions does not establish that the respondent’s particular social group is socially distinct.’ That conclusion seems inconsistent on its face. If individuals are treated badly because they manifest a certain condition, that treatment by itself suggests that the group of people with that condition is viewed as socially distinct, because they have been singled out for mistreatment. We have repeatedly recognized that ‘evidence such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.’”
The full text of Acevedo Granados v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/19-72381.pdf
