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November 14, 2024
Conduct a critical analysis of the paper "Immigrant Disability in the United States and Canada" authored by Max Weber. Examined the issue of how the article addresses contemporary rules in society that infringe upon immigrants' rights and the challenges they encounter in Canada today.
This article compares the provisions in the immigration and refugee laws of the United States and Canada that restrict the immigration of individuals with disabilities due to their conditions. This article traces the historical development of these laws in both nations, demonstrating that they have gotten progressively less restrictive over time. The Canadian immigration policy primarily aims to exclude individuals whose projected demands on health or social services may be excessive, but some exceptions exist (Churgin, 2000). In the Supreme Court ruling of Hilewitz v Canada (2005), the court asserted that medical officers must assess not only the eligibility for social services but also the applicant's or their family members' capacity and willingness to finance these services. The court's ruling mandated that authorities must conduct personalized evaluations rather than simply categorizing the disability. In this paper, the author suggests that the court's excessive emphasis on social services over medical treatment may undermine the relevance of this ruling (Weber, 2004).
Disability emerges from the interplay between individuals' physical and mental conditions and the environmental physical and behavioral barriers. The author uses the concept of disability in relation to the immigration laws of the US and Canada to highlight the barriers to entrance and eventual citizenship for those with disabilities. Historically, North American law omitted several provisions for immigrants. This included those with intellectual disabilities, physical impairments, mental infirmities, and other conditions anticipated to lead to reliance. Despite the exclusions for individuals potentially depleting public resources and the continued presence of individuals with communicable diseases in the US and Canada, recent years have seen the US authorize the legalization of severely disabled and undocumented immigrants already residing in the country. Simultaneously, both the United States and Canada have eliminated the majority of entry limitations for immigrants with certain disabilities (Green and Lin, 2002). Concurrently, relaxation has occurred regarding the citizenship requirements in the United States.
Nevertheless, the author indicates that other problems exist. US law continues to permit significant discrimination over the potential public charge exclusion, since consular authorities abroad possess unilateral authority to determine the issuance of immigrant visas. It is important to emphasize that behavior associated with mental handicap, even minor crime, may result in removal from the United States. Individuals with mental impairments have been afforded minimal protections just during the removal process. Similarly, in Canada, families with children who have impairments may be denied legal status due to excessive theoretical criteria on public resources, despite the fact that an individual's handicap may provide grounds for preventing expulsion in some instances. The alleviation of some immigration exclusions in the US and Canada, together with the modification of certain citizenship responsibilities in the United States, indicates a significant although incomplete dismantling of obstacles associated with disability within North American law and culture (Bloemraad and Provine, 2013).
The author indicates that despite the United States and Canada having removed several exclusionary criteria related to disabilities, many potential immigrants with disabilities remain disqualified due to concerns about excessive reliance on social or medical support. The previous categorical exclusions for those labeled as "mental defectives, lunatics, imbeciles, and idiots" were remnants of the early 20th-century eugenics movement, a discredited pseudoscience aimed at enhancing the genetic quality of the population. In 1976, Canada eliminated these antiquated and derogatory phrases from its immigration rules. Nonetheless, it maintained the stipulations for the exclusion of those likely to impose excessive demands on social or health services (Hahn, 1993).
A multitude of disability rights campaigners discuss a social model of disability, asserting that problems often deemed crippling are not inherently such, but rather are a result of societal impositions. The individual using a wheelchair is not always handicapped; rather, it is due to curbs, stairs, tiny entrances, or other physical impediments. Individuals afflicted with alternative ailments have challenges rooted on stereotyping or prevailing societal beliefs. These represent the constraints on the implementation of the social model of disability, while also illuminating the opportunities for transforming social circumstances that enable individuals with disabilities to participate fully in the economy and culture on an equitable basis. For instance, modifying attitudes, constructing ramps, and generally offering accommodations are contemporary reforms that eliminate social and physical impediments to equality (Butler, 2013).
Applying the social model of thinking to immigration law necessitates questioning whether the excessive demand clause and its equivalent under US law, the public charge exclusion, constitute an artificial barrier to the quality of life for individuals with disabilities.
Individuals with disabilities and their families also pay taxes and contribute equally to the societal and economic life. It is important to emphasize that social assistance operates on an average basis, distributing risks and expenses across all individuals of a certain group. Excluding the family of an individual with Down syndrome exacerbates the difficulty encountered by any family with a kid who has a significant impairment (Anderson, 2014).
Nevertheless, the author notes that progress has been achieved regarding the exclusion due to overwhelming demand. The Canadian courts have determined that each case must be assessed on an individual basis. If private resources are used for a family member with a handicap, the grounds for exclusion are inapplicable. Simultaneously, there have been instances when courts have suspended the deportation of immigrants due to problems relating to disabilities that they would endure if returned. Thus, it may be said that Canada does not seem to experience the pervasive issues seen in the United States with the unlawful deportation of individuals with mental disabilities. Due to their incapacity to comprehend the immigration processes and to assert the rights granted to them for remaining in the nation.
Nonetheless, there is little uncertainty that the provision concerning excessive demand on health and social services adversely impacts those who are already experiencing prejudice due to their handicap.
Consequently, the author argues that the recent regulations in the United States concerning naturalization represent a substantial concession for immigrants with impairments seeking citizenship. These measures must also be considered in Canada. The Canadian MPs are contemplating recent measures that have made it more difficult for those with impairments to get citizenship.
Harlan H, H., (1993). “Equality and the Environment: The Interpretation of ‘Reasonable Accommodations’ in the Americans with Disabilities Act”. 17:3 Journal of Rehabilitation Administration 101
Bloemraadand D. M. P, (2013). “Immigrants and Civil Rights in Cross-National Perspective”, 1:1 J Comparative Migration Studies 45 at 53
Mark C Weber, 2004, “Opening the Golden Door: Disability and the Law of Immigration”, 8:1 J Gender, Race & Just 153 at 156.
Churgin, M.J. (2000). “Immigration Internal Decision Making: A View from History”. 78:7 Tex LR 1633 at 1638.
Wilde A. M., (2014). “The Western, Rural Rustbelt: Learning from Local Fiscal Crisis in Oregon” 50:4 Willamette L Rev 465 at 479-80
Green N and Chih Lin A. (2002). Immigration, Washington, DC: Congressional Quarterly Press, at 22
Butler, D.P. (2013). “Poor People Lose: Gideon and the Critique of Rights”, 122:8 Yale LJ 2176 at 2183-85
Case Law
Hilewitz v Canada (Minister of Citizenship & Immigration), 2005 SCC 57 at paras 54-56
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