Exclusionary ableism

• Pages: 65-91
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Angélica Guevara,Tania N. Valdez

EXCLUSIONARY ABLEISM

ANGE

´LICA GUEVARA* AND TANIA N. VALDEZ**

ABSTRACT

The U.S. immigration system ref‌lects society’s values and priorities and

shapes the makeup of the country. Since the earliest immigration laws and

continuing through today, people with disabilities have been targeted for

exclusion and expulsion. This Article employs philosopher Louis Althusser’s

theory on ideology to analyze and explain how U.S. immigration law not only

ref‌lects an ableist ideology, but actively reinforces it. We coin a new term, “exclu-

sionary ableism,” to describe this phenomenon.

Althusser identif‌ied two crucial aspects of how ideology is replicated

throughout society. First is the Ideological State Apparatus, which inf‌luences

people every day through institutions such as family, religion, and schools.

Second is the Repressive State Apparatus, which enforces ideology through

violent and coercive institutions such as the police, courts, and military.

Exclusionary ableism ref‌lects these two components, as this concept both

(1) describes the dominant ideology in the United States that rejects and fears

people with disabilities and is apparent in our immigration law and policy,

and (2) explains how that ideology is actively reproduced through the U.S.

immigration system, which functions to exclude and expel noncitizens with

disabilities.

* Dr. Ange

´lica Guevara, Assistant Professor, Indiana University Kelley School of Business.

Dr. Guevara is a neurodivergent Latina with a reading and writing disability who focuses on disability

rights law and non-apparent disabilities. She received her B.A. from UCLA, her J.D. from UC Berkeley

Law, and her Ph.D. from UC Berkeley’s Graduate School of Education. She is a Law and Society

Graduate Fellow and a William H. Hastie Fellow from the University of Wisconsin Law School.

** Tania N. Valdez, Associate Professor of Law, George Washington University Law School.

Professor Valdez is an immigration lawyer who has represented numerous people with disabilities in im-

migration proceedings. Both authors would like to thank Rachel Moran, Cori Alonso-Yoder, Kate

Weisburd, Nicole Godfrey, Ruth Colker, Raquel Aldana, Evelyn Rangel-Medina, Alexander Boni-Saenz,

Jamelia N. Morgan, Ce

´sar Cuauhte

´moc Garcı

´a Herna

´ndez, and Carrie Rosenbaum for their insightful

comments. We also thank Rachel Lynch, Maeve McBride, Maddy Klimchak, and Angela Zito for their

valuable assistance in the process of writing this piece.

65

TABLE OF CONTENTS

INTRODUCTION ........................................ 66

I. HISTORIC AND CURRENT EXCLUSION OF PEOPLE WITH DISABILITIES

THROUGH IMMIGRATION LAW ........................... 71

II. THEORIES ON CREATION AND PERPETUATION OF ABLEIST IDEOLOGY . . 75

A. Foucault: Power and Disability. . . . . . . . . . . . . . . . . . . . 75

B. Althusser’s On Ideology . . . . . . . . . . . . . . . . . . . . . . . . . 78

1. ISA: Perpetuating Ableist Ideology................. 79

2. RSA: Enforcement of Ableist Ideology through

Immigration Law ................................ 80

III. UNVEILING EXCLUSIONARY ABLEISM . . . . . . . . . . . . . . . . . . . . . . 81

A. Immigration Police & Prisons..................... 82

B. Immigration Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

C. Immigration Gatekeepers. . . . . . . . . . . . . . . . . . . . . . . . 87

IV. A CALL TO ACTION ................................. 90

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

INTRODUCTION

Despite civil rights gains over the past several decades, people with dis-

abilities continue to be seen as unworthy at best,

1

and feared as dangerous at

worst. On the basis of various disabilities, people are presumed to be unintel-

ligent,

2

violent,

3

unable to take care of themselves,

4

or otherwise fail to con-

tribute to their communities. The United States’ immigration system as a

1. Ange

´lica Guevara, The Need to Reimagine Disability Rights Law Because the Medical Model of

Disability Fails Us All, 2021 WIS. L. REV. 269, 274 (2021) [hereinafter Guevara, Disability Rights]

(describing how disability antidiscrimination law focused on “reasonable accommodations” centers non-

disabled people as the standard and treats people with disabilities as unworthy, a stereotype that fails to

maximize their human potential).

2. See generally JAY TIMOTHY DOLMAGE, ACADEMIC ABLEISM: DISABILITY AND HIGHER EDUCATION

(2017) (arguing that disability has often been viewed as incompatible with higher education and higher

education has viewed disability as a problem to be solved).

3. MARGARET PRICE, MAD AT SCHOOL: RHETORICS OF MENTAL DISABILITY AND ACADEMIC LIFE 133

(2011) (arguing that the link between mental illness and violence is a false stereotype and misconceived).

4. Jeffrey Ross, Jamia Marcell, Paula Williams & Dawn Carlson, Postsecondary Education

Employment and Independent Living Outcomes of Persons with Autism and Intellectual Disability, 26(4)

J. POSTSECONDARY EDUC. & DISABILITY 337, 337 (2013) (noting that people with disabilities can obtain

employment and live independently, thus contributing to their communities, when given proper support).

66 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 39:65