The Immigration System is a Legal Obstacle Course for the Disabled
Jacqueline Hillman | June 2021
(Left to right) Immigrants carrying luggage at Ellis Island, a detained illegal immigrant sits in the back of a US Border Patrol vehicle near Eagle Pass, TX (2019)
hildren separated from their parents, rampant illness, the herding of thousands of detained Mexican immigrants like cattle into conditions festering with filth—the Trump administration’s imposition of these conditions in our country’s detainment camps on the border have sparked outrage across the nation. Horrific accounts of life in these camps harkens back to historic instances of realized xenophobia— the fear or hatred of those who appear strange to us.
Xenophobia, in any semblance is an insidious form of unwarranted prejudice usually against an extremely vulnerable population. While conditions at detainee camps likely represent overt forms of xenophobia, there is a more covert form of xenophobia that seldom makes headlines: discrimination against disabled immigrants.
Historical Underpinnings: Ellis Island
In his work Disabled Upon Arrival, Jay Dolmage makes a striking claim: “Immigration has never been about immigration.” Dolmage argues instead that the United States’ exclusionary immigration practices are manifestations of subjugation, specifically the grouping of immigrants into categories of ability and race.
Dolmage uses archival data to illustrate a picture of Ellis Island in the late 1800s, reconstructing a vivid landscape of its corridors bustling with immigrants through his focus on the rhetoric found in historic immigration documents. In order to enter the US legally, immigrants were subjected to an “assembly line”-style medical examination, wherein immigration officers hunted for any appearance of disability. Part of this examination included “checking” for potential physical disabilities by forcing immigrants to carry baggage to observe any challenges in motor skills, along with stamping cards to watch for vision defects as immigrants examined their respective cards. The most troubling aspect of these practices was that they likely appeared innocuous to the millions of immigrants passing through Ellis Island, with the key tests for disability appearing as harmless components of a regulated process of entry.
If an immigrant failed to pass one of these invisible tests, they were marked for further mental and physical examination. This process, in its totality, accomplished several goals: promoting heightened paranoia among fellow immigrants, inciting fear of rejection to those who were marked, and reflecting an attitude of exclusion that embodied the principles of the “ideal immigrant American.”
Gaps in Modern Disability Immigration Law
Surely these kinds of practices pertaining to disability do not continue to permeate modern immigration policies, right? Unfortunately, one key similarity between the exclusionary conventions of Ellis Island and modern obstacles to immigration are that they are both discreet.
Generally speaking, US immigration laws regarding the disabled appear quite judicious. The governing law for immigration of any kind is the Immigration and Nationality Act (INA), which was enacted in 1965. §221(d) of the INA requires the submission of a physical and mental examination prior to issuance of a visa.
Unlike the medical examinations of Ellis Island, §212(a) of the INA states that the only circumstances in which an immigrant can be denied entry based on a physical or mental disability is if they are determined “to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others” or “to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior.”
These restrictions are far more reasonable than the overtly discriminatory practices of Ellis Island, which threatened disability on the mere basis of presence rather than secondary threats posed to oneself or others. Furthermore, the INA actually protects immigrants deemed to have “mental retardation,” as they cannot be excluded on these grounds alone.
Despite the reasonable appearance of American disability immigration law, there is still an immense lapse in justice that poses the threat of rejection to the disabled: the appeals process. For disabled immigrants, this process is stacked against a fair outcome. Original determinations of entry are based upon a multifaceted review by medical professionals and a series of affidavits from family members, all reviewed by a judicial authority, namely an immigration judge. Yet under 8 U.S. Code § 1222, if an applicant is denied on medical grounds, there is no possibility of appeal through the judicial system. Instead, the system only allows for appeal to a medical board, thus restricting claims to a rigorous medical set of constraints.
Such a narrow course of review purely under inflexible medical definitions renders it significantly more difficult for appeals to take into account the totality of the circumstances of a given immigrant’s request for a visa. A more humanitarian, holistic system of appeals should be implemented that takes into account more than medical qualifications.
In addition to this specific miscarriage of justice, the clause of the INA deeming “public charges” excludable from visa qualification reveals much more problematic grounds for reform. A “public charge” can broadly be defined as a recipient of a form of social benefit such as social security, poverty nets, or other forms of governmental financial assistance. Some factors that go into the determination of a disabled immigrant qualifying as a public charge are “age, health, family status, education level, knowledge of English, assets, resources, and other skills.”
These factors may appear to be holistic, considering the purported “totality of circumstances” contributing to the future of said immigrant as a legal U.S. resident. What these factors fail to consider is the fact that they inherently pose a bias against the notion of disability itself; those with a disability are more likely to require aid for participation in society. There are a plethora of programs established for this very purpose, yet these are not readily available to potential immigrants. Instead, immigrants face the harsh reality that our government views a supposed “lack of contribution to society” as a reason not to offer admission to our country.
An Uneven Playing Field
Essentially, this precedent means that we hold disabled immigrants to a higher expectation than US-born disabled individuals. We will exclude disabled immigrants because they do not fit society’s rigid definitions of success: labor contribution and financial independence.
In addition, immigrants do not receive the protections of the Americans with Disabilities Act (ADA), which was established to precisely address this issue of inequity and offer the disabled a degree of relief in attaining the same opportunities and resources as the rest of society. This problematic situation is especially pertinent to asylum seekers who may have incurred physical and/or mental disabilities from the oppressive circumstances of the country from which they are fleeing. Upon arrival in the US, these individuals are set up to fail.
White & Associates, a Los Angeles-based law firm, offers several suggestions for “How Not to Fall Victim to a 212(a)(4)(A) Finding and How to Overcome it,” including meticulously calculated plans for an immigrant presenting oneself in a “positive light” during their visa interview and carefully written affidavits and sponsorship documents. These strategies should not have to be employed in the first place, and disabled individuals should not have to modify their behavior in order to appear “able” enough to be a US resident.
A Foreign Case Study: Canada
Unlike the frequent criticisms of US immigration practices, Canada’s immigration policies are nearly universally praised as progressive, inclusive, and comprehensive.
But a closer look at these policies reveals nearly identical, if not worse, grounds for exclusion of disabled immigrants based on the fear that they "might reasonably be expected to cause excessive demands on health or social services.” Excessive demand, however, is not clearly defined. Additionally, the existence of medical issues results in an extremely high chance of exclusion of the disabled, as Canada’s healthcare system is publicly funded.
According to The Washington Post, high-profile immigrants that overwhelmingly are able to support themselves financially still face denial, such as Gavin Hilewitz, the son of South African multimillionaire David Hilewitz, who was denied immigration on the grounds of causing excessive demands due to his developmental disability. This instance, among the many others that do not possess the same status to warrant media attention, reveal an overwhelming bias against the disabled, rooted in archaic ideas of citizenship involving the ability to work and provide for oneself.
Canadian disability advocate Roy Hanes calls these Canadian practices, analogous to the US’s similar criteria, “outdated” and based on “economic utilitarianism” and “economic productivity,” but in my opinion, these policies far exceed these terms, encroaching on abhorrent instances of ableism.
One of the motifs largely advanced by President Trump was the fear of Mexican immigrants “stealing American jobs,” perceiving immigrants as an economic threat. In essence, the same xenophobic rhetoric is used to uphold such policies discriminating against the disabled: instead of the stealing of jobs, it is the stealing of benefits of which we supposedly must be afraid.
Many of us are greedy, self-centered, and illegitimately fearful of the “other,” causing us to bar the vulnerable disabled from entering our country at the expense of basic decency. The United States is the “land of the free”; emblems of bounty and excess are proudly displayed as symbols of the opportunity that our citizens may access. Yet this continued immigration ableism undermines our democratic ideals, amounting to a rhetoric of restriction instead of inclusion.
Nonetheless, hope might be found in an embrace of a more globalist, rather than nationalist, view of the individual. Considering the already-existing strides in civil rights protections for the disabled, from the 14th Amendment’s Equal Protection Clause to the aforementioned Americans with Disabilities Act, these same principles should be applied to protecting the rights of disabled immigrants. Regardless, the fight for a more level playing field for immigrants, both able and disabled, begins with a cultural commitment to valuing them as humans, rather than mere “aliens” or “public charges.”
Legally and culturally, it is clear that the complete realization of our constitutional ideals of equality and liberty depend on safeguarding the most vulnerable.