Crossing the Border: How Disability Civil Rights Protections Can Include Disabled Asylum-Seekers
In this article
Authors’ note: The disability community is rapidly evolving to use identity-first language in place of person-first language. This is because it views disability as being a core component of identity, much like race and gender. Some members of the community, such as people with intellectual and developmental disabilities, prefer person-first language. In this report, the terms are used interchangeably.
The ADA at 32: Understanding the Rights of Disabled Asylum-Seekers
Introduction and summary
Disabled people face unique challenges when seeking asylum in the United States, and their needs are often overlooked. From a disabled Honduran man1 facing physical accessibility barriers on his way to the United States, to an undocumented child2 with cerebral palsy detained by U.S. Customs and Border Protection (CBP) after surgery, the denial of disabled people’s rights both before and during the asylum process requires increased attention and action. Asylum-seekers also face major legal challenges when making claims for protection based on their disabilities.3
Thirty-two years ago, the Americans with Disabilities Act of 1990 (ADA) was signed into law. It was subsequently amended in 2008 to state that disabled people—whether their disability is congenital (being born with a disability), acquired (getting a disability later in life), or perceived—should be provided the same rights and opportunities as nondisabled people. Yet there has been little attention paid to how the ADA and other disability civil rights protections can be combined with other areas of law to protect multimarginalized populations such as disabled asylum-seekers.4
The ADA makes it clear that disabled people are a protected class of individuals who face “various forms of discrimination, including outright exclusion” and that the United States’ goals are to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”5 The ADA builds off of an earlier disability nondiscrimination law, Section 504 of the Rehabilitation Act of 1973, which applies to all entities that receive federal funding6 and has been used in class action lawsuits7 filed on behalf of disabled asylum-seekers. While the ADA does not apply to the substantive matters of asylum proceedings—meaning that an asylum-seeker cannot invoke it to justify their claim for status—it may provide additional resources for disabled individuals throughout the asylum process.
This report provides an overview of the impacts of the U.S. asylum system on disabled children and adults; explores legal issues at the intersection of immigration and disability; and offers recommendations for applying existing disability civil rights protections, such as the ADA, to assist disabled asylum-seekers through the process of gaining permanent legal status.
The immigration system is rooted in a history of ableism and eugenics
Disabled noncitizens have faced targeted discrimination since this nation’s founding. Eugenics, racism, and ableism have long played a pivotal role in informing immigration policies.8 Eugenics is the theory that humans can be improved through selective breeding and euthanasia.9 It has influenced leaders across the world, including in the United States, and was—and still is—the basis for many racist, ableist, and xenophobic attitudes and policies.10
Poor, disabled immigrants have historically experienced heightened scrutiny in U.S. immigration law and policy. The Immigration Act of 1891,11 which transferred immigration enforcement to the federal government, founded the Office of the Superintendent of Immigration, renamed the Bureau of Immigration in 1895. The office set about creating specific policies that targeted poor, nonwhite, and disabled immigrants, utilizing eugenic beliefs by requiring physical, medical, and mental intelligence inspections12 that penalized disabled bodies. These policies were implemented as individuals entered the United States through Ellis Island and Angel Island. Howard Knox, the assistant surgeon at the U.S. Public Health Service at Ellis Island, described why the service utilized puzzles to measure intelligence in a 1915 article:13 “The purpose of our mental measuring scale at Ellis Island is the sorting out of those immigrants who may, because of their mental make-up, become a burden to the State or who may produce offspring that will require care in prisons, asylums, or other institutions.”
Eugenics has influenced leaders across the world, including in the United States, and was—and still is—the basis for many racist, ableist, and xenophobic attitudes and policies.
Although this more explicitly exclusionary legislation from the early 1900s has been amended, discriminatory practices continue to negatively affect disabled immigrants. For example, although the scope and definition of “public charge” has evolved since the 1970s,14 noncitizens can still be considered public charges.15 This means that the likelihood that an individual will become (or already is) primarily reliant on public cash benefits or will require funding for long-term institutionalization,16 which is disproportionately true for many disabled people, is factored into determinations of inadmissibility and deportability.17
The public charge rule was expanded under the Trump administration and “effectively prompted immigration officers to equate ‘health’ with ‘lack of disability,’”18 which had a disproportionate impact19 on disabled immigrants of color. This regulation has had the “chilling effect” of discouraging immigrants and their families from accessing critical services.20 Even before former President Donald Trump’s new public charge rule went into effect, 11.4 percent of immigrant families reported avoiding nutrition programs such as the Supplemental Nutritional Assistance Program (SNAP) and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) due to fears around public charge.21
In March 2021, the Biden administration stopped the implementation of the Trump administration’s expansion of the public charge regulation.22 However, there is the possibility that it could be invoked again in the future. Even though public charge is very rarely used as a ground for deportation, its usage could increase if it is expanded again.23
Lack of data on disability and migration status
An estimated 12 million people24 with disabilities were forcibly displaced25 worldwide in 2020 alone. The actual number is likely even higher, but because data collection instruments tend to ignore disabled status or are not accessible to all disabled people,26 there are no inclusive, reliable data about this particularly vulnerable population.
Who is an asylum-seeker?
The right to seek asylum is protected by U.S. law.27 While not every asylum-seeker’s claim for protection will be successful, the law generally permits individuals who have applied for asylum to remain in the United States until their eligibility for protection is determined.
It is important to emphasize that the difference between an asylum-seeker and a refugee is procedural, since the legal standard for protection is the same in U.S. law. Asylum can be granted to individuals who meet the statutory definition of “refugee” but who are already in the United States or seeking admission at a border.28
Asylum can be granted to individuals who meet the statutory definition of “refugee” but who are already in the United States or seeking admission at a border.
By contrast, people who arrive in the United States with the formal legal classification of “refugee” have their claims for U.S. immigration status processed while they are still overseas, often in refugee camps. When they arrive, they are resettled through the Office of Refugee Resettlement.
An asylum-seeker29 is someone who presents themselves at or between a U.S. port of entry, such as a land border, or has entered the United States, and is seeking protection from persecution or other serious human rights violations. The U.N. 1951 Refugee Convention30 and its 1967 Protocol (to which the United States is a party) define a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”31 This definition was adopted into U.S. law32 in 1980 and is the legal standard applicable to refugee and asylum protection claims in this country.
Barriers to accessing asylum
The ability to safely escape violent situations to reach U.S. territory is key to accessing asylum. This presents challenges for adults and children with disabilities who are not physically mobile and may be dependent on caretakers.
Many disabled people cannot access critical assistance available during humanitarian evacuations and are left behind. For example, a recent Disability Rights International report33 examined the conditions of two Ukrainian children’s orphanages after the Russian invasion and found that many disabled children with the greatest support needs were abandoned by major relief agencies. These children were left in increasingly overcrowded, understaffed, and unsafe facilities that led to the deterioration of their physical and mental health,34 while less disabled and nondisabled children from peer institutions were safely evacuated to neighboring countries.
During conflicts, overstretched and under-resourced humanitarian aid groups are often forced to abandon disabled people in chaotic evacuation operations. For example, during the Syrian civil war, nearby fighting trapped 148 mostly disabled and elderly civilians for days in a nursing home with only five caretakers.35 Eleven people died from gunfire or a lack of medication before relief agencies could reach them.36 As the Russian war against Ukraine continues, smaller organizations such as Fight for Right37 are largely alone in their efforts to support disabled people on the ground, including facilitating evacuations38 for people trapped in their homes.
Disabled people who can escape violent situations in their countries of origin and seek asylum face hurdles beyond those facing other refugees in accessing protection.
Moreover, without safe migration pathways, many asylum-seekers endure perilous journeys to reach the United States and face abuse, which can cause them to become disabled. Importantly, disability is a protected status that can be acquired at any time during a person’s life.
A report39 by the Mexican Coalition for the Rights of Persons with Disabilities documented how asylum-seekers transiting through Mexico to reach the U.S. border may become disabled during their journey. Asylum-seekers interviewed for the report experienced direct attacks from not only gangs but also federal police officers. One Honduran man was left paralyzed after being shot in the back by a Mexican federal agent. Others became disabled while trying to embark or disembark “la Bestia”—“the Beast,” a fast-moving freight train that connects Mexico to the United States—or due to road accidents exacerbated by overcrowding. Beyond physical disabilities, migration can also exacerbate or cause new mental disabilities such as post-traumatic stress disorder.40
Many asylum-seekers are forced to take perilous journeys in their search for protection, and those risks are often exacerbated for disabled asylum-seekers. For example, asylum-seekers may rely on the aid of predatory smugglers in order to reach the United States. In 2019, Border Patrol officers rescued41 two physically disabled Honduran men who were thrown into the Rio Grande River by their smugglers.
Disability as the basis for asylum
Asylum-seekers flee persecution stemming from war, violence, or conflict. In addition to being able to seek protection on the grounds of race, religion, nationality, and political opinion, disabled asylum-seekers may seek protection based on persecution stemming from their disability. To do this, they must show that they meet the legal standards for having a “well-founded fear42 of persecution”43 that is connected to their “membership of a particular social group.”44
Understanding the ADA
The ADA provides the foundation to understanding disability within a nondiscrimination civil rights framework. It defines45 an individual with a disability as “a person who has a physical or mental impairment that substantially limits major life activities; has a record of such an impairment; or is regarded as having such an impairment.” This means that both people with “impairments” and people “perceived” as such are considered disabled and are protected by the ADA, even without a formal diagnosis.
The ADA specifically names people with disabilities as a “class of individuals”46 who experience discrimination and thus require civil rights protections. At the same time, the Immigration and Nationality Act (INA) notes that members of a “particular social group”47 can seek asylum in the United States due to persecution in their home countries. Disability itself is not explicitly listed as a protected group in the INA’s definition of a refugee; thus, disability would need to fall under “membership of a particular social group” to provide the basis for an asylum claim.
Characteristics of ‘particular social groups’
In the 1985 decision in Matter of Acosta, the Board of Immigration Appeals (BIA), the appellate body of the U.S immigration court system, explained that what ties particular social groups together are “common immutable characteristics” that are unchangeable and fundamental to an individual’s “identity or conscience.”48 According to the U.S. Citizenship and Immigration Services (USCIS) handbook for refugee and asylum adjudications,49 a valid group must be both socially distinct and particular at the same time.
U.S. courts and immigration judges have begun to consider disability as satisfying the criteria to constitute a “particular social group”50 that can experience torture or inhuman or degrading treatment. In the matter of Ricardo de Santiago-Carillo,51 a man with schizophrenia claimed he would face disability-based persecution if he was deported back to Mexico and placed in an institution.52 With this case, the BIA established for the first time in 2000 that disability—specifically “people with serious mental illness”—can constitute “membership of a particular social group” for the purpose of receiving asylum. However, the BIA has not taken a uniform approach to determining what constitutes a particular social group for disability-based asylum claims. For example, in Raffington v. Immigration and Naturalization Service (INS), the BIA denied a motion to reopen an asylum claim because “mentally ill female Jamaican women” are “too large and diverse a group to qualify.”53 Similarly, in Mendoza-Alvarez v. Holder, the BIA rejected the proposed particular social group of “all insulin-dependent diabetics who suffer from mental illness … because it lacked sufficient particularity.”54 However, in Tchoukhrova v. Gonzales, the BIA and a federal appellate court took a broader approach, and ruled that “Russian disabled children and their parents” constitute a particular social group for the purpose of asylum.55
The ADA and ‘particular social groups’
One unexplored avenue for overcoming this challenge of consistently defining a “particular social group” potentially rests in the ADA’s naming of people with disabilities as a “class of individuals” who experience specific discrimination, thus requiring civil rights protections.
However, as the case law shows, many disabled asylum-seekers have struggled to prove to immigration courts that they belong to a class of individuals—a particular social group—eligible for protection. In these instances, the courts have ruled that the particular social groups claimants identify with are not particular enough and overly broad, even if their membership to that group is precisely the reason for their persecution.
In the absence of a consistent approach to this challenge, a question emerges about why the courts cannot interpret asylum law in the spirit of the broad, protective, and class-based approach of the ADA. If courts took this approach, asylum-seekers would still have to prove their “well-founded fear of persecution” and its connection to their membership in a particular social group, but they would already be recognized as belonging to a protected group that requires protection as a result of specific discrimination.
Even when disabled asylum-seekers can substantiate that they belong to a particular social group due to their disability, they must also prove that the treatment they face amounts to persecution. Despite persecution being central to the definition of a refugee, there is no single definition of persecution in U.S. asylum law.56 Thus, asylum officers, immigration judges, the BIA, and federal courts draw from past decisions, international human rights law, and the United Nations High Commissioner for Refugees (UNHCR) when evaluating whether someone has experienced persecution.57
Each evaluation of whether an asylum-seeker has a well-founded fear of persecution occurs on a case-by-case basis, and the threshold for a harm amounting to persecution is extremely high.58 Current guidance from USCIS states that to meet the standard for persecution, asylum-seekers must prove that the harm they experienced “was inflicted by the government or an entity the government was unable or unwilling to control,” as well as that the “level and type of harm experienced” is sufficiently serious.59
The ADA and persecution
The ADA and U.S. asylum law protect disabled people and asylum-seekers from different levels of harm. Not only do ADA protections safeguard against discrimination, but the courts have ruled that they can also protect people from disability-based harassment.60 Persecution is a much more severe harm than either discrimination or harassment, as articulated by a federal appellate court in Stanojkova v. Holder.61 The court defined discrimination as unequal treatment, and harassment as the targeting of a specific group for adverse treatment. However, for the court, the difference between persecution and these types of harm is that persecution necessarily involves “the use of significant physical force” or the credible threat of it.62
Importantly, for the purposes of receiving asylum, experiences of discrimination and harassment that by themselves do not amount to persecution may qualify as such when considered cumulatively.63
This strict standard to demonstrate persecution explains how a court could recognize that a disabled asylum-seeker faces harm due to their membership in a particular social group on the basis of disability but still deny them protection. For example, in Ricardo de Santiago-Carillo, despite upholding that Santiago-Carillo belonged to a particular social group of people with “serious mental illness,” the BIA did not grant him asylum and ordered his removal. The BIA noted that institutionalization itself did not reach the threshold of persecution required by U.S. asylum law.64 However, abusive practices and treatment within these institutions could amount to persecution, especially given the recognition by the U.N. Committee on the Rights of Persons with Disabilities and others that institutionalization often leads to isolation and higher risk of violence, especially for multimarginalized groups such as women with disabilities.65
Some disability-based abuses clearly rise to the level of persecution and torture, justifying asylum claims.66 Such human rights violations67 could range from forced sterilization to involuntary commitment in institutions, where abusive practices and treatment68 such as forced sterilization and psychosurgery can occur without consent. Some have argued that these practices could even be considered crimes against humanity.69
However, meeting the legal standard in asylum law can be very challenging, even when the evidence appears to support granting disability-based protection claims. For disabled asylum-seekers returned to Mexico without family or community support, Disability Rights International70 found an “immediate risk of detention” in facilities where the death rate is very high. This risk is compounded for disabled children who end up in abusive orphanages. Additionally, according to Human Rights Watch,71 Mexico “is still a virtually inaccessible country” where there are minimal policies for support and services that allow disabled people to live in their communities. Put simply, disabled people in Mexico face unsafe and dangerous environments in institutions and risk abuse on the basis of their disability, which could factor into their asylum claims.
Even if persecution has been documented and substantiated, disabled asylum-seekers must also establish the direct nexus between their treatment and their membership in a particular group. In 2018, an immigration judge reversed on remand the decision of the BIA in Perez-Rodriguez v. INS to deny the claimant, who had a mental health disability, withholding of removal and asylum.72 The judge found that Perez-Rodriguez would be subject to persecutory harm upon returning to Mexico—which was corroborated by Eric Rosenthal’s expert testimony derived from73 Disability Rights International’s investigations into institutions such as mental health facilities. Still, the BIA overruled74 the immigration judge, arguing that the subpar conditions of the institutions could also be attributed to economic and political factors, instead of persecution alone. In other words, the BIA stated that the persecution Perez-Rodriguez faced was a function of countrywide conditions not specifically targeted at disabled individuals. The Eighth Circuit concurred with the BIA’s decision in 2020.75
Claims amounting to torture
Disabled asylum-seekers may also seek limited immigration relief through the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),76 which prevents the United States from deporting people to a country where they are “more likely than not” to face torture or cruel and degrading treatment. The CAT defines torture as any intentional infliction of severe physical or mental pain or suffering, with the involvement of a public official, for the purposes of obtaining information or a confession, punishment, coercion, or discrimination.77
However, the legal threshold78 for substantiating a CAT claim is higher than that for an asylum claim. A claimant must show that they could face torture, which is a more severe harm79 than persecution. Protection under the CAT only allows for withholding or deferral of removal, neither of which provide a pathway to permanent legal status, and leaves open the possibility that the claimant could be ordered to be removed to a third country. As with asylum claims regarding disability, some courts have granted80 CAT protections to disabled asylum-seekers, and others have not.
Navigating an asylum claim
Asylum-seekers have their eligibility for protection determined after they are already in the country. There are two pathways81 for claiming asylum in the United States: defensive and affirmative. In affirmative cases, the asylum-seeker comes forward to request protection after already being present in the United States. In defensive cases, the government is seeking to deport the individual, and the asylum-seeker is raising asylum as a defense to deportation. Those pursuing defensive asylum have presented themselves to an official at or between a port of entry, or have entered the country without legal documentation, before making their claim.82
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act established a process of expedited removal83 for noncitizens deemed to lack a legal basis to remain in the United States. Those removed through this process do not have the right to contest the removal determination. By law, expedited removal should not84 be used against asylum-seekers, whose protection claims must first be assessed and adjudicated. Once immigrants reach or cross the border, U.S. Customs and Border Protection can initiate expedited removal proceedings against certain individuals who are removable, mandating their detention. From detention, these people can begin the process of claiming defensive asylum.85 Once they express their experiences or fear of persecution in their home country, an asylum officer is supposed to conduct a credible fear interview.86
If an asylum officer determines that an asylum-seeker meets the threshold for credible fear— meaning that there is a “significant possibility” that they could establish a case for asylum—their case will be referred to an immigration judge with the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR), who will determine whether or not to grant asylum or other forms of relief.87 Asylum-seekers who receive a denial can appeal their cases. Those who have exhausted their appeals are ordered to be removed and returned to their country of origin.
The credible fear interview, which lays the bedrock for an asylum claim, presents immense challenges to all asylum-seekers—challenges that are exacerbated by disability. Since these interviews are often conducted while an asylum-seeker is detained, their mental or physical disabilities may be exacerbated by traumatizing detention conditions,88 making it even more difficult to meaningfully participate in their interviews. As Human Rights First recently found,89 asylum-seekers often spend months in detention before receiving a credible fear interview, prolonging this harm.
Most asylum-seekers and immigrants in removal proceedings do not90 have the right to government-appointed counsel. Lack of access to counsel is one of the biggest challenges faced by detained asylum-seekers and immigrants, despite being a strong determinant91 of their case outcomes. Detained asylum-seekers and immigrants with lawyers are more than twice as likely92 to be granted immigration relief than those without counsel. And for immigrants and asylum-seekers able to access counsel independently, those lawyers have a positive obligation under the ADA to provide reasonable accommodations.
In the 2015 landmark case Franco-Gonzalez v. Holder, a federal district court ruled that detained immigrants and asylum-seekers with severe mental disabilities have the right to federally appointed counsel.93 This is the first group of noncitizens to win a right to legal representation. The case also resulted in the development of a national plan94 to identify and protect those with serious mental health conditions in immigrant detention centers in Arizona, California, and Washington. However, while this ruling was an important milestone, the courts, in evaluating the requirements for counsel, should expand the ruling’s scope to include other vulnerable groups such as children and other immigrants and asylum-seekers with developmental disabilities.
Unaccompanied children with disabilities
Unaccompanied children with disabilities are a particularly vulnerable population. Traveling without a parent or guardian, they move through the asylum system under the care of federal agencies; many are released to families for the duration of their immigration case, but some may spend months or even years in custody. In 2021, U.S. Customs and Border Protection reported 144,83495 encounters with unaccompanied children at the border, but neither CBP nor the agency that takes custody of unaccompanied children, the U.S. Office of Refugee Resettlement (ORR), releases public data on the number of unaccompanied children who disclose they have, are perceived to have, or are determined to have disabilities.
Similar to adults, children are detained upon arrival at the border after encountering CBP. However, under the Flores settlement agreement96—a core set of requirements for the detention, release, and treatment of children in immigration custody—and the Trafficking Victims Protection Reauthorization Act (TVPRA),97 children must be transferred from CBP detention to the custody of the ORR within 72 hours.
Once a child is released from CBP custody, the ORR is required to place children in the least restrictive setting in their best interests, which is usually reunification with their parents or other family members. Before that release, the ORR places children in a variety of different settings. Examples98 of levels of ORR placement include:
- Secure facilities, which are juvenile detention centers, for children who the ORR believes pose a danger to self or others or who have been charged with or convicted of a criminal offense99
- Staff secure facilities, including “residential treatment centers” for children with mental health concerns, which use enhanced security measures and higher staff-to-child ratios for children with nonviolent criminal histories or behavioral issues
- Shelter care facilities, for most children 13 years old and older
- Transitional foster care, for children under 13 years old, pregnant and parenting teenagers, and children with “other special needs”
- Long-term foster care, for children who do not have family or other individual sponsors to whom they can be released
Although the ORR is legally obligated100 to place children in facilities with the “least restrictive setting in the best interests of the child,” a Disability Rights California report101 found that children with disabilities are disproportionately placed in ORR’s most restrictive placement settings. One operational secure facility, the Shenandoah Valley Juvenile Center, is the subject of ongoing litigation regarding whether unaccompanied children under its care have been provided adequate, trauma-informed mental health care.102 While priority for foster care placements is given to disabled children as a matter of ORR policy, the policy also calls for children who exhibit “self-harming behavior”—which may stem from a history of trauma or psychiatric disability—to be moved from shelter care facilities to staff secure or secure care facilities.
The Olmstead v. L.C.103 Supreme Court decision, which held that the integration mandate of the ADA upholds the right of disabled individuals to live in less restrictive settings, could be applicable in placement decisions and arguments for release. This principle of integration is reflected in the ORR’s internal regulations104 for children to be placed in the “least restrictive” settings and its priority for children with “special needs” to be placed in transitional foster care settings.
In 2018, the National Center for Youth Law filed Lucas R. v. Azar,105 alleging that the ORR’s placement policies and practices violate Section 504, the Constitution, and the Flores settlement because unaccompanied children who have or are perceived to have disabilities are not being placed in the least restrictive setting and are instead being segregated on the basis of their disability. The lawsuit challenged the ORR’s rejections of parent or sponsor placements and alleged that the consequences of these restrictive placements prolong the time children spend in ORR custody and create administrative barriers to their release. As the case undergoes litigation, a recent March 2022 decision required the ORR to provide “clear and convincing” data to support the placement of a child in a more restrictive setting, in addition to strengthening due process for children who are at risk of being elevated into restrictive placements.106 This means that there are increased opportunities for advocates to challenge restrictive placements.
As children in detention approach their 18th birthday, U.S. Immigration and Customs Enforcement (ICE) determines if the young person, who cannot remain in ORR custody after they turn 18 years old, will be released or placed in adult detention. In the Garcia Ramirez v. ICE107 class action lawsuit, a federal district court determined that ICE failed to consider less restrictive settings for unaccompanied youth aging out of the system. While Garcia-Ramirez was not about disability, the ruling is especially relevant for young people with disabilities aging out of custody who require support services to live in their communities in the least restrictive settings. After the ruling and amended ICE training and directives, the majority of youth108 have been released instead of being forced into adult detention.
After fleeing Honduran gangs at age 17 and entering the United States, Kevin Euceda109 experienced the negative effects of restrictive settings firsthand. Once placed in ORR custody, he was moved to a secure facility based on disclosures he made to a clinician, which he thought were confidential. When he aged out of ORR custody, his therapy notes were shared with ICE,110 whose lawyers cited them to appeal both his grant of asylum and his grant of protection under the CAT, for which he had proved he had a “well-founded fear of persecution” and was “more likely than not” to be tortured upon return to Honduras. After spending more than three years in detention fighting for release, he decided to self-deport as COVID-19 ravaged detention centers. A month after he returned to Central America, he was found dead.111
Since Euceda’s experience in detention in 2021, the Biden administration revoked the Trump-era information sharing policy112 under which his information was transferred. This policy also allowed ICE to use ORR information to arrest 170 potential sponsors suspected of unlawful presence in the United States,113 deterring others from coming forward as sponsors and leading to prolonged periods of family separation and time in ORR care for unaccompanied children.114 Such detention could cause isolation that can contribute to health deterioration and lack of access to necessary disability services and supports.
A new memorandum of agreement was established in efforts to limit information sharing between the ORR, ICE, and CBP on matters relating to unaccompanied children and their sponsors.115 Additionally, the ORR has instituted a new policy that bans the sharing of “non-essential case file information,” including medical, mental, and behavioral health information, for the purposes of immigration proceedings or enforcement.116 However, administrations also can create new agreements to resume and potentially expand information sharing policies, which could create further barriers and discrimination against disabled asylum-seekers.
Disability and detention
Asylum-seekers have the right to remain in the United States while their claims are being processed, but they do not117 have the right to be free from immigration detention during that time. This has serious implications for disabled asylum-seekers who may face discriminatory treatment in detention.
To protect their clients from discriminatory treatment, many immigration and disability rights lawyers rely on Section 504118 of the Rehabilitation Act, which covers a majority of immigrant detention centers that are privately owned or operated.119 Section 504 has been used as a basis to support the right to reasonable accommodations in detention, as well as to prevent the placement of disabled people, including children, in solitary confinement120 or higher-security121 detention facilities instead of in integrated settings.
While detainees with disabilities in federally owned, operated, or funded detention centers can make Section 504 claims, Title II of the ADA122 applies to private entities that provide public accommodations, as well as state and local governments themselves (but not the federal government). This includes detention centers that are privately run and carrying out programs, services, or activities on behalf of state or local governments, such as contracts to provide detention services. It remains unclear whether Title III of the ADA covers privately run detention facilities.123 Thus, further probing of the ADA’s applicability by immigration and disability rights lawyers and organizations, in addition to federal agencies such as the Department of Justice, could be helpful for detained asylum-seekers, especially if they are detained in private or state-run detention facilities.
Although the U.S. Department of Homeland Security (DHS) is mandated to comply with Section 504 and the ADA (depending on the type of detention facility), by creating disability access plans124 for each of its agencies, the implementation of such plans is still a major concern. There is a lack of well-funded, proactive enforcement mechanisms for both the ADA and Section 504, meaning that disabled asylum-seekers experiencing discrimination and ableism must undertake costly litigation to access accommodations and legal protections.
One investigation125 by Disability Rights California into the Otay Mesa Detention Center found that ICE lacked protocols for disabled asylum-seekers and immigrants to request accommodations. In another instance, an investigation by the American Civil Liberties Union (ACLU) found that ICE outright ignored accommodation requests. According to the investigation, Fabian Vazquez,126 an immigrant with a hearing disability detained at the Aurora Contract Detention Facility, had to wait months before ICE provided him with a set of hearing aids despite requesting them as soon as he entered detention. During this time, he was reportedly not able to communicate with his attorney. In addition, the ACLU found that ICE officers forced Vazquez to take visits in a loud room, effectively preventing him from communicating with his friends and family.
At the Winn Correctional Center in Louisiana, a Human Rights Watch investigation found that Manuel Amaya Portillo,127 a Honduran asylum-seeker, was denied access to a wheelchair for his physical disability and had to rely on other detainees to access the shower, toilet, and sink. According to the report, on the day that inspectors toured the facilities and interviewed detainees, Portillo was segregated in a small room and given sedatives without his consent.
Asylum-seekers with mental disabilities have also suffered discrimination and mistreatment. Human Rights First found128 that mental health care is limited in ICE detention centers. Detained immigrants and asylum-seekers have been denied medication for mental illness, verbally abused for requesting mental health care, and denied care outright.
In 2019, disability and immigrant advocates initiated a class action lawsuit, Fraihat v. U.S. Immigration Customs Enforcement,129 arguing that the conditions of immigrant detention centers and their lack of monitoring and oversight amount to discrimination against detainees, specifically for those with disabilities. The outcome of the case has the potential to mandate better detention conditions and to reshape who may be detained, based on possible accommodations.
In recognition of these failings, in April 2022, ICE released a new directive130 regarding the detention, monitoring, identification, transfer, and release of immigrants and asylum-seekers with serious mental disabilities. While this effort does not provide for the release of all disabled detainees, mechanisms including communication between ICE and legal representatives and the creation of safe release plans represent an important step toward addressing the disproportionate ways that detention negatively affects disabled immigrants and asylum-seekers.
Many disability and immigrant rights organizations are fighting to raise awareness and increase protections for disabled people in immigration detention who wish to seek asylum in the United States. The ADA recognizes disabled people as a protected group and affirms their right to be free from discrimination because of their disabilities. There is a large opportunity for disability and immigration advocates to work together and learn from each other, including by exploring the applicability of the ADA, along with other legal protections, for disabled asylum-seekers. The U.S. Department of Justice, the U.S. Department of Homeland Security, and federal policymakers should also take note of the evidence of discrimination and the unique challenges disabled asylum-seekers face as their protection claims are considered.
Combined with the group-based protections enshrined in asylum and refugee law, the ADA could contribute to the potential for building an immigration system that affords disabled asylum-seekers both dignity and due process as they seek humanitarian protection.
The authors would like to thank Kyle Ross, Suzanne Harms, and Anona Neal for fact-checking, and Professor Arlene Kanter, Anne Kelsey, Debu Gandhi, Elisa Massimino, Nicole Lee Ndumele, Nicole Svajlenka, Rachael Eisenberg, and Mario Bruzzone for their reviews and input.
- Carlos Ríos Espinosa, “Accommodating Asylum-Seekers and Migrants with Disabilities,” Human Rights Watch, February 6, 2019, available at https://www.hrw.org/news/2019/02/06/accommodating-asylum-seekers-and-migrants-disabilities.
- Kaelyn Forde and Geneva Sands, “Mom fights to have 10-year-old daughter with cerebral palsy released from immigration detention,” ABC News, October 26, 2017, available at https://abcnews.go.com/US/mom-fights-10-year-daughter-cerebral-palsy-released/story?id=50734923.
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