Using Disability Justice to Reimagine Our Immigration System

Millions of people that interact with the U.S. immigration system identify as disabled. According to the American Community Survey, 6 percent of immigrant adults have one or more disabilities. This statistic, however, is likely underinclusive.

And yet, despite the prevalence of disabled immigrants, the design of the immigration system does not account for their lived experiences.

In their recent article, Nermeen Arastu of CUNY Law School and Qudsiya Naqui of the U.S. Department of Justice’s Office for Access to Justice discuss how ableism—the system of evaluating minds and bodies based on socially constructed norms—is infused throughout multiple points of the immigration system. Arastu and Naqui then propose reforms to make the immigration system work for everyone.

Ableism, according to Arastu and Naqui, is not merely “discrimination of and social prejudice against people with disabilities.” Instead, they adopt the more expansive view of ableism as a “system of assigning values to people’s bodies and minds based on societally constructed ideas.” Under this broader definition, anyone could be impacted by ableism—even if they are not disabled—if they “stray from perceived ideas of normality and productivity.”

Arastu and Naqui argue that, although ableism has been examined in a variety of contexts, ableism in the immigration system has been “grossly unacknowledged and understudied until now.”

According to Arastu and Naqui, ableism has formed the “scaffolding” of the immigration system since its inception. In 1882, Congress first codified the exclusion of disabled immigrants by declaring that any “lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge” was inadmissible to the United States.

Nearly 150 years later, the modern immigration system spans all three branches of the government. Six federal agencies—the U.S. Department of Labor, Department of Health and Human Services, Department of Education, Department of Homeland Security, Department of State, and Department of Justice—each regulate aspects of the immigration system, such as admission, deportation, and public benefits allocation.

Despite this regulatory transformation, Arastu and Naqui contend that the immigration system retains its ableist scaffolding. They identify three themes in how ableism continues to affect the immigration process.

First, Arastu and Naqui argue that the immigration system “constructs disabled immigrants as unworthy burdens on American society.”

For example, when seeking immigration status from the U.S. Citizenship and Immigration Services, applicants are often evaluated based on their physical and mental abilities, they argue. According to Arastu and Naqui, this emphasis on economic productivity manifests in the creation of preferred immigrant admissions categories. For example, the EB-1 visa rewards “those with extraordinary abilities” with “streamlined application procedures.”

Beyond the admissions process, misconceptions of disabled immigrants also permeates removal proceedings, according to Arastu and Naqui. As they explain, the Department of Homeland Security (DHS) determines “how, who, and when to prosecute alleged immigration violations.” As a result of this broad prosecutorial discretion, DHS agents may be influenced by “binary perceptions of disabled immigrants as either threats or charity cases.”

Second, Arastu and Naqui maintain that the immigration system often places the burden on individual immigrants to “prove their disability.”

Disabled immigrants are often expected to provide lengthy medical documents and detailed expert reports to secure basic accommodations to buildings or systems. Without these reasonable accommodations, Arastu and Naqui point out, disabled immigrants may not be able to participate in key moments of their immigration proceedings.

Arastu and Naqui also question whether new technologies operate as “ableist initiatives.” They point to the Biden Administration’s introduction of the CBP One phone app—which requires immigrants to make an appointment through the app before presenting at a checkpoint on the southern border. Arastu and Naqui critique the app for requiring access to a charged and working phone with internet connection and offering limited languages options.

Lastly, Arastu and Naqui contend that the various processes in the immigration system are not designed with the needs of disabled immigrants in mind.

One reason the disabled experience is “sidelined,” they maintain, is the lack of data on disabled immigrants. According to Arastu and Naqui, “disabled immigrants are not viewed as a unique demographic category.” As a result of the patchwork data, they conclude, the total number of disabled immigrants is unknown.

In addition, Arastu and Naqui highlight that the immigration system also fails to consider the experiences of the caretakers of disabled immigrants. These “large villages of care” are vital to the mobility and survival of their disabled loved one.

Given the challenges of navigating the immigration system, scholars, activists, and practitioners have proposed a range of solutions. Some advocates push for increased access to free counsel or demand expanded pathways to lawful status. Others call for downsizing or abolishing the government’s deportation infrastructure.

According to Arastu and Naqui, however, these efforts to reform or abolish the immigration system fall short by failing to account for ableism. Instead, Arastu and Naqui apply principles of disability justice to reimagine the immigration system.

Disability justice describes “a social movement dedicated to the liberation of disabled people.” Coined by disabled activists over the last two decades, disability justice strives to not only protect civil rights, but also build political power and achieve social and economic freedom.

Deploying this disability justice framework, Arastu and Naqui offer recommendations to expand on existing efforts to achieve change.

For example, when developing new technologies, they recommend that the design of programs should be generally accessible, while also accommodating for individual needs. In addition, Arastu and Naqui suggest that policymakers should engage with disabled individuals and their caretakers to understand better their experiences—such as listening sessions or advisory committees.

By exploring the intersection between immigration and disability, the Arastu and Naqui aim to reimagine the “migration for disabled people, and, in turn, all bodies that cross borders.”