Excerpted From: Elizabeth Butterworth, “What If You're Disabled and Undocumented?”: Reflections on Intersectionality, Disability Justice, and Representing Undocumented and Disabled Latinx Clients, 26 CUNY Law Review 139 (Summer, 2023) (115 Footnotes) (Full Document)


ElizabethButterworthThe intersection of disability and immigration status is under-explored in both legal academic literature and training resources for lawyers. In the words of Alice Wong, a disabled activist, author, and host of the Disability Visibility podcast, “Undocumented people have always been invisible, and there's little known or written about undocumented disabled people.” But it is an important intersection and in need of attention. Exclusionary immigration laws in the United States have always been grounded in mutually reinforcing white supremacist and ableist ideologies, and the current U.S. immigration system is both ableist and disabling. The further intersection of undocumented immigrant, disabled, and Latinx identities is in need of specific attention: first, because approximately 78% of undocumented immigrants in the United States were born in Mexico and Central America, South America, or the Caribbean; and second, because anti-immigrant rhetoric, law, and policy in the United States is often blatantly and violently anti-Latinx. Donald Trump brought this violence to the center of national rhetoric and policymaking, amplifying existing white nationalist movements, building on an already draconian immigration system to implement extreme exclusionary and violent practices, and intensifying the fear, violence, and discrimination faced by Latinx communities in the United States.

While the Biden administration has rolled back some of Trump's more extreme immigration measures, Canizales and Agius Vallejo describe “Latinos' heightened experiences of racism, and the relegitimization of overt [w]hite nationalism” as “one of [the Trump administration's] lasting legacies.” The ways that Latinx immigrants who are both undocumented and disabled experience the U.S. legal system are shaped by this context, and by multiple other legal contexts, including U.S. disability law, disability law in their country of origin, and international human rights frameworks including the Convention on the Rights of Persons with Disabilities (which the majority of Latin American countries have ratified and the United States has not).

This article brings together scholarship from multiple disciplines alongside personal narratives that explore the experiences of undocumented and disabled Latinx immigrants across a range of contexts. I have chosen to focus on the experience of being disabled, undocumented, and Latinx in the United States not to exclude narratives from other immigrant communities, but to honor the specificity and complexity of how ableism is constructed, sustained, and resisted in the context of the U.S. government's rhetorical and policy response to migration from Latin America, especially migration across the southern border. My hope is that, in theorizing the ways legal practitioners can use a disability justice and intersectional lens to understand harms caused by the legal system, this article provides a framework for similar attention to the intersection of undocumented status and disability in other communities. Using an intersectional lens, I will show that discrimination, violence, and other manifestations of systemic subordination impact individuals who both are disabled and have a precarious immigration status differently than either disabled citizens or non-disabled non-citizens. Further grounding my analysis in the framework of disability justice developed by Patty Berne, Mia Mingus, Leroy Moore, Stacey Milbern, Eli Clare, and Sebastian Margaret will reveal how these intersections create opportunities for solidarity and movement-building based on the recognition that ableism, imperialism, and white supremacy constitute and reinforce each other.

Naming and understanding the intersection of undocumented status and disability is crucial for lawyers committed to pursuing anti-subordination work, whether through representing individual clients or supporting grassroots movements. I write as a white and non-disabled civil legal aid practitioner, and the goal of this article is to open a conversation that is particularly relevant for other legal aid attorneys. I focus on legal aid both because it is where I practice, and because legal aid lawyers provide direct representation to undocumented and disabled clients on a range of legal issues, many of which are not explicitly related either to disability discrimination or to immigration status, but all of which may be shaped by a client's experiences navigating anti-immigrant and ableist systems. This work also has implications for disability rights and immigration attorneys. Ultimately, this article is a call to action for legal practitioners to locate our day-to-day work more precisely within the overlapping systems of oppression that impact our clients, and to adopt a more expansive vision of our role in supporting clients in their pursuit of justice for themselves and for their communities.

Part II introduces disability rights as the predominant framework for opposing ableism through the U.S. legal system, and then turns to the disability justice critique of disability rights as a framework that is insufficiently intersectional and transformative. Disability justice informs my definition of disability, my understanding of the intersections between ableism and other systems of subordination, and my normative position that the goal of legal scholarship and practice is to support clients and communities who work to dismantle systems of subordination. Part III describes how the U.S. immigration system is both ableist and disabling, forcing undocumented Latinx migrants into situations that increase the likelihood of developing mental illness and physical impairments, while at the same time communicating through both explicit policy and fear-mongering rhetoric that seeking care leads to deportation. Part IV draws together literature from diverse fields and personal narratives that touch on immigration status and access to services for disabled individuals, exploring how, on the one hand, immigration status is often a barrier to accessing services in the United States, and, on the other hand, the relative strength of services available in the United States can be a motivation for migrating and remaining. Part V offers concrete suggestions for how an awareness of the intersection of disability and immigration status might inform a lawyer's approach to building a relationship, providing holistic support, and developing legal strategy with undocumented and disabled clients. Finally, Part VI concludes with brief suggestions for further work.

[. . .]

This article provides a wide-ranging overview of the connection between Latinx identity, disability, and immigration status, because no other article has attempted to map this intersection broadly and across contexts. However, there is much more to be done. Before concluding, I outline three specific limitations and suggestions for further work.

First, the suggestions in Part V are limited by the fact that they are not primarily grounded in examples from practice but, rather, arise from reading a wide range of narratives and academic studies touching on the experience of undocumented and disabled Latinx immigrants, reflecting on my experience of legal aid practice, and imagining how these two contexts intersect. There is need for empirical work that centers the first-hand narratives of Latinx immigrants navigating the legal system as, for instance, plaintiffs bringing civil rights claims against employers or housing providers, claimants in administrative actions contesting the denial of healthcare services or other benefits, and defendants in eviction cases. There is need for narratives that answer questions like: How do undocumented and disabled Latinx immigrants experience working with legal aid lawyers? What happens when an undocumented and disabled Latinx immigrant needs a reasonable accommodation in housing or employment?

Second, disability justice says that disabled and undocumented Latinx immigrants should be leading efforts to address the harms inflicted by both the immigration system and the limitations of the disability rights framework. Whether and how legal aid lawyers (or any lawyers) fit into this work is a question that is best answered by movement leaders, not attorneys. There is a need for deep relationship-building and partnerships, and for the development of legal strategies that follow the lead, and meet the needs, of grassroots organizations.

Third, many of the narratives that inform this article center Mexican immigrant experiences. Most of the larger-scale empirical studies constructed Latinx individuals as a monolithic group, sometimes differentiating between immigrant with residency status, undocumented immigrant, and U.S.-born, but rarely differentiating between countries of origin. None of the larger-scale empirical studies presented data disaggregated by race. There is need for work that addresses the experiences of different Latinx immigrant communities, and that addresses how anti-Black racism impacts the experience of Latinx immigrants who are Black, disabled, and undocumented. And there is need for work that centers the experiences of disabled immigrants from Indigenous communities in Latin America.

The U.S. immigration system is, and has long been, ableist and disabling. Yet immigrants have limited legal recourse for challenging its ableist harms, because the rights-based framework of U.S. disability law is more accessible to citizens than to non-citizens, especially undocumented non-citizens. These two systems, immigration law and disability law, interact and shape the experiences of clients who are undocumented, disabled, and Latinx. In response, lawyers need to attend to the ways specifically anti-Latinx rhetoric, law, and policy shape the experiences of undocumented and disabled clients.

In law school, I represented tenants for three years through Harvard Law School's Tenant Advocacy Project and the Harvard Legal Aid Bureau, where I also represented clients with unemployment benefit denial and wage theft claims. I currently represent low-income, older adult tenants through an Equal Justice Works fellowship sponsored by the Danaher Corporation in Legal Counsel for the Elderly's Tenant Advocacy and Support Practice.