Abstract

Excerpted From: Sarah E. Corsico, Epistemic Injustice in Removal Proceedings: Disability, Disablement, and the Subjugation of Knowledge in the U.S. Immigration System, 60 Harvard Civil Rights-Civil Liberties Law Review 251 (Winter, 2025) (386 Footnotes) (Full Document)

Disabled noncitizens face unique and cumulative harms in the immigration removal process. Consider the story of Aleksandr Khukhryanskiy, a Ukrainian refugee who came to the United States in 1998. He had a documented history of paranoid schizophrenia, psychosis, post-traumatic stress disorder, and major depression, for which he received some care. In 2010, he applied for a green card; however, due to a criminal conviction, the Department of Homeland Security (“DHS”) placed him into removal proceedings and detained him. While in detention, Aleksandr explained, “[t]he voices are really bothering me. I cannot be here anymore. Let them deport me.” An expert determined that he was incompetent to proceed in court, even with an attorney. However, despite this finding, Aleksandr continued pro se in immigration court, where he told the judge that he “wanted to be deported,” but also that he did not understand the proceedings. The judge, failing to intervene, ordered him removed.

Next, take the experience of Mark Lyttle. Mark is an individual from Puerto Rico with diagnosed disabilities, including cognitive disabilities and bipolar disorder, who has frequent seizures. In 2008, while confined in a psychiatric hospital, he was “charged with touching a female orderly.” He was arrested and held in jail. While in jail, Immigrations and Customs Enforcement (“ICE”) questioned him alone, and charged him with a removable offense. While Mark is a United States citizen, he had no proof of his nationality, and ICE erroneously determined that he was from Mexico. Therefore, after he served his jail sentence, ICE detained Mark in immigration detention. He proceeded unrepresented in immigration court and was deported.

Finally, weigh the story of Rosa, a five-year-old girl with epilepsy who was caged with her mother and sibling at the Texas border. Rosa “takes medication three times a day ... follow[ing] a strict dietary regimen” in order to manage her symptoms. However, while she was in Customs and Border Patrol (“CBP”) custody, her medication was taken away, and she was denied medical treatment until she eventually started convulsing. As a result, CBP had to take Rosa to a hospital with her mother, where Rosa was treated for two days. Doctors prescribed medication and nutritional supplements, but once Rosa returned to detention, “CBP agents withheld the medicine and meal supplements.” Rosa would not have access to these essential medications again until she was released from detention and placed at a shelter with her mother.

While the facts are different, Aleksandr, Mark, and Rosa's stories exemplify the violence that disabled individuals face in the immigration system. In both Aleksandr and Mark's cases--whether it was Aleksandr's explanation that he was confused about the court process or Mark's declaration that he was, in fact, a U.S. citizen--their disabilities were disregarded, and their truths were discredited. As a result, both were ordered excluded from the United States. In Rosa's case, CBP's callous confiscation of life-saving medical equipment highlights how Rosa's disability (and her mother's understanding of Rosa's needs) was dismissively ignored, leading to the exacerbation of Rosa's condition and the risk of death. CBP's actions implicitly suggest that Rosa's lived experience as a disabled individual was irrelevant, silencing her voice and subjugating her body. All three of these stories represent the punitive ways that the removal system is designed to exclude and specifically harm individuals with disabilities. Importantly, these individual examples reveal the layered harm that disabled noncitizens face in the immigration system: through physical harm, but also more deeply through the silencing of experiences, the discrediting of narratives, and the dismissal of subjective knowledge about someone's own body and needs.

As of January 2023, there were 2,097,244 cases pending in immigration courts nationwide. Organizations estimate that fifteen percent of the world population has a disability, and that in the United States, one in four people have a disability. Additionally, this percentage could be even higher for migrants who face a disproportionate amount of “persecution, torture, and trauma.” The exact number of disabled noncitizens currently in removal proceedings is unknown, but in 2008, it was estimated that about fifteen percent, or 57,000 people, who were in immigration proceedings had a disability.

While federal and civil rights protections are formally in place for noncitizens in immigration proceedings, noncitizens' rights are routinely violated, and those who hold positions of power frequently fail to comply with the laws' protections. Despite the immigration system's obligations under the Immigration and Nationality Act (“INA”), Section 504 of the Rehabilitation Act (Section 504), and the American with Disabilities Act (“ADA”), individuals are routinely denied competency hearings and frequently denied reasonable accommodations. It is also widely known that ICE fails to provide adequate medical care, illegally uses solitary confinement, and neglects the most vulnerable individuals in detention. As a result, disabled noncitizens face extensive barriers in their proceedings, both in terms of physical participation as well as knowledge-based participation (i.e., missing court appearances, being unaware of their rights, and not understanding forms or documents). These physical and knowledge-based barriers are especially important to consider in the context of the defensive asylum process, since an individual's personal testimony can be the defining factor of success in their proceedings.

While myriad scholars and activists have shed light on the egregious harms and violations taking place in immigration removal proceedings (including both immigration court and detention), few have viewed the immigration system through an epistemic injustice lens. Epistemic injustice, as a framework, considers how societal structures of power impede or limit knowledge production in terms of one's own testimony or experience and therefore constrict our broader “collective knowledge.” Scholars employing an epistemic injustice framework examine how institutions are organized to explicitly and implicitly silence some individuals or groups, and as a result, limit our societal understanding of a topic to the experiences of those who hold power through their economic status, gender, education level, or other characteristics. The narrowing of knowledge production in this manner harmfully biases public policy and legislation, and thus, the legal system, as the experiences of those most marginalized are excluded from policymakers', scholars', practitioners', and ultimately, every day people's understanding of how the system works in practice.

Viewing the immigration system through an epistemic injustice lens is critical to understanding how barriers in immigration court are much more than hurdles to a fair hearing, but rather should be viewed as structures that disproportionately and deliberately keep the experiences of disabled noncitizens on the margins rather than at the center of the process. Thus, such barriers not only make it harder for individuals to win their own cases, but they actually prevent society more broadly from understanding the ways in which violence is inflicted on people passing through the immigration system. They also underscore how, as a result, simple reforms to the process will never produce fairness.

For one, Professor Lisa Washington has highlighted the far-reaching implications of epistemic injustice, explaining the importance of analyzing social structures at their extremes, in order to better understand how the system's subjugation of people and knowledge not only “exacerbate[s] [the] marginalization of already disadvantaged groups,” but actually “influences legal policy, legislation, and legal interpretation.” This impacts everyone, not just those who are marginalized. It becomes clearer how a deeper understanding of how the system is designed to subjugate the most marginalized matters immensely for us all when we consider how the immigration system not only affects noncitizens but also U.S. citizens (those who sponsor family members, live in communities with, and have friends who are, noncitizens); how the immigration structure affects the U.S. economy, politics, and everyday experiences of people in the United States (especially those in border states); how the system interacts with and fuels the criminal legal system; and how flows of migration into the United States have global implications,.

Using an epistemic injustice framework, this Note will explain how the immigration system carries out physical- and knowledge-based exclusion and argue that more laws or protections will not solve the layered violence that shapes these proceedings; rather, the whole system needs to be abolished. Stricter enforcement of the ADA and Rehabilitation Act is an important means of equalizing proceedings, but it does not go far enough in countering the subordination of disabled noncitizens' within this structure. However, an expansion of existing practices of movement lawyering and organizing--working together--challenges the underpinnings of the immigration system, in contrast to the way that reforms inherently accept them. Such practices are not only working to dismantle that system, but in doing so, center the voices of the people most impacted by the system's violence, providing unique insight into the immigration removal process and creating space for the experiences of those with, in many cases, the most knowledge about migration, disability, and the system itself.

Part I of this Note provides a brief background on the immigration court process and the evolution of a defensive removal case, as well as outlines the existing disability laws and protections that apply in the removal process. Part II employs the theory of epistemic injustice to first elucidate a more complete picture of the harm inflicted on disabled noncitizens throughout their proceedings in the immigration system and to then explore the manner in which disabled noncitizens' experiences never make it into the public awareness, thereby limiting our understanding of the immigration system itself and how it can be transformed. Part III considers potential solutions for the inequalities inherent to the immigration system. It considers how full enforcement of the ADA and Section 504 as well as universal access to counsel could rectify some of the harm in this process and evaluates how recent calls for reform and systems-impacted led initiatives could disrupt the system. But ultimately, it calls for the abolition of immigration detention and a complete reimagining of the immigration system and the ideologies that motivate it.

Briefly, it is important to explain the use of the term “disability” throughout this Note, as the term is multi-dimensional and its meaning often ““fluctuates with the context.” Ultimately, many view the term as more than a medical diagnosis, but rather as a “nuanced concept that includes social, psychosocial, biological, medical, and legal processes.” Over time, scholars have explored, expanded upon, and questioned the term ““disability,” taking a “theoretical approach that seeks to trace how disability functions as an ideology, epistemology, and system of oppression in addition to an identity and lived experience.”

Scholars of disability law have acknowledged both a medical and social definition of disability. They have considered disability “as a person's condition or trait that is ... situated within the corporeal being,” (the medical model) as well as “an impairment that arises from the relationship between the person and the social and physical environment” (the social model). Importantly, this dual consideration of disability as both a feature of an individual and of their society reveals and emphasizes how “society is not neutral and that biases are built into its very structures, norms, and practices, which can then produce disability.”

In this piece, I adapt features of both the medical and social models in an attempt to situate this work within this broader scholarship and understanding of disability. In the immigration removal context, disability as a medical diagnosis can have a profound impact on an individual's ability to navigate the system--not necessarily because of an impairment itself, but often because of the way the system is designed exclusively with able-bodied individuals in mind. Simultaneously, and perhaps more importantly, recognizing disability through a social model demonstrates how the immigration removal process exacerbates impairments while also disabling individuals, leading to further subordination and exclusion as a result.

This Note will also view the immigration system through a lens of disablement. It is impossible to discuss disability in the immigration removal context without accounting for the ways in which the system itself produces and magnifies disability. Scholars have considered the concept of disablement in a variety of contexts, but especially as it occurs in the criminal legal and family regulation systems. Disablement is built upon the idea of “emergent disability,” and provides a comprehensive way of discussing how disability exists, how it is experienced, and how it can be formed. As some have explained, “[emergent disability] refers not simply to the presence of disability, but to the social, political, legal and economic processes by which people who have disabilities are subordinated.” Importantly, disablement also captures the idea that disability can be created through systems of power and oppression. It can be “socially produced, and more specifically produced by violence, inequity and subordination.” In this way, disablement as a concept helps capture different postures of disability (pre-existing and created disability) as well as the accompanying subjugation that occurs as a result.

Analyzing the immigration system through a lens of disablement allows for an understanding of how the system itself both exacerbates and creates disability, leading to the further marginalization of people as they proceed through the removal process. This marginalization becomes even more pronounced when we consider, through the application of epistemic injustice theory, the ways in which disabled noncitizens' knowledge and experiences are subsequently silenced in the system. Thus, this analysis exposes how the immigration removal process is not only designed to damage our broader understanding of disabled noncitizens' experiences, but also how it uses the very harm it creates to legitimize and justify the exclusion of people through credibility determinations and application denials. This process can be situated in the larger immigration system, which is widely understood to be rooted in racist, xenophobic, and ableist ideologies traced to eugenics, with the goal of selective inclusion and mass exclusion.

Finally, this Note uses both identity-first and person-first language to refer to disability. The preference of one over the other depends on the community and person, and I use the terms interchangeably here to be as inclusive as possible. On a similar note, throughout the Note, I use the term “noncitizen” to refer to any individual in the United States without U.S. citizenship. This therefore includes individuals who are undocumented, as well as visa holders, refugees, asylees, and green card holders (among others). I do this intentionally, because even individuals with lawful status can face immigration consequences and be placed in removal proceedings.

[. . .]

It is well known that the immigration system brutally and inhumanely excludes, the impact of which can be felt most acutely by disabled noncitizens. Beyond recognizing the barriers that disabled noncitizens disproportionately face in immigration proceedings, it is imperative that we understand how this harm works on a deeper level--by discrediting the narratives and experiences of disabled noncitizens and preventing their stories from ever entering the system. The ways that disability is silenced in the immigration system--through discretionary judicial decisions, denied accommodations, and a legal hierarchy that treats disability as a hindrance rather than an identity-- reinforces the marginalization that disabled noncitizens face and perpetuates biases rather than expanding our understanding of what it means to migrate to the United States and to live with a disability.

The application of epistemic injustice to immigration proceedings, in light of the disablement that the system produces, allows us to see how the immigration system creates disability through both physical and psychological violence, and then subsequently uses the manifestations of that disability to silence or impede knowledge--knowledge about lived experiences that could be used to better inform our understanding of legal systems, disability, and migration more broadly. While enforcement of the ADA and Section 504 could combat some of this harm on an individual scale, these laws remain limited in their ability to alter the ideological frameworks that legitimize the subjugation of disabled noncitizens in the first place. Mark, Aleksandr, and Rosa's lived experiences, and perhaps more importantly, their statuses as knowers--as people with stories navigating the legal system--were invalidated because of biases against the identities that they hold. Ultimately, the only real way to undo the harm of the immigration structure is to create space for the voices of those most harmed by the immigration system, and to use that knowledge to fundamentally rethink what it means to welcome people and to honor, not to dismiss, disability.

J.D., Brooklyn Law School, 2024; B.A., Middlebury College, 2018.