By Elena Pruett-Fiederlein, J.D. Class of 2022
Many of us have heard variations of the “good immigrant” myth, or the popular notion that some immigrants to the United States––whether through their extraordinary abilities, financial prospects, or unique histories––offer better contributions to American society and are therefore more deserving of welcome than others.1 As a student in the Immigration Clinic this semester, I have been thinking about this a lot, particularly as I watch the humanitarian catastrophe unfold in Ukraine and see the ways the United States and other Western countries have mobilized to offer protection to Ukrainian refugees while denying it to those fleeing poorer, browner, or less Christian countries. Others have already written2 about how this crisis has laid bare the double standards in our immigration laws and the racism that has always been at their core.
In a famous immigration case from 1975, which concerned John Lennon’s exclusion from the U.S. due to a drug conviction, the court aptly described the law of immigration exclusions as a “magic mirror,”3 reflecting our exaggerated cultural anxieties back at us. Historically, alongside people of color and non-Christians, others frequently labeled “undesirable” immigrants and excluded in large numbers included people with disabilities. In addition to taking the Clinic this semester, I also have the opportunity to do an independent research project on the history of disability-related exclusions in U.S. immigration law, specifically those related to mental illness and addiction. This topic is personal for me, as someone in recovery from substance abuse and mental illness. So far, I have learned that while we have gradually gotten rid of many of the more odious and explicitly discriminatory grounds of exclusion over the years, certain disability-related ones remain, reflecting the antipathy and disdain our country still has toward people like me––we are still undesirable.
My research project focuses on INA §§ 212(a)(1)(A)(iii)-(iv) and its implementing regulations, which directly render inadmissible noncitizens with alcohol and drug addiction and certain other psychiatric diagnoses. In addition to these explicit exclusions, however, provisions elsewhere in the statute like public charge inadmissibility, good moral character requirements, and especially criminal grounds of inadmissibility/deportability all act proxies for excluding the addicted, disabled, and mentally ill. All of these inadmissibility grounds trace their origins back to the earliest laws excluding certain “kinds” of immigrants, which were passed in the 1880s, just as the eugenics movement was gathering steam in the United States.
To the architects of the 19th century eugenics movement, race and disability were intimately linked. “The eugenics movement in the United States was organized around three pillars: 1) the presumed superiority of the white Anglo-Saxon race; 2) the fear of racially inferior, unassimilable, undesirable immigrants; and 3) the fear of mental [and physical] disability.”4 Proponents of eugenics, believing that certain undesirable traits could be bred out of the population to create an ideal race, feared the “degeneration” of the American “breeding stock” through an increase in nonwhite and disabled immigrants.5 The infamous Chinese Exclusion Act of 1882 also coincided with the first explicit restrictions on immigrants with disabilities: the 1882 Immigration Act banned the entry of “any lunatic, idiot, or any person unable to take care of himself without becoming a public charge,”6 as well as “convicts.”7 Immigrants with visible physical disabilities were often turned away upon arrival, on the assumption that they could not work and would therefore become “public charges.”8 In the following decades, more categories were added to this list of exclusions, including “epileptics,”9 “feeble-minded,”10 “imbeciles,”11 and “insane persons.”12 In 1917, “chronic alcoholics”13 were added, along with the category of “constitutional psychopathic inferiority”14––later changed to “psychopathic personality”15––which was interpreted to ban LGBTQ noncitizens as “sexual deviants” until the 1990s.16
Meanwhile, stereotypes about the links between immigrants and disability proliferated. Advocates for the immigration quota system introduced in 1924 claimed that immigrants from certain countries were disproportionately mentally and physically “defective.”17 Tropes about the “slow-witted Slav,”18 “neurotic Jew,”19 and “violent and alcoholic Irishman”20 were common. In addition to eugenicist concerns about “contaminating” the American population with undesirable genes,21 others argued that disabled and/or racially inferior immigrants could or would not work as hard as able-bodied, white Americans, and therefore were a barrier to industrial development.22 As the Commissioner General of Immigration put it in 1907, “The exclusion from this country of the morally, mentally, and physically deficient is the principal object to be accomplished by the immigration laws.”23
Since their peak in the early-to-mid-20th century, exclusions on the basis of disability have gradually declined, as eugenic ideology has fallen out of favor and mental illness and addiction are increasingly seen as medical problems rather than moral failings.24 The Immigration Act of 1990 modified the existing disability-related inadmissibilities to create the categories we have today, namely: noncitizens who have a “mental or physical disorder and behavior associated with the disorder” that may pose a threat to the safety of themselves or others and “drug abuser[s] and addict[s].”25 Those in the former category are eligible for waiver; those in the latter are not.[26] Additionally, the number of noncitizens actually excluded on the basis of disability has decreased dramatically from its peak of over 42,000 between 1911 and 1920.27 In 2019, 480 noncitizens were inadmissible because of a mental or physical disorder and 1,395 because they were “drug abusers or addicts.”28
However, as exclusion of noncitizens with disabilities on these health-related grounds has declined, criminal exclusions have exploded.29 The trend toward mass incarceration beginning in the second half of the twentieth century has meant that more and more people––citizens and noncitizens alike––with physical and mental disabilities are caught up in the criminal legal system.30 The criminalization of drug use in particular has been a driving force behind increased criminal immigration exclusions, as drug convictions become proxies for disability and “degeneracy.”31 One of many problems with using drug convictions to approximate addiction is that convictions don’t go away––a person who has been in recovery for years can still be excluded based on an old conviction.32 And that may be exactly the point.
Tropes about immigrants, substance abuse, and crime also trace their origins back to the early years of exclusionary immigration laws. The Chinese Exclusion Act followed seven years after the nation’s first drug criminalization law––a San Francisco ordinance criminalizing opium dens––and reflected fears about Chinese immigrants’ use of opium.33 The temperance movement of the early 20th century, which culminated in the passage of the 18th Amendment, was closely tied to xenophobic organizations concerned about the influences of Irish, German, and Italian immigrants, who were supposedly predisposed to alcohol addiction.34 Throughout the mid-20th century, Mexican immigrants were increasingly associated with marijuana use, leading to its heavier criminalization.35
The War on Drugs, which began in earnest in the 1970s, targeted African Americans as well as immigrant populations with its heavy penalties for even the mere possession of controlled substances.36 More and more of these drug violations became deportable offenses, best exemplified by the creation in 1988 of the “aggravated felony” category, which includes many drug-related offenses.37 Today, anxieties about noncitizen drug traffickers and substance-abusing Latinx immigrants in particular are prevalent,38 and the number of substance-related deportable crimes seems poised to increase rather than decrease––for example, since 2005, there have been numerous attempts to make driving under the influence a deportable offense.39
As I continue to read about the history of these laws, I can’t help but think that immigration law is a nearly unique field. Other than criminal law, there’s really no other area of the law where we feel so comfortable saying explicitly what “kinds” of people we find more desirable than others, or what behaviors and traits we feel are unworthy of existing among us. Immigration law has always been about exclusion versus inclusion, and delineating who exactly “belongs” within our borders. But it’s through our labeling of “bad immigrants” that we reveal the ugliness within ourselves.
[1] One Clinic blog post from last summer discussed the “good immigrant” narrative in the context of DACA. See Gabby DeBelen, Deconstructing the “Good” Immigrant, Wm. & Mary Law School Immigration Clinic Blog (July 26, 2021), https://wmimmigrationclinicblog.com/2021/07/26/deconstructing-the-good-immigrant.
[2] E.g., Nikolai Ingistov-Garcia, Opinion, A Glaring Double Standard – One for Ukrainian Refugees, One for Central Americans, L.A. Times (March 20, 2022, 3:05 AM), https://www.latimes.com/opinion/story/2022-03-20/ukraine-refugees-mexico-immigrants-border.
[3] Lennon v. INS, 527 F.2d 187, 189 (2d. Cir. 1975).
[4] Monika B. Kashyap, Toward a Race-Conscious Critique of Mental Health-Related Exclusionary
Immigration Laws, 26 MICH. J. RACE & L. 87, 94 (2021).
[5] Medha D. Makhlouf, Destigmatizing Disability in the Law of Immigration Admissions, in Disability, Health, Law and Bioethics 187, 190 (I. Glenn Cohen et al., eds., 2020).
[6] Douglas C. Baynton, Defectives in the Land: Disability and American Immigration Policy, 1882-1924, 24 J. Am. Ethnic Hist. 31, 33 (2005).
[7] Id.
[8] See generally Jay Dolmage, Disabled Upon Arrival: The Rhetorical Construction of Disability and Race at Ellis Island, 77 Cultural Critique 24 (2011).
[9] See Baynton, supra note 6, at 33, 35.
[10] Id. at 33.
[11] Id.
[12] Id.
[13] Jayesh M. Rathod, Distilling Americans: The Legacy of Prohibition on U.S. Immigration Law, 51 Hous. L. Rev. 781, 815 (2014).
[14] Baynton, supra note 6, at 33.
[15] 5 Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada., Immigration Law and Procedure § 63.02 (Matthew Bender rev. ed. 2022).
[16] Id.
[17] Baynton, supra note 6, at 41.
[18] Id.
[19] Id.
[20] Rathod, supra note 13, at 804.
[21] See Baynton, supra note 6, at 35.
[22] See Mark C. Weber, Opening the Golden Door: Disability and the Law of Immigration, 8 J. Race & Just. 153, 160 (2004).
[23] Baynton, supra note 6, at 34.
[24] See Weber, supra note 22, at 161-62; see Makhlouf, supra note 5, at 190-91.
[25] Weber, supra note 22, at 163. The two other categories of health-related inadmissibility are those with “communicable diseases of public health significance,” and those who have not met certain vaccine requirements. I.N.A. §§ 212(a)(1)(A)(i)-(ii), 8 U.S.C. §§ 1182(a)(1)(A)(i)-(ii).
[26] Weber, supra note 22, at 163.
[27] 5 Charles Gordon et al., supra note 15, § 63.02.
[28] Id.
[29] See generally Drug Policy Alliance, Report: The War on Drugs Meets Immigration (2021).
[30] See generally Disability Incarcerated (Liat Ben-Moshe et al. eds., 2014).
[31] See Drug Policy Alliance, supra note 29, at 2; see Makhlouf, supra note 5, at 190.
[32] See Drug Policy Alliance, supra note 29, at 3.
[33] Id. at 1.
[34] Rathod, supra note 13, at 802-05.
[35] Drug Policy Alliance, supra note 29, at 2.
[36] Id.
[37] Id. at 2-3.
[38] E.g., Rathod, supra note 13, at 833-34.
[39] Id. at 843-46.
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