August 20, 2019

Disability Rights in Contemporary Immigration Debates

[Cross-posted from ImmigrationProf Blog]

By Jasmine E. Harris

We cannot fully understand the treatment of immigrant detainees and the numerous lawsuits filed against ICE and the Trump Administration without attention to disability rights. Not only do these cases underscore the intersection of immigration and disability rights broadly, but, more concretely, they offer novel and underdeveloped remedial avenues rooted in disability law. Disability statutes, like the U.S. Constitution, apply to individuals in the United States irrespective of citizenship and immigration status.

Yesterday, a coalition of leading civil rights groups filed a nationwide class action in the Central District of California to challenge the systematic denial of constitutional and statutory rights of people with disabilities in immigrant detention centers. Abdallah Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., No. 5:19-cv-01546 (C.D. Cal. Aug 19, 2019) (hereinafter, Fraihat Complaint). The putative plaintiffs are fifteen individuals detained at eight different facilities in six states, representing a putative class of approximately fifty-five thousand immigrants imprisoned by ICE daily, and two nonprofit organizations, Al Otro Lado and the Inland Coalition for Immigrant Justice (ICIJ). The Fraihat Complaint challenges the federal government’s failure to ensure detained immigrants at one-hundred fifty-eight detention facilities receive appropriate medical and mental health care, its alleged use of segregation in violation of the Fifth Amendment of the U.S. Constitution, and its failure to ensure that detained immigrants with disabilities are provided legally-mandated accommodations and are not discriminated against as required by Section 504 of the Rehabilitation Act of 1973.  The Fraihat Complaint details dangerous conditions present in detention facilities that place detainees with medical and mental health disabilities in precarious situations. Examples include self-accommodating wheelchair users without assistive mobility devices being forced to rely on fellow detainees to carry them; and people denied access to medications to manage chronic illness, exacerbating current disabilities and generating new ones.

Fraihat builds on well-established substantive and procedural precedents in the prisoners’ rights context. First, the key theory of liability is that Immigration and Customs Enforcement (ICE) cannot avoid statutory and constitutional duties by contracting with third parties to manage and operate detention facilities. Although ICE directly operates only a handful of detention facilities, plaintiffs rely on familiar agency principles to hold ICE, the Department of Homeland Security, and institutional actors liable for their failure to monitor, investigate, and remedy alleged systematic violations at approximately one-hundred fifty-three facilities run by local sheriffs’ offices and private contractors.  Among those implicated, the GEO Group and CoreCivic (formerly “Corrections Corporation of America”) are two repeat defendants in prison condition cases. The fact that ICE has failed to effectively monitor and oversee the daily management of these private contractors, and to take effective measures when it learns of problems in those centers under their care and control, is not news. Consider this recent report from California Department of Justice detailing the findings from an investigation of all ten detention facilities in the state. Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019) (finding highly-restrictive prison-like conditions including required uniforms, compulsory prison-wage labor, restrictions on access to counsel and receipt of medical and mental health care).  Nor is use of class remediation novel. Fraihat relies on Ninth Circuit precedent in an analogous prisoners’ rights case for the proposition that class certification is appropriate. The Ninth Circuit in Parsons v. Ryan , 754 F.3d 657 (9th Cir. 2014)., held that prisoners could proceed as a class to challenge Arizona’s policies and practices denying access to medical care, dental care, mental health care, and punitively employing isolation.

With respect to remedies, Plaintiffs seek injunctive and declaratory relief. They want Defendants to stop using segregation as a punitive weapon, to effectively monitor federal contractors acting as their agents, and to build institutional capacity to attend to the needs of those detained.  For example, the Fraihat Complaint alleges that ICE and DHS have no system of tracking detainees’ medical and mental health needs or requests for care and accommodations.  As a result, when detainees are transferred from one facility to another, they are forced to restart the process of requesting medical care or reasonable accommodations from the beginning, leading to major delays in receipt of urgent medical attention and disability accommodations.

Plaintiffs in Fraihat face an impossible choice: either languish in detention without medical and mental health care and risk exacerbation of disabilities (including death) or abandon their immigration cases. The Trump Administration’s aggressive enforcement and use of detention has flooded an already broken system that, unfortunately (and perhaps inconceivably), continues to be years behind failing prisons in terms of compliance with disability rights laws. 

The lawsuit was filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), the Southern Poverty Law Center (SPLC), and Orrick, Herrington & Sutcliffe LLP in the U.S District Court for the Central District of California. You can read the full Fraihat Complaint here.

Another recent example of disability rights at work in immigration debates is the Trump Administration’s amended “public charge” regulation, also the subject of California’s most recent lawsuit filed in federal court on August 16, 2019.  The new DHS regulation denies green cards to immigrants who use Medicaid, food stamps, housing vouchers or other forms of public assistance. While the rule may be problematic on its face, even if considered facially neutral, en arguendo, it will almost certainly have a disproportionate impact on immigrants with disabilities and their family members who are more likely to rely on Medicaid for health insurance. Before the DHS amendment, people with disabilities were considered “public charges” if they were likely to require institutional services such as long-term care. The expanded language in the rule may result in greater exclusion of people with disabilities and their families who rely on public insurance for the very supports necessary for them to access gainful employment and avoid economic dependency, such as personal home assistants or assistive technology.  Furthermore, other challenges to the Trump Administration’s immigration policies and practices, such as those pursuant to the settlement agreement in Flores v. Reno to challenge, among other policies, the Admiration’s separation of immigrant children at the U.S. border, while widely known, are filed within the immigration law cabinet without regard for the ways in which disability rights operate.  Flores, for example, requires that detained children be placed in “the least restrictive setting” in line with their age and other “special needs,” language that comes from the implementing regulations for Section 504 of the Rehabilitation Act of 1973 (requiring that services be provided in the “most integrated setting” appropriate). 

Perhaps most promising for this disability legal scholar is the recognition of disability rights as part of a broader civil rights agenda. My hope is that activists, practitioners, and scholars recognize the utility of these coalitions and consistently engage disability rights theoretical and legal principles to redress our most pressing social justice offenses of the day.

November 29, 2016

New Op-Eds by King Hall Faculty

In recent weeks, King Hall faculty have written several opinion pieces for the press.

Kevin R. Johnson in The Sacramento Bee: Trump's Immigration Promises Fraught with Obstacles

The Obama administration used detention aggressively in 2014, when the nation experienced the migration of thousands of women and children fleeing violence in Central America. That detention has resulted in litigation. In addition, the Supreme Court will soon hear a constitutional challenge to detention without possibility for release and any review by a court. Increased use of detention by a Trump administration is likely to result in many lawsuits. Expect those lawsuits to last for years.

Brian Soucek in The Los Angeles Times: Stop Proposition 8, and Marriage Inequality in California, from Making a Comeback

A federal district court judge found Proposition 8 unconstitutional in 2010, but legal appeals kept it alive until 2013, when a U.S. Supreme Court ruling finally allowed same-sex weddings to resume in California. Laws that are found unconstitutional don't get erased; they just lose their legal force. So the text of the ban lies in wait, ready to spring back into action if given the chance. The election of Donald Trump might provide that chance.

Irene Oritseweyinmi Joe in The Los Angeles Times: Like Many Immigrants, I Owe a Debt to the Republican Party - of the 1980s

Imagine their surprise, however, when I let them know that, although I disagreed with some of Reagan's policies, there was one for which I would always be grateful. My family had been undocumented immigrants, and it was the Reagan amnesty program that allowed us to exit the shadows.

Jasmine E. Harris in the Tribune News Wire (providing content for news media around the world): The Right to Vote for People with Mental Disabilities

Beyond physical obstructions to poll sites, voters with mental disabilities -- including learning disabilities, autism, Down syndrome as well as dementia and Alzheimer's -- face an even greater challenge in casting their ballots: deeply entrenched stereotypes that shape election law and policy. The majority of states deny these citizens, either by law or common practice, the right to vote.

Elizabeth Joh in Slate: Five Lessons from the Rise of Bodycams

More than two years after Ferguson became a hashtag, spawned a movement, and drew national attention to problems about police accountability, the most tangible reform has been the spread of police body cameras. Their use seemed like a clear solution to problems of trust and oversight, but the reality hasn't been that simple. Body cameras have introduced new problems of their own. How can we do better when the next new police technology arrives? Here are five things to keep in mind.

Elizabeth Joh in NYTimes.com's Room for Debate: Should the President Be Able to Block You on Twitter?

Like granting the White House press pool access, the president’s social media obligations may ultimately be decided as a matter of custom. In a democratic society that values transparency and accountability, keeping the social media account of a president open to all ought to be part of these customs.

October 17, 2016

The Role of Support in Sexual Decision-Making for People with Intellectual and Developmental Disabilities

Professor Jasmine Harris has an article on the Ohio State Law Journal's online publication. It is titled, "The Role of Support in Sexual Decision-Making for People with Intellectual and Developmental Disabilities."

The commentary is in response to Alexander Boni-Saenz's article Sexuality and Incapacity, 76 OHIO ST. L.J. 1201 (2015). Read Professor Harris's commentary at http://moritzlaw.osu.edu/students/groups/oslj/files/2016/10/Harris-FINAL.pdf.

Professor Harris's research lies at the intersection of civil rights, civil procedure, and social psychology. She is particularly concerned with the ways in which rules and procedures can change social norms, and, currently, explores these questions in the disability context.

April 7, 2016

Diversity and Disability

Last Thursday and Friday (March 31st and April 1st), I attended the 2016 Jacobus tenBroek Disability Law Symposium in Baltimore, Maryland. 


The conference at the National Federation of the Blind


Baltimore Harbor at night

This annual symposium, named in honor of Dr. Jacobus tenBroek, brings together disability rights scholars and practitioners to discuss current disability law issues and impact litigation.  Dr. tenBroek served the public in many roles, for example, as a constitutional law scholar at UC Berkeley and a leader of the blind civil rights movement.  As a civil rights activist, Dr. tenBroek understood the importance of cross-movement coalitions to increase the political power of the disenfranchised.  He advocated for the "right to live in the world" for people with disabilities:

The right of access to public accommodations and common carriers is a civil right. It is a basic right indispensable to participation in the community, a substantive right to which all are fully and equally entitled.

Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841, 858 (1966).

Race is a little discussed topic in the disability rights movement despite its connection to some of the central issues of racial justice today.  For example, disability should be front and center in legal and policy discussions about prisoners' rights (approximately 24-37% of all people in prisons and jails in the U.S. self-report as people with disabilities and are disproportionately people of color).   

This year's symposium brought diversity to the forefront of the conversation.  "Diversity in the Disability Rights Movement: Working Together to Achieve the Right to Live in the World" raised difficult issues about race, gender, and sexual orientation.   I attended a breakout session on the intersection of trans rights and disability that was facilitated by Victoria M. Rodríguez-Roldán, Director, Trans and Gender Non-Conforming Justice Project, National LGBTQ Task Force.  A packed room of legal scholars and practitioners shared ideas on how the Rehabilitation Act and the Americans with Disabilities Act can be used to remedy discrimination against trans people with disabilities.  Claudia Center, Senior Staff Attorney in the Disability Rights section of the American Civil Liberties Union Foundation discussed the applicability of the ADA to police arrests following the Supreme Court decision in City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015).  While the Court appears to have answered the question as to whether the ADA applies to police arrests (turning on whether police arrests constitute a "program or service" under Title II of the ADA), the question of what constitutes "reasonable accommodations" in the context of arrests remains unanswered. 


Judge Thompson addressing attendees at the luncheon

The highlight of the symposium for me - other than having a chance to exchange ideas with disability practitioners and scholars - was the keynote address by the Honorable Myron H. Thompson, U.S. District Judge, United States District Court for the Middle District of Alabama.  Judge Thompson, an African American federal judge with a disability (childhood polio), shared the role of race and disability in constructing identity.  He emphasized the power of internal stigma that comes from low expectations and invisibility and the therapeutic potential of community building and cross-movement pollination.  Judge Thomson reminded the conference participants of the legacy of Dr. tenBroek and called for greater educational opportunities for law students to understand that disability rights are civil and human rights.  He encouraged law schools to build a disability rights law curriculum and law professors to build connections across subject areas so that the next generation recognizes the interconnectivity of race, ethnicity, disability, class, gender, and sexual orientation.  

Judge Thompson was energized when he learned that UC Davis is among a small group of law schools offering disability rights courses taught by full time professors, supporting a student-led Disability Law Society, and regularly inviting practitioners and scholars to discuss disability rights. 

Two King Hall alumnae practicing disability law approached me after the lunch discussion to introduce themselves and applaud King Hall's commitment to disability rights.  I look forward to bringing them back to King Hall in the future to speak with students about careers in disability rights.