Disability, Intersectionality and U.S. Immigration Policy: Keeping out Defectives

By Beth Jörgensen

“The control of bodies is integral to the construction of the nation state.” Lennard J. Davis

In the public debates over immigration to the United States of the past thirty or forty years, little attention has been paid to the status of disabled people as immigrants or as resident aliens seeking to change their status. One does not generally hear arguments either for or against current U.S. immigration policy in terms of how and why these policies have been consistently designed since the late 1800s to exclude the disabled. In recent discussions of immigration policy and in a review of 170 political cartoons addressing immigration policies under presidents Obama and Trump, immigrants with disabilities are largely invisible, as they continue to be in many areas of our society despite advances made for their inclusion since the passing of the Disability Rights Act of 1994. However, despite their invisibility, they have been and continue to be directly affected by government policies that are designed to establish and maintain the borders that hold in those who belong to the nation by holding out those who don’t. In this brief paper, I will review provisions in U.S. immigration policies since the late 1800s as they pertain to the construction of disability as a stigmatized, undesirable human identity that we best keep on the other side of our borders. I will also show how in addition to the exclusion of immigrants with a range of supposedly disabling physical, intellectual and psychosocial conditions, at different moments in our nation’s history certain national, ethnic and racial identities have been defined as inherently disabled, regardless of health or ability status, and cited as a justification for denial of entry. Finally, I will address the persistence of the “public charge” provision over the course of almost 150 years, and its recent strengthening by the Trump administration, as a manifestation of the enduring imperative to control bodies and borders and keep the country safe from the “threat” posed by “defectives” (Baynton 32), an imperative rooted in the lethal ideologies of ableism and white supremacy.

The idea to look at this issue in the context of our “Border Environments” conference comes from my engagement over recent years with the field of disability studies and the realization that disability is so rarely raised in the context of our most important social and cultural debates, including over immigration. I have not done my own research into primary historical sources, and this brief presentation draws on Douglas Baynton’s 2005 article “Defectives in the Land: Disability and American Immigration Policy, 1882-1924,” John Stanton’s 1996 study “The Immigration Laws from a Disability Perspective” and other published research on U.S. immigration policy and disability that supports their assertions, as well as recent news reporting around the expansion of the regulations around the public charge provision of the Immigration and Naturalization Act (INA) in 2019. Mainstream media reporting has not focused on the impact of the new rules on the disabled or the families of a disabled person, leaving that to disability rights and immigrant advocacy groups.

Prior to 1882, the United States had a largely open-door policy for immigrants, with the exception of laws that allowed for the exclusion or deportation of poor people (Hirsi). A constant influx of newcomers was essential to settle the expanding frontier and to work in agriculture, although only white people could become naturalized citizens according to the 1790 Naturalization Act (Molina 23). However, as xenophobic and anti-immigrant sentiment grew in the mid 19th century, our first major Immigration Act was adopted in 1882. It excluded people with mental and physical defects, defined as “lunatics, idiots, or any person unable to take care of himself or herself without becoming a public charge” (Stanton 445). Poverty for whatever reason and the inability to work were unacceptable conditions for residents and citizens. In 1891, 1903 and 1907 the laws were revised to place ever stricter controls on the entry of persons perceived to be “defective.” Epileptics, imbeciles and the feeble-minded were specifically subject to exclusion. These diagnoses are vague and gave a great deal of license to immigration officials to bar entry to individuals based on highly subjective assessments of their intellectual capacity. This entire category of undesirables as well as the public charge provision take for granted the notion that “epileptics, imbeciles and the feeble-minded” and those who do not contribute to the economy are of no value as human beings. Gainful employment as a qualification for joining the nation is a persistent and unquestioned premise of U.S. immigration policy. Exclusions due to physical and sexual “abnormalities” were also broadly defined and open to the interpretation of the designated gate keepers. They included some specific conditions such as arthritis, flat feet, bunions, varicose veins and anomalies of the sexual organs (Baynton 34), as well as the ever useful and flexible label of sexual deviance. A literacy requirement imposed in 1906 effectively blocked people who were blind or of very low vision, deaf or lacking an arm from gaining access to our country regardless of their ability to work based on their inability to read a print publication, speak or write, respectively (Stanton, 450). Douglas Baynton makes the point that the economic argument, that is, the argument that people with disabilities would place an undue burden on public resources and become a “public charge” was undergirded by eugenicist beliefs and often had little to do with the employment history or job prospects of the excluded individual. He notes that at the same time as restrictions on disabled immigrants tightened, U.S. citizens and other residents who were deemed disabled were increasingly segregated in institutions, and subject to sterilization under state eugenic laws (Baynton 32). The concept of “improving the race” (“mejorar la raza”), which is familiar to students of Latin American societies, has been generously promoted under U.S. law, including through immigration policies.

The intersection of ethnicity and disability becomes visible in the 1924 law that set up quotas to limit immigration from southern and eastern Europe. Baynton discovered in the records of the debates over that legislation that “Quota advocates warned that particular nationalities were disproportionately prone to be mentally defective” or physically unfit (41). He cites documented statements to the effect that Slavs were deemed to be “slow-witted,” and Jews, Italians, Greeks, Portuguese and Serbians were characterized as being “undersized,” even “dwarfish” and of poor physique (41). As Natalia Molina shows in her article “Medicalizing the Mexican,” throughout the 20th century, Mexicans have been subjected to contradictory views of their physical capacity, depending on how much they were needed to provide low-paid manual labor, primarily in food production. At times Mexicans have been described as especially fit and able to endure hard physical work and of a conveniently docile nature, but when the impact of immigration on American white society was being questioned by some in the 1920s and 30s, Mexicans were suddenly characterized as an inferior race prone to illness and unsuitable for assimilation and citizenship (Molina 27, 33).

The effort to exclude the disabled immigrant, variously defined, from entry into the United States follows at one level an economic logic, but underlying that argument is a persistent ableist construction of the disabled other as inferior, undesirable, and even threatening to the nation, as shown by evidence developed by Baynton and Stanton. Their research documents exemplary cases since colonial times      of immigrants with financial means and job skills who have been excluded on the basis of a perceived disability. They also quote statements by immigration officials that explicitly express the intent to admit only the fit and the “normal” (Stanton 447-448). Some disability and health exclusions in the INA were modified in 1990 such that mental retardation, psychopathic personality, insanity and physical “defects” were taken out of the law, as long as a person does not pose a safety threat to self or others (Stanton 453; Weber 162-163). It could be suspected that this opens the door to arbitrary decisions based on the “threat” to public safety that the stigmatized other inherently presents.

Jumping to the present day, we can see the continuation of the discrimination and exclusion of people with disabilities that was first codified in legislation in 1882. When the term “public charge” was used in the 1882 law, it was left undefined. In 1999 an amendment to the 1952 INA defined public charge as the dependence on cash welfare benefits, benefits, incidentally, that few immigrants qualified for. However, in the fall of 2018, a change to the public charge provision of the INA was proposed by Department of Homeland Security and opened to public comment. The changes were aimed at making it more difficult than before for persons with a disability to immigrate legally or to apply to change their immigration status if they were already in the United States. It added numerous public benefits beyond cash assistance as possible disqualifying factors for attaining green cards by immigrants legally residing in the U.S.; and as a reason to exclude newly arriving immigrants if they were judged to need them. SNAP, Medicaid, Section 8 housing, and SSI are primary among them. This proposed rule, which has a complicated set of exceptions based on household income, access to private medical insurance and other factors that reduce the likelihood of future dependence on public benefits, was approved and, after surviving a series of lawsuits, began to be implemented this past summer.

Ken Cuccinelli’s comments in an August 2019 NPR interview make clear the ableist assumptions behind the public charge rule, past and present: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge. […] All immigrants who can stand on their own two feet, self-sufficient, pull themselves up by their bootstraps” would be welcome according to Cuccinelli. Although the 1994 Americans with Disabilities Act theoretically opens up employment opportunities based on the right to demand reasonable accommodations, thereby undermining the rationale for the public charge exclusion, people with disabilities in the U.S. remain unemployed at a far greater rate than the nondisabled. Employment statistics are calculated in a variety of ways, but generally the rate of unemployment among the disabled is given as almost 70% for those aged 16 to 65 years, and over 90% for those older than 65. A substantial percentage of minority who are employed hold part time jobs. Ableist assumptions about the lesser desirability of employing a person with a disability shape hiring decisions in a significant way, and therefore lead to a greater dependence on public assistance. Newly arriving immigrants are subject to these same assumptions as they are screened for admission, and families with a disabled member stand little to no chance of being admitted under the public charge rule. It is worthy of note that the public charge rule is not an equal opportunity exclusion. A study done of the potential impact on immigrants of the new rule shows that non-Europeans are disproportionately deemed to be of high risk for becoming a public charge, and therefore should be excluded, and those from Central America, the Caribbean and Africa are judged to be at the highest risk (Boundless report). (One cannot forget in this context Trump’s racist characterization of Haiti and African countries as “shit hole nations” and his appeal to more immigration to the U.S. from Norway).

For our discussion, we might think about the ways that the historical and current closing of our borders to disabled persons on economic grounds, with its roots in eugenics and intersecting with fear and defamation of the national, ethnic and racial other, manifests a powerful dehumanizing desire to “keep the land free of defectives” (Baynton) in support of the ideologies of ableism, classism and white supremacy. We should also question the idea that supporting oneself defines one person as of higher human value than another who cannot engage in economic activity. In fact, no one is self-supporting, nor does anyone stand for very long or get very far on their own two feet.

Works Cited
Baynton, Douglas. “Defectives in the Land: Disability and American Immigration Policy, 1882-1924.” Journal of American Ethnic History, Vol. 24, No. 3 (Spring, 2005), pp. 31-44.
Boundless (corporate author). “The Public Charge Rule: Which Immigrants Are Most At Risk?” https://www.boundless.com/research/public-charge-rule-immigrants-most-at-risk/
Hirsi, Ibrahim. “Trump administration’s ‘public charge’ provision has roots in colonial US.” The World. December 19, 2019. https://www.pri.org/stories/2018-12-19/trump-administration-s-public-charge-provision-has-roots-colonial-us
Molina, Natalia. “Medicalizing the Mexican: Immigration, Race, and Disability in the Early-Twentieth-Century United States.” Radical History Review No. 94 (Winter 2006): pp. 22–37.
Stanton, John F. “The Immigration Laws from a Disability Perspective: Where We Were, Where We Are, Where We Should Be.”  Georgetown Immigration Law Journal,Vol. 10, No. 3 (Spring 1996), p. 441-466. HeinOnline.