Since taking office, President Biden has distanced himself from the previous administration by emphasizing racial equity, including in his approach to appointing agency officials and a new justice to the Supreme Court.
While representation is a critical component of racial equity, profound systems change is needed to achieve meaningful transformation. Biden’s approach has notably failed to address the systemic racism inherent in our immigration system, which his administration has weaponized to deport black people seeking safety in the United States.
The US immigration system was designed, from its inception, to keep black immigrants out. Today’s immigration system – beginning with the asylum process and detention centers and ending in immigration courtrooms – continues to use historical mechanisms to deny entry to blacks in this country.
More than 147 countries, including the United States, recognize the right of asylum, which guarantees protection to those fleeing persecution because of their race, religion, nationality or other protected grounds. But to gain asylum, a person must first reach a US border, a notorious site of racial inclusion and exclusion.
This basic requirement – that someone physically knock on America’s door – was the first “line of defense” used by the United States to keep black migrants out. In the 1980s, the United States deployed the Coast Guard to prevent 23,000 Haitians fleeing the repressive regime of Jean-Claude Duvalier from reaching our borders. Of these 23,000 people, eight have been granted asylum.
In the 1990s, the United States again intercepted Haitian refugees. Of these 37,000 people, only 300, or less than 1%, have been granted asylum. After campaign promises of more compassionate immigration policies, President Biden forcibly removed at least 10,000 Haitians from our southern border without due process; none were allowed to seek asylum.
Today, the United States continues to create and support policies aimed at deterring and repelling black migrants, preventing them from touching American soil through a system of racial exclusion of borders. The Biden administration continues to employ a deeply flawed and racist counting system, a legacy of the Trump administration that creates greater barriers for black migrants, requiring them to submit more documents than others to be added to the entry list.
Black migrants suffer from disparate credibility scores in credible apprehension and reasonable apprehension proceedings, and blanket denials of humanitarian parole and Title 42 exemptions. The problem is so entrenched that about 100 Democratic lawmakers from both Houses of Congress submitted a letter to President Biden expressing concern about the administration’s treatment of black migrants.
Immigration detention policies are oppressive
Immigration detention policies further oppress black migrants. In the 1980s, our mass detention system was created to keep Central Americans and Haitians out, giving rise to the criminalization of asylum and the modern immigration detention system.
In the 1990s, the US government held intercepted Haitian refugees in cages for a year at an “HIV prison camp” in Guantanamo Bay, Cuba. Today, Immigration and Customs Enforcement detains approximately 20,000 immigrants every day in an extensive network of federal detention centers, private prisons, state prisons, and jails.
Because police disproportionately arrest black people, juries disproportionately convict them, and judges give them disproportionate sentences, black immigrants are disproportionately directed into immigration detention. Not only are they detained for longer periods of time, but they are six times more likely to be held in solitary confinement.
And once black immigrants enter immigration courtrooms, they face judges with overwhelming workloads. and about four hours to make a life or death decision – the precise conditions under which racial prejudice thrives. Implicit biases and institutional shortcomings inevitably impact how an immigration judge views an applicant’s credibility.
Due to prejudice and institutional racism, black people have always been seen as dishonest and untrustworthy. It is therefore not surprising that immigration judges are more likely to find black immigrants less credible than those of other races.
Faulty policies need to be fixed
There is a lot this administration needs to do to correct the long history of failed immigration policy. First, Biden must push Congress to eliminate harsh criminal asylum bans — bans created in the late 1990s that have grown steadily since then. He must advocate for an end to immigration detention — especially mandatory detention — which can result in immigrants being imprisoned for years after they have served their criminal sentence.
And to combat discrimination in immigration courts, it can require immigration judges to participate in increased anti-bias training; it can hire with greater racial diversity; and it can create working conditions conducive to thoughtful, merit-based decision-making, not “speed cases” or expedited court proceedings.
Racist policies that restrict the movement of black and other people of color and subject asylum seekers to mistreatment and detention while their legal claims are processed, disproportionately harm black migrants. It is time to recognize these injustices and adopt policies to prevent them.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Tsion Gurmu is the legal director of the Black Alliance for Just Immigration, the first national immigrant advocacy organization for people of African descent. Gurmu is also the founder and director of the Queer Black Immigrant Project (QBip), a lawyers’ initiative that provides comprehensive legal representation to LGBTQIA+ black immigrants.
Estelle M. McKee is a clinical professor of law at Cornell Law School, where she co-founded and directs the Asylum and Convention Against Torture Appeals Clinic, through which she represents asylum seekers before the Board of Immigration Appeals and the U.S. Short circuits.
Patricia Stottlemyer is a lawyer and human rights advocate who works to hold the United States accountable to its human rights obligations. She is currently Senior Domestic Policy Advisor at Oxfam America. She previously represented asylum seekers in federal lawsuits challenging the Trump administration’s anti-asylum policies.