Immigration and Racial Justice: Enforcing the Borders of Blackness
Karla McKanders
Vanderbilt University, karla.mckanders@vanderbilt.edu
[Page 1139]
Black immigrants are invisible at the intersection of their race and immigration status. Until recently, conversations on border security, unlawful immigration, and national security obscured racially motivated laws seeking to halt the blackening and browning of America. This Article engages with the impact of immigration enforcement at the intersection of anti-Black racism and interrogates how foundational immigration laws that exist outside constitutional norms have rendered Black immigrants invisible. At this intersection, Black immigrants experience a double bind where enforcement of immigration laws and the criminal legal system have a disparate impact resulting in disproportionate incarceration and deportation.
First, the Article examines how the foundational immigration laws—limiting citizenship to white males—and the failure of immigration enforcement to adhere to constitutional norms reinforce racial hierarchies. Part II of the Article examines how anti-Black racism and lack of constitutional protections within the immigration system lead to disproportionate immigration enforcement against Black immigrants. This part also details how the legislative reforms of 1996, coupled with different executive enforcement policies, have had a disproportionate impact on the deportation of Black immigrants. Third, in line with the goal of the Georgia State University Law Review's 2021 Symposium—examining solutions—the Article examines the concept of transformational solidarity as a
[Page 1140]
method to address the failure of immigration laws to adhere to constitutional norms, creating the need for reform. The intersections between how both the grassroots abolition movements within criminal and immigration law enforcement—"defunding the police" with "abolishing ICE"—provide a starting point for addressing the disproportionate impact of immigration laws and enforcement policies on Black immigrants.
[Page 1141]
Introduction..............................................................................1142
I. Not Citizens, Not Immigrants: The Invisibility of Black Immigrants............................................................................1150
II. Impact of Anti-Black Racism on the Invisibility of Black Immigrants............................................................................1159
III. Transformational Solidarity..........................................1170
Conclusion.................................................................................1175
[Page 1142]
On October 7, 2020, in Boston, Immigration and Customs Enforcement (ICE) with the Department of Homeland Security, stopped Ben Apreala, a twenty-nine-year-old African American man, while he was jogging.1 Two unmarked SUVs with tinted windows approached, one blocking the sidewalk in front of him and the other pulling up next to him along the street.2 The officers had on tactical vests and masks. At least one officer was armed.3
The ICE officers began to question him: "They asked me what are you doing around here, where are you from, what are your whereabouts, why are you jogging down here . . . ."4 Upon initial contact, Apreala believed that the officers were police officers until he saw one officer with an ICE badge: "When I saw the [ICE] badge and asked them if they were ICE officers and they said yes, and I explained that I wasn't an immigrant, I'm born and raised in Boston and that I have no idea what they're stopping me for, they said that immigration isn't the only thing that they investigate and proceeded to question me . . . ."5
He pulled out his telephone and began to record. Through the camera, we see him ask the ICE officers if he was free to leave.6 In response, another officer asked to see his arms to see if he had any
[Page 1143]
tattoos.7 He again asked if he was free to leave and the ICE officers acquiesced.8
Apreala was racially profiled. ICE later released a statement disputing Apreala's account.9 In the statement ICE indicated that they were looking for a previously deported Haitian national with multiple criminal convictions and pending drug charges.10 In profiling Apreala, ICE stated he "matched their subject's description."11
Apreala's interaction with ICE occurred in the wake of the murder of Ahmaud Arbery, who, while jogging, was chased and murdered by armed white residents of a south Georgia neighborhood.12 Around the same time, police racially profiled Mathias Ometu of San Antonio, Texas, and Joseph Griffin of Deltona, Florida, while they were jogging.13 They both were handcuffed and detained.14 These incidents demonstrate the normalcy of racial profiling in Black communities and the continuous violence of law enforcement against Black bodies.
Apreala's interaction with ICE demonstrates the prevalence of racial profiling as a law enforcement tactic.15 Within immigration enforcement, racial profiling has been normalized as an acceptable law enforcement practice.16 Although racial profiling is a tactic generally associated with criminal policing, this incident
[Page 1144]
demonstrates the intersection between racial justice and immigration enforcement. It highlights an issue not often discussed amongst immigration scholars: how immigrants of African descent are racialized as Black upon entering the United States. The Black Alliance for Just Immigration states: "[I]f being black makes you a police target, then being black and undocumented in a poor neighborhood will make you vulnerable to surveillance, punishment, and exile."17
The Black Alliance for Just Immigration and the Pew Research center estimate that there are between 4.2 to 5 million foreign-born Black individuals living in the United States.18 In 2014, according to the U.S. Department of Homeland Security yearbook, "232,290 Black immigrants in the [United states] obtained lawful permanent resident (LPR) status."19 They represented 23% of all individuals who became LPRs in 2014.20 This is important because this Article focuses on the prison-to-deportation pipeline, which disproportionately impacts Black noncitizens who have obtained LPR status. The Black Alliance for Just Immigration's estimate includes both noncitizens and Black immigrants who have been naturalized.21 Further, "[b]etween 2000 and 2013, about three-in-ten (28%) Sub-Saharan African immigrants entered as refugees or asylees, compared to only 5% for Caribbean immigrants and 13% for the overall immigrant population."22 In 2014, Black immigrants constituted 25% of the total 69,975 refugees who arrived in the
[Page 1145]
United States.23 In addition, although "Black immigrants accounted for only 3.1% of the Black population in the [United States] in 1980, Black immigrants now account for nearly 10% of the nation's Black population."24
Statistics from the Department of Homeland Security demonstrate that at the intersection of immigration and race, immigrants of African descent are more likely to be detained and deported than other immigrants.25 Between 2003 and 2015, Black immigrants comprised only 5.4% of the unauthorized population in the United States and 7.2% of the total noncitizen population but made up 10.6% of all immigrants in removal proceedings.26
Defining which populations constitute Black immigrants raises tensions of essentialism and reductive identities, which are hallmarks of systemic racism in the United States. Black immigrants come from different countries, are from different nationalities and cultures, and speak different languages and dialects. When they enter the United States, race—Blackness—becomes a primary identifier.27 Defining who fits within the social construct of who is a Black immigrant displays the limits imposed within a racialized system where race is socially constructed.
Legal scholarship has analyzed the racialized impact of the intersection between criminal law and immigration (crimmigration); however, the impact on immigrants who are racialized as Black is
[Page 1146]
limited.28 Legal scholars who study crimmigration have long theorized the connections between the ways in which both law enforcement systems adversely impact immigrants, with a focus on Latino immigrants.29 Legal scholarship has not thoroughly theorized the implications of anti-Black racism, criminalization, immigration enforcement, and the exclusion of immigrants from constitutional protections on Black immigrants.30
My scholarship has examined how immigration laws have reified race by legislating cultural norms that reinforce racial divisions and hierarchy in the United States.31 My scholarship has also focused on comparing Jim Crow laws and the Fugitive Slave Act's enforcement
[Page 1147]
system to existing immigration enforcement systems, focusing on historical comparisons but not specifically engaging in an analysis of the impact of present-day immigration laws on Black immigrants.32
Immigration scholar Kevin Johnson has given the most comprehensive treatment of the issue within legal scholarship, addressing the impact of immigration enforcement and racial profiling on both Latinx and Black immigrants.33 In his 2003 article The Case for African American and Latina/o Cooperation in Challenging Racial Profiling in Law Enforcement, he argued that "judicially-sanctioned race profiling" is a core element of immigration enforcement policies.34 Within this system, he asserts that immigrants of African descent are presumed not to have the proper documentation to enter and are often subjected to being strip searched, shackled, detained, or having their immigration status unlawfully investigated.35
Johnson has explored the connection between over-policing in minority communities and the likelihood that criminal noncitizens...
