Since taking office, President Biden has distanced himself from the previous administration by highlighting racial equity, including in his approach to appointing agency officials and a new Supreme Court justice.
While representation is a critical component of racial equity, deep systems change is necessary 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 expel Black people seeking safety in the U.S.
America’s immigration system was designed, from its inception, to keep Black immigrants out. Today’s immigration system—starting with the asylum process and detention centers and ending in immigration courtrooms—continues to make use of historical mechanisms for denying Black people entry to this country.
Over 147 countries, including the U.S., recognize the right to asylum, which guarantees protection to those fleeing persecution on account of their race, religion, nationality, or other protected grounds. But to obtain asylum, a person must first reach a U.S. border—a notorious site of racialized inclusion and exclusion.
This foundational requirement—that a person physically knock on America’s door—was the first “line of defense” the U.S. used to keep Black migrants out. In the 1980s, the U.S. deployed the Coast Guard to block 23,000 Haitians fleeing Jean-Claude Duvalier’s repressive regime from reaching our borders. Of those 23,000 people, eight were granted asylum.
In the 1990s, the U.S. again intercepted Haitian refugees. Of those 37,000 people, just 300—less than 1%—were granted asylum. After campaign promises of more compassionate immigration policies, President Biden forcibly expelled at least 10,000 Haitians from our Southern border without due process; none were permitted to seek asylum.
Today, the U.S. continues to create and support policies intended to deter and push back Black migrants, preventing them from touching U.S. soil through a system of racialized border exclusion. The Biden administration continues to employ a deeply flawed and racist metering system, a legacy of the Trump administration that creates greater obstacles for Black migrants, requiring them to submit more documentation than others to be added to the list for entry.
Black migrants suffer from disparate credibility findings during credible-fear and reasonable-fear proceedings, and blanket denials for humanitarian parole and Title 42 exemptions. The problem is so entrenched that a hundred Democratic legislators from both Congressional houses have submitted a letter to President Biden voicing concerns about the administration’s treatment of Black migrants.
Immigration Detention Policies Are Oppressive
Immigration detention policies further oppress Black migrants. In the 1980s, our system of mass detention was created to keep Central Americans and Haitians out, giving rise to the criminalization of asylum and the modern system of immigration detention.
In the 1990s, the U.S. government held intercepted Haitian refugees in cages for a year at an “HIV prison camp” at Guantanamo Bay, Cuba. Now, Immigration and Customs Enforcement detains approximately 20,000 immigrants each day in a vast network of federal detention centers, private prisons, state prisons, and jails.
Because police disproportionately arrest Black individuals, juries disproportionately convict them, and judges levy disproportionate sentences against them, Black immigrants are disproportionately funneled into immigrant detention. Not only are they detained for longer periods of time, they are six times more likely to be subjected to solitary confinement.
And once Black immigrants enter immigration courtrooms, they face judges with crushing caseloads and about four hours to make a life-or-death decision—the precise conditions in which racial bias thrives. Implicit bias and institutional shortcomings inevitably impact how an immigration judge perceives an applicant’s credibility.
Because of bias and institutional racism, Black people historically have been perceived as dishonest and untrustworthy. So it is no surprise that immigration judges are more likely to find Black immigrants less credible than those of other races.
Failed Policies Need Correction
There is much that this administration must do to correct the long history of failed immigration policy. First, Biden must push Congress to eliminate the harsh criminal bars to asylum—bars created in the late 1990s, which have steadily expanded since then. He must advocate for an end to detention of immigrants—especially mandatory detention—which can result in the imprisonment of immigrants for years after they have served their criminal sentences.
And to combat discrimination in immigration courts, he can require that immigration judges participate in increased anti-bias training; he can hire with greater racial diversity; and he can create work conditions conducive to thoughtful, merits-based decision-making—not “rocket dockets” or expedited legal proceedings.
Racist policies that restrict the movement of Black people 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 enact policies to prevent them.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Tsion Gurmu is the legal manager of the Black Alliance for Just Immigration, the first national immigrant rights organization for people of African descent. Gurmu is also the founder and director of the Queer Black immigrant project (QBip), a lawyering 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 Appellate Clinic, through which she represents asylum seekers before the Board of Immigration Appeals and the U.S. circuit courts.
Patricia Stottlemyer is a human rights lawyer and advocate working to hold the U.S. accountable to its human rights obligations. She currently serves as the senior domestic policy adviser at Oxfam America. She previously represented asylum seekers in federal lawsuits challenging the anti-asylum policies of the Trump administration.