Immigration and Disability in the United States and Canada

17 Pages Posted: 17 May 2015 Last revised: 14 Jun 2016

See all articles by Mark C. Weber

Mark C. Weber

DePaul University College of Law

Date Written: June 13, 2016

Abstract

Disability arises from the dynamic between people’s physical and mental conditions and the physical and attitudinal barriers in the environment. Applying this idea about disability to United States and Canadian immigration law draws attention to barriers to entry and eventual citizenship for individuals who have disabilities. Historically, North American law excluded many classes of immigrants, including those with intellectual disabilities, mental illness, physical defects, and conditions likely to cause dependency. Though exclusions for individuals likely to draw excessive public resources and those with communicable diseases still exist in Canada and the United States, in recent years the United States permitted legalization for severely disabled undocumented immigrants already in the country, and both countries abolished most exclusions from entry for immigrants with specific disabling conditions. Liberalization also occurred with regard to U.S. naturalization requirements.

Challenges continue, however. Under U.S. law, vast discretion remains with regard to the likely-public-charge exclusion, because consular officers abroad decide unilaterally whether to issue immigrant visas. Moreover, conduct related to mental disability, including petty criminality, can result in removal from the United States, and individuals with mental disabilities have only modest safeguards in removal proceedings. In Canada, families who have children with disabilities find themselves excluded from legal status because of supposed excessive demands on public resources, although an individual’s disability may provide grounds for avoiding removal in certain cases. The relaxation of some immigration exclusions in Canada and the U.S. and of some U.S. requirements for citizenship illustrates a significant, though conspicuously incomplete, removal of disability-related barriers in North American law and society.

Keywords: immigration, Canada, disability, disability discrimination, disability rights, civil rights, public charge

JEL Classification: I38, J61, K10, K30, J70

Suggested Citation

Weber, Mark C., Immigration and Disability in the United States and Canada (June 13, 2016). 32 Windsor Yearbook of Access to Justice 19 (2015), Available at SSRN: https://ssrn.com/abstract=2606781

Mark C. Weber (Contact Author)

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
312-362-8808 (Phone)
312-362-5448 (Fax)

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