“You Suffer A Lot”
Immigrants with Disabilities Face Barriers in Immigration Court
Immigrants with disabilities face many barriers as they navigate deportation proceedings in U.S. immigration courts, where they must gather and submit evidence, testify, and present their case, often without a lawyer. These proceedings are adversarial, confusing, and terrifying for many immigrants, particularly people facing deportation to persecution or torture. As detailed in this report, the barriers that disabled immigrants face are exacerbated by a lack of resources and information about immigrants’ rights under disability law in immigration court proceedings, absence of an established protocol for exercising those rights, denials of reasonable accommodations and safeguards to meaningfully participate in their proceedings, the use of detention to jail people during their immigration court cases, and disability discrimination in immigration court, including bias, stigma, and hostility from immigration judges. These barriers and harms violate federal disability law, Constitutional due process protections, and immigration law.
Federal laws and regulations, including the Rehabilitation Act and Department of Justice (DOJ) and Department of Homeland Security (DHS) agency regulations, prohibit disability discrimination. Under the Rehabilitation Act and its implementing regulations, immigrants with disabilities are entitled to reasonable accommodations in immigration court proceedings. Case law binding on immigration courts separately requires judges to evaluate and provide safeguards to immigrants who are unable to participate in their proceedings due to mental disabilities. However, the Executive Office for Immigration Review (EOIR), the agency that oversees immigration court, does not have a comprehensive disability policy, process for requesting accommodations, or publicly identifiable EOIR staff who are available for disability-related questions and concerns.
Failures by immigration courts to comply with disability law and provide adequate accommodations underscore the urgent need for EOIR to develop public guidance on disability access and accommodations. President Biden issued a series of Executive Orders in January 2021 and February 2023, requiring federal agencies to take steps to advance equity, including for people with disabilities. Both Executive Orders instruct the head of each agency to identify potential barriers that underserved communities, including people with disabilities, may face in accessing agency programs, and to produce a plan to address those barriers. DOJ’s 2022-2026 Strategic Plan identifies equal access to justice as a goal, and states that the Department will “strive to remove obstacles that prevent meaningful access to counsel and courts for members of underserved communities.” These mandates provide EOIR with an important opportunity to develop necessary, and long overdue, disability access policy.
EOIR should, in consultation with disability rights and immigration rights stakeholders, develop comprehensive disability nondiscrimination and access policies, including by creating a simplified reasonable accommodation request and review process, appointing disability access coordinators, and instituting regular immigration judge training on disability law, nondiscrimination, and specific disability categories. Human Rights First’s full recommendations are included below in this report’s recommendations section.
This report is based on research conducted by Human Rights First between September 2022 and April 2023, including 49 interviews with attorneys, advocates, and people seeking asylum, and information on 123 immigrants with disabilities in Arizona, California, Colorado, Florida, Illinois, Louisiana, Maryland, Massachusetts, New Jersey, New York, North Carolina, Texas, Vermont, Washington D.C., and Virginia who underwent immigration court proceedings, data on complaints submitted to the DHS Office for Civil Rights and Civil Liberties (CRCL) received through a Freedom of Information Act (FOIA) request by Human Rights First, other publicly available government statistics, civil rights violations complaints, published investigations by other human rights organizations, and media reports.
- Though federal law and regulations prohibit disability discrimination in immigration court proceedings and require reasonable accommodations for immigrants with disabilities, there are no public EOIR policy documents, directives, training materials, or instructions for requesting disability accommodations, or other documents on disability access in immigration court proceedings. Lack of EOIR guidance on disability access has contributed to non-compliance with federal law and regulations guaranteeing disability access, depriving people with disabilities of a meaningful opportunity to participate in their immigration court proceedings.
- d/Deaf and hard of hearing immigrants have been prevented from communicating effectively in immigration court or understanding their proceedings due to immigration judges’ lack of basic understanding of how being deaf impacts a person’s ability to communicate, failure to grant accommodations, deficient interpretation, failure by Immigration and Customs Enforcement (ICE) to provide access to communication services for detained d/Deaf and hard of hearing people, and egregious medical and mental health neglect in ICE jails. Immigrants impacted by these rights violations include a young d/Deaf man denied communication accommodations because the judge stated he “had been able to speak” in a hearing ten years prior without addressing the man’s ability to hear or the fact that the man had gradually become deaf due to brain tumors he developed the same year as his prior hearing; a d/Deaf Salvadoran asylum seeker who could not understand what was happening in court because the judge disregarded his, his attorney’s, and a deaf education expert’s objections that the court’s Salvadoran Sign Language interpreter did not sign competently; and a detained d/Deaf man who could not understand the sign language interpreter who was signing through video-teleconferencing on a small screen far from the man, with poor connection quality, but was forced to proceed even after the interpreter raised these issues to the court.
- Blind and low vision people face barriers and discrimination throughout the immigration court process, including inability to read written EOIR communications, difficulty arranging transportation to hearings, challenges navigating the courthouse, lack of EOIR resources on how to request accommodations for blind or low vision immigrants, and ICE’s failure to provide basic vision services to blind and low vision immigrants in detention, such as prescription glasses, which has prevented immigrants in detention from being able to see who is speaking to them in court or read and complete applications for relief.
- EOIR has failed to provide accommodations for some immigrants with physical disabilities, such as by ensuring that all immigration courts are physically accessible or providing free transportation to hearings where free transportation programs for people with disabilities are not available. Lack of appropriate accommodations stigmatizes people with disabilities and compounds the difficulty and stress of preparing for and attending a hearing. Immigration court failures to inquire into competency issues and provide appropriate accommodations harms people with physical disabilities. One man with cerebral palsy, a condition which affects his ability to speak, endured a hearing where the judge made no inquiries into his disability. The man did not receive assistance until a legal organization intervened. Horrific medical neglect and discriminatory use of solitary confinement (sometimes referred to as “administrative segregation” or “disciplinary segregation”) in ICE detention against immigrants with physical disabilities further deprives them of a fair opportunity to present their case.
- Immigrants with cognitive, neurological, and mental health disabilities have been denied accommodations and safeguards, with some found not credible and denied protection due to failures by immigration judges to recognize the impacts of disabilities on memory and testimony or to take into account medical records submitted to the court. These include a Venezuelan asylum seeker denied asylum in part due to inconsistencies that were related to memory issues arising from his traumatic brain injury (TBI) and an asylum seeker living with brain cancer that caused cognitive and memory issues who was found not credible due to an inability to recall certain dates, times, and the precise order of events in her claim.
- Failure by judges to recognize the impact of TBIs and other trauma-related disabilities such as post-traumatic stress disorder (PTSD) inflicts severe trauma and harm on people seeking asylum who are denied safeguards and forced to testify about their persecution. A judge denied a request to hold a competency hearing and institute safeguards for a Cuban asylum seeker who suffers seizures when talking about past trauma, including being raped due to her political opinion. In another instance, an asylum seeker from the Central African Republic who was imprisoned and beaten on the head repeatedly for months in his home country, causing a TBI, was forced to testify despite a recommendation from a psychologist at the ICE detention center where he was jailed to waive testimony. This caused severe trauma and head pain throughout the four-hour hearing, during which the asylum seeker pressed and rubbed his temples repeatedly.
- Immigrants with mental health disabilities face bias, stigma, and discrimination in immigration court. Judges have used disparaging language in cases involving people with mental disabilities, including referring to an asylum seeker’s mind as “Swiss cheese” before ordering her deported and accusing another immigrant experiencing delusions and partial seizures of “faking it,” claiming that his attorney may be “making a mountain of a molehill.” Immigration judge bias toward people with mental health disabilities endangers human lives and underscores the urgent need for training regarding identifying mental illness, communicating with people with mental health disabilities, and understanding how mental health disabilities may impact a person’s ability to present their case.
- Though immigration law and Board of Immigration Appeals (BIA) case law requires immigration judges to assess a person’s “competency” to participate in proceedings in any case where there is an indication that the immigrant might not be competent to proceed and further mandates that judges provide safeguards to enable them to participate in their proceedings, immigration judges have failed to hold meaningful competency hearings and provide adequate safeguards for people with mental disabilities. In some instances, judges have held truncated competency hearings or refused to hold competency hearings altogether, denying immigrants and their attorneys an opportunity to demonstrate the need for safeguards. Judges have also disregarded expert evidence such as psychological evaluations and relied on their own non-expert impressions to deny critical safeguards, including in a case where a judge ignored the recommendation of a detention center psychologist.
- People in immigration detention, including those with mental health disabilities, experience additional trauma, isolation, worsening of their disabilities, medical and mental health neglect, solitary confinement, and challenges communicating with their attorneys, all of which prevent them from preparing and presenting their case to the immigration court. These include a 17-year-old unaccompanied child from Honduras with PTSD, major depressive disorder, and a history of suicide attempts who was detained in a rural area of Virginia, exacerbating his mental health disabilities and his sense of isolation from his community and support systems; an asylum seeker with PTSD, depression, anxiety, and auditory hallucinations who struggled to share his story with the court during his detained immigration hearing because ICE had failed to provide him with his psychiatric medications and was denied protection; and an asylum seeker from Venezuela who was forced to appear for his final asylum hearing eight days into his stay in solitary and was denied asylum.