Disabled Immigrants: Living on the Edge of Barbwire

Disabled Immigrants: Living on the Edge of Barbwire

Qudsiya Naqui

 

Content notes: ableist and sanist language, eugenics, suicide, medical neglect, suffering, abuse, violence, incarceration

 

I first became interested in the disabled immigrant experience through my work running legal services programs for unaccompanied immigrant children detained at the U.S. border from 2011-2018. My work often made me think of a poem by the great Mexican-American queer disabled writer, Gloria Anzaldua:

“1,950-mile-long open wound

dividing a pueblo, a culture,

running down the length of my body,

staking fence rods in my flesh,

splits me splits me

me raja me raja

this is my home

This is my edge of

Barbwire.”

The children I worked with who had physical, mental, and developmental disabilities faced innumerable obstacles—compounded by language barriers and well-meaning advocates who weren’t always familiar with  disability rights laws. I could never understand how a country that proclaims disability rights as civil rights couldn’t manage to extend the protections of the most groundbreaking disability rights law to disabled immigrant children. It felt like the greatest hypocrisy.

As disability studies scholar, lawyer, and activist Katherine Perez has eloquently pointed out, at its core, the U.S. immigration system remains a project of eugenics that assigns value to bodies based on race and ability—it forces disabled immigrants onto their own edge of barbwire. The Americans with Disabilities Act (ADA) and its predecessor, Section 504 of the Rehabilitation Act of 1973, are powerful civil rights laws that could protect disabled immigrants, but they have largely been an unfunded mandate—federal, state, and local governments are required to comply with the law, but have not been given any money to do so. Without a major overhaul creating a strong ADA compliance mechanism in the immigration system, the only way for disabled immigrants to gain its protections has been through costly litigation.  ADA enforcement needs to be baked into the immigration system—otherwise, we perpetuate a process rooted in eugenics, where ableism and racism rule.

Our immigration laws have always been firmly rooted in ableism. The first major immigration legislation, the Immigration Act of 1882, turned away people identified as, “lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Steeped in the rising capitalism that grew out of the Industrial Revolution, the public charge concept prevented immigrants whose bodies were deemed ill-suited for labor, production, and self-sufficiency from entering the U.S. Indeed, in 1907 the U.S. Commissioner General of Immigration stated in an official report that, “The exclusion from this country of the morally, mentally, and physically deficient is the principal object to be accomplished by the immigration laws.”

This history has continued in the modern-day treatment of immigrants who face a labyrinthine immigration system that is not designed to consider the needs and concerns of disabled people and, at its very core, was built to exclude them. The public charge rule remains on the books—in fact, in 2019, the Trump administration published new regulations vastly expanding the public charge definition, thus excluding immigrants (especially disabled people) who receive any sort of government assistance from obtaining lawful status in this country. Though the Biden administration ended application of this rule on March 15, 2021, the concept of the public charge remains as a criteria for exclusion in our immigration laws. In addition to being targeted as unworthy of seeking permanence in America, disabled immigrants are routinely shut out of participation in the immigration process itself. They are denied accommodations like hearing aids in immigration court proceedings, and women in detention have undergone forced sterilization as recently as 2020. The immigration detention system has also exacerbated, and sometimes caused violence, medical neglect, trauma, and mental health disabilities. Between 2018 and 2020, suicide was the cause of at least a quarter of all deaths in Immigration and Customs Enforcement (ICE) custody. According to Roxana Moussavian, immigration lawyer and Co-Director of Pangea Legal Services in San Francisco, “immigration law today is just as exclusionary, as it was when the U.S. immigration system was initially developed.”

As a result, disabled immigrants and their allies have battled in the courts to achieve small victories, including access to legal representation for people with mental health disabilities in immigration court and reasonable accommodations for disabled people in immigrant detention facilities, but these costly lawsuits have not achieved the comprehensive redesign or abolition of a policy framework that is inherently ableist and xenophobic. There is still a mountain left to climb.

It will take political will and cultural reimagining to unravel our racist and ableist immigration policies. This might start with abolishing the concept of the public charge, and instead focusing on how to provide disabled immigrants with the tools necessary to succeed in the United States—a key imperative of the ADA. It will require making the process of applying for immigration benefits more accommodating , with plain language forms and instructions; accessible application forms; and options to participate in virtual immigration interviews. It will take policy reform predicated on the belief that disabled immigrants, like the disabled Americans for which the ADA was created, are inherently valuable and deserving of the opportunity to participate in the immigration process on equal footing with their nondisabled peers. None of this is possible without financial investment and a meaningful commitment to dismantle systemic ableism that has for centuries defined who is deserving of the label “American.”

And this action is urgent. Disabled immigrants languish in detention facilities without the access to community-based healthcare, medications, and other services they need, and are forced to navigate a court system that does not accommodate them so they can actively participate in their own defense. Federal funding and resources could ensure that accommodations are available at every step in the immigration process—from visa applications, to detention facilities, to the immigration courts. It could ensure that disabled immigrants have access to attorneys and other community-based disability rights advocates to support them in the process. It could establish training for immigration officials—border patrol agents, asylum officers, judges, prosecutors, detention facility staff, and others—engaging with disabled immigrants to ensure they have the knowledge they need to identify and recognize disabled immigrants ensnared in the system and enforce disability rights laws.

On the thirty-first anniversary of the ADA this year, an incredible amount of work remains in the disability community. Our immigration laws continue to perpetuate the project of eugenics, forcing disabled immigrants to live on an edge of barbwire. Changing the attitudes of racism and ableism that perpetuates this is as essential to bringing societal transformation as the law—the law alone cannot solve the problems of our immigration system. But the law is a powerful tool, and the ADA needs to go from an unfunded mandate to a funded priority when it comes to enforcing our immigration laws. In the absence of tangible resources to make real the protections of the ADA, the law is rendered toothless in the moments when it matters most—when life, death, family separation, and liberty are at stake.

 

ABOUT 

Qudsiya Naqui is a blind attorney and disability justice activist based in Washington DC. Her work as a lawyer centers on access to justice—ensuring that all people, especially immigrants and other marginalized groups, are treated fairly in our legal system. She also hosts the podcast, Down to the Struts, about disability, design, and intersectionality. Her work has been featured in Forbes Magazine and NBC Today. For more on immigration and disability, check out Season 2, Episode 1 of Down to the Struts, “Law, Policy, and Disabled Immigrants,” featuring guests Katherine Perez and Roxana Moussavian.  

Twitter: @DownToTheStruts

 

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