Excerpted from: Breanne Palmer, The Crossroads: Being Black, Immigrant, and Undocumented in the Era of #Blacklivesmatter, 9 Georgetown Journal of Law & Modern Critical Race Perspectives 99 - 121 (Spring, 2017) (Student Note) (133 Footnotes Omitted)
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As a threshold concept, the following analysis relies on a definition of Black immigration framed in terms of the global African Diaspora. The term “Black immigrant” refers to any member of the African Diaspora in the Western Hemisphere, including Afro-Latinx, Afro-Caribbean, and continental African peoples. The paper will discuss the perils faced by Black immigrants who are located in the U.S. The paper defines “Black Americans” as those members of the African Diaspora with an ancestry of enslavement in the U.S.
Additionally, this paper's fundamental framework rests on the lived reality of intersectionality theory. Coined by Kimberl‚ Crenshaw to describe the structural invisibility of the experiences of Black women in anti-discrimination law, intersectionality theory is applied here to the experiences of Black immigrants, both documented and undocumented. In sum, “Intersectionality is an analytic sensibility, a way of thinking of identity and its relationship to power. Originally articulated on behalf of [B]lack women, the term brought to light the invisibility of many constituents within groups that claim them as members, but often fail to represent them.” The marginalization of people with multiple oppressed-identities--like Black immigrants or undocumented Black people--contributes to their erasure and vulnerability, while distorting analyses aimed at combatting issues that plague the various communities to which people with intersecting identities belong. It is through this lens of intersectionality that the particular discriminations faced by Black immigrants and undocumented people must be viewed.
Black immigrants have reduced visibility in ongoing debates about immigration reform, undocumented activism, and anti-racism. This reduced visibility leads to a lack of protection and advocacy on their behalf: without the inclusion of Black immigrants, efforts to create meaningful immigration and criminal justice reform are *101 impeded. BAJI is partnering with the New York University School of Law Immigrant Rights Clinic to produce an upcoming report titled The State of Black Immigrants. This report is one aspect of BAJI's visibility-raising efforts, and includes statistics about Black immigrants culled from various sources. There are more than 3.8 million Black immigrants currently present in the U.S., with Black immigrants comprising 7.2% of the U.S. foreign-born population. Jamaica and Haiti provide the largest number of Black immigrants present in the U.S., with 665,628 (18% of the Black immigrant population) and 598,000 (16% of the Black immigrant population) immigrants, respectively. Black immigrants account for more than 25% of the Black population in cities such as New York, Boston, and Miami. Immigrants from continental Africa made up 39% of the Black immigrant population in 2014. Of the U.S. Black population, 8.7% is foreign-born. Of the Black immigrant population in the U.S., 575,000 (16%) identify as undocumented or out of status. Of the Black immigrant population, 11% identify as Afro-Latinx. In 2013, 15.8% of legal permanent residents identified as Black. From 2000 to 2013, there was a 137% increase in Black immigrants in the U.S., from 574,000 to 1.4 million. In that same year, 22.9% of refugees identified as Black. These statistics evidence the very real presence of Black immigrants, despite their lack of visibility in the national conversation about migrant rights and immigration justice.
Black immigrants possess higher rates of educational degree attainment than any other immigrant group. Despite this, Black immigrants tend to earn lower wages than other similarly trained immigrant groups and, in 2011, Black immigrants had the highest unemployment rate of any foreign-born group in the U.S. About 813,000 Black children from birth to age ten reside with a Black immigrant parent, *102 and these children account for almost 12% of all young Black children living in the U.S. B. The Legal Intersection of Anti-Immigrant and Anti-Black Sentiment
Despite the statistics above that indicate Black immigrants' increasing presence, the plight of Black immigrants remains “invisible” in the broader criminal and immigration justice narratives. Nearly one in every three non-citizens facing deportation on criminal grounds before the Executive Office for Immigration Review (“EOIR”) is Black. While Black immigrants make up only 7.2% of the non-citizen population in the U.S., they make up 20.3% of immigrants facing deportation on criminal grounds before EOIR. In 2015, nearly one in every three Black immigrants in removal proceedings had a criminal ground of removability. Anti-Black racism plagues Black immigrants in the U.S. Black immigrants are more likely to be held in immigration detention for criminal convictions as compared to the total immigrant population. Immigrants are generally 3.5 times more likely to be detained for an immigration violation than a criminal conviction. However, Black Caribbean immigrants face the opposite: they are twice as likely to be detained due to a criminal conviction than they are to be detained due to an immigration violation. Furthermore, Black immigrants are more likely than immigrants of other races to be deported due to a criminal conviction. In 2013, the Department of Homeland Security (“DHS”) reported 5,509 Black immigrants removed. Of that total, 4,180 (or 76%) Black immigrants were removed for criminal grounds. In comparison, 2,933 immigrants from Asia were removed, with only *103 1,110 (or 38%) removed for criminal grounds. Between 2003 and 2015, while compromising 5.4% of the undocumented immigrant population in the U.S., Black immigrants made up 10.6% of the 2.6 million immigrants involved in removal proceedings and 7.2% of immigrants detained pending those proceedings.
Anti-Black racism exacerbates the vulnerabilities of Black immigrants, and, moreover, the reduced visibility of this diverse population within immigration and criminal reform advocacy impedes efforts to advance meaningful immigration and criminal reform. BAJI has issued a list of organizing demands to combat these vulnerabilities, including: (i) removing convictions, including aggravated felonies and drug offenses, as grounds for deportation and exclusion; (ii) ending the retroactive application of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) and the Antiterrorism and Effective Death Penalty Act (“AEDPA”); (iii) restoring judicial discretion and due process for all individuals coming in contact with the criminal justice and immigration systems; (iv) ending permanent deportation; (v) ending mandatory detention; (vi) ending police-Immigration and Customs Enforcement (“ICE”) collaboration programs; (vii) eliminating the three and ten year bars to reentry to the U.S.; and (viii) providing a “right to counsel” in immigration proceedings for all immigrants. Since the 1997 implementation of the 1996 laws expanding deportation grounds, the U.S. has deported five million people, which is twice the sum of all deportations prior to 1997. Individual researchers support BAJI's findings. Few legal scholars or academics have concentrated on the uniquely distressing ways the criminal justice and immigration systems affect Black immigrants. Dr. Tanya Golash-Boza of the University of California, Merced, specializes in the gender and racial implications of racial profiling, stop and frisk, racialized application of criminal law, mass deportation, and mass detention. Her work focuses on Afro-Caribbean men and the ways in which they navigate the criminal justice and immigration systems. Dr. Golash-Boza linked a 2012 report on stop and frisk in New York City to the mass deportation of Black and Latinx men. She found that 90% of those stopped and frisked were Black and Latinx men, 98% of deportees are sent to Latin America and the Caribbean, and more than 75% of those deportees are male. Dr. Golash-Boza's independent research on Dominican and Jamaican deportees reveals that:
*104 “the vast majority of them were first picked up by police officers and then handed over to immigration authorities. [ ... ] As immigration law enforcement increasingly is being carried out by criminal law enforcement agents, the effects of racial profiling in criminal law enforcement have spillover effects into immigration law enforcement.” This connection echoes BAJI's condemnation of increased collaboration between ICE and local police, which leads to the funneling of Black immigrants into what has been coined the “crimmigration” system. Unlike Central American and Mexican immigrants who are often apprehended by Customs and Border Patrol at the U.S.-Mexico border, Jamaican and Dominican immigrants interact with local law enforcement officers deputized to carry out immigration enforcement. Dr. Golash-Boza explains, “The cooperation of police with ICE [ ... ] leads to an expansion of [the] racially stratified system of punishment into the realm of immigration law enforcement.” Dr. Golash-Boza has also studied the unequal application of immigration laws and deportation proceedings between ethnic groups. She asserts that the disproportionate impact of removal on Black and Latinx immigrants is yet another “manifestation of racial inequality in the U.S.” Her studies of Jamaican deportees reveal a startling trend: from 1996 to 2010, almost 100,000 of the 12 million legal permanent residents in the U.S. were deported. Almost 10% of those deported were Jamaican, yet Jamaicans made up less than 2% of all legal permanent residents during that period. In her conversations with 37 Jamaican deportees, she found that Jamaican legal permanent residents were often deported after being racially profiled by a law enforcement officer. As BAJI's study revealed, Black immigrants in removal proceedings for a criminal conviction are often legal permanent residents residing in the U.S. for 12 years or more. Removal is especially devastating for these immigrants who have established roots in the U.S. There is a contextual-historical aspect to the study of Black immigration. BAJI considers enslaved Africans in the U.S. to be the “first undocumented people to be *105 criminalized.” BAJI frames the Fugitive Slave Act of 1850 as a tool to arrest and “deport” runaway slaves back to their southern plantations. BAJI identifies the “othering” of Black immigrants, highlighting the work of Jamaican author Philip Kretsedemas:
In ‘The Immigration Crucible: Transforming Race, Nation, and the Limits of Law’, Jamaican author Philip Kretsedemas documents the racial profiling of Black immigrants. His research shows that local law enforcement officers arrest and turn them over to immigration officials at a rate that is five times their representation in the undocumented population. Kretsedemas also points out that second generation immigrants of color are very likely to be criminalized. The particular ways racialized criminal laws (and their manifestations in mundane stops and searches and racial profiling) result in devastating immigration consequences for undocumented or status-vulnerable Black people in the U.S. are is evident from the research discussed above. There is a direct link between the migrant rights movement that seeks to gain justice and status for undocumented people and the larger Movement for Black Lives. Intersectional activists have begun to use this link to expand the notions of immigration reform and racial justice.
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Black immigrants live in the crosshairs of American-bred anti-Black racism and anti-immigrant sentiments. Despite an ever-increasing statistical presence in the United States, Black immigrants are excluded from the national discussion about immigration reform, which has falsely been painted as a Latinx-only issue, erasing Black immigrants from narratives about undocumented immigrants. Activists must ensure that this “invisible” population's specific vulnerabilities--being swept into the criminal justice system via anti-Black racism and then subjected to punitive immigration consequences--are taken into account.
BAJI, the only national immigration rights organization focused on Black immigrant needs, is engaging in the work of raising visibility for Black immigrants along with organizations like the UndocuBlack Network. BAJI presents a way forward through its organizing theory of transformational solidarity. Through the practice of transformational solidarity, organizers within the Movement for Black Lives, the migrant rights movement, and the burgeoning Black immigrant rights movement *121 can halt the underserving of Black immigrant and undocumented peoples by legislators and mainstream immigration activists alike. Once migrant rights are viewed through a racial justice lens that takes the particular plight of Black immigrants into account, we can all “get free.”
J.D. 2016, Georgetown University Law Center. 2016, Breanne Palmer.