Episode 3

Anti-Blackness and the Criminalization of Immigrants – Part One

In part one, host Sarah Hamilton-Jiang meets with immigration Professor Alina Das, co-director of NYU School of Law’s Immigrant Rights Clinic; Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration; and Historian and Associate Professor Carl Lindskoog of Raritan Valley Community College  to consider the history of anti-Blackness and criminalization in immigration law. Through this recounting of history, the episode explores the role of anti-Blackness in the development of our modern-day immigration carceral system.

Transcript

Nana Gyamfi: Well, Black immigrants are uniquely criminalized, mainly because of their Blackness. And I think it's always important when we talk about the criminalization of Black immigrants to center it in the narrative that is part of the root of this country—that to be white is to be human and therefore to be free, and to be Black is to be less than human.

[MUSIC]

Sarah Hamilton-Jiang: I'm Sarah Hamilton-Jiang and you're listening to episode three of The Other Side of the Water: Immigration, and the Promise of Racial Justice. In this six-part series, we're exploring the legacy of the 1985 US Supreme court case, Jean v. Nelson. Today's episode is one of two episodes exploring anti-Blackness and the criminalization of immigrants of color. We're grateful to have three incredible guests to help us explore these issues in both of our episodes. Nana Gyamfi, the Executive Director of the Black Alliance for Just Immigration or BAJI, Professor Alina Das, co-director of New York University School of Law’s Immigrant Rights Clinic, and Associate Professor and historian, Carl Lindskoog.

National quotas, restrictive citizenship laws, and laws explicitly excluding immigrants of color are just some of the well-known historical examples that demonstrate how immigration law has been used as a tool of racial engineering. But too often, we fail to acknowledge the anti-Black laws that lie at the root of the United States immigration system. So today we'll be diving into history to understand how anti-Blackness and criminalization are intimately tied to the treatment of immigrants of color. We'll then situate Jean v. Nelson within this history, and look at its role as a turning point, leading to today's punitive and inhumane legal treatment of immigrants of color.

According to a report by the Black Alliance for Just Immigration and NYU School of Law’s Immigrant Rights Clinic, Black immigrants comprise approximately 8.7% of the total foreign-born population in the United States. 

The term Black immigrants is broad and includes foreign-born Black individuals from predominantly Black countries, as well as countries with smaller Black populations. It includes naturalized United States citizens as well as undocumented individuals. And it also includes those who are frequently marginalized within this space, such as LGBTQ+ immigrants. But regardless of their home country, immigration status or intersecting identity, upon arrival in the United States, Black immigrants face the same racial discrimination experienced by Black people who are born in the United States. Nana Gyamfi of the Black Alliance for Just Immigration explained that this is because of the politics of Blackness in America.

Nana Gyamfi: Black is a political racial category, not so much a phenotypical or genotypical. You don't have to limit yourself to what the US limits you to, but understand that when you're being treated by, in the system, you're being treated as a Black person and so whether you opt in or not, you're in it.

Sarah Hamilton-Jiang: Ultimately then, Black immigrants suffer the dual consequences of anti-Black racism and the criminalization of immigrants. 

Nana Gyamfi: This is just based upon being a Black immigrant. And so even Black immigrants who are coming from Britain, for example, who are our members, complained about the treatment that they received flying in from Britain versus their white, British counterparts. Britain, there’s no visa requirement you know what I mean? There's nothing that should make this be a difference, but we find that that difference is there based upon Blackness. And so criminalization, it's a clear issue. 

Sarah Hamilton-Jiang: Let's take a look at a few statistics that demonstrate this nuanced intersection. If you are a Black immigrant with a criminal conviction, you have a 76% chance of being deported compared to 45% of the immigrant population overall. If you're Caribbean, it goes up to 83%.

Nana Gyamfi: Within the detention system, who is being held the longest? Black immigrants. Which asylum seekers are finding that they're there for a year, you know, a year at a time? Black immigrants. Who has the highest bail bonds? Black immigrants. Black immigrants are six times more likely to be held in solitary confinement within the detention deportation system. So on every measure that you look at, when you're looking at the indices of criminalization you find that Black immigrants are targeted and are impacted in ways that other immigrants, including immigrants of color are not.

Sarah Hamilton-Jiang: Nana referred to an example that many of us may be familiar with— the 2019 arrest and detention of rapper 21 Savage.

Nana Gyamfi: So he's pulled over by a sheriff. The sheriff that's pulling him over is not thinking of him as a Black immigrant. The sheriff that's pulling him over is thinking of him as a Black person and that is enough for him to get the pullover because in Georgia they have these laws under 287G, they have these rules that allow ICE and the police to work hand in hand. He was taken into custody, not by the sheriffs, but by ICE. And again, that's exactly how it happens. Most of us are picked up on the criminal sanctions end and then transferred to the detention deportation end. And that's when most of us learn that 21 is, in fact, an undocumented person who came here with his parents when he was younger. 

I think the interesting twists that people don't think about often is that he was actually a victim of crime and he had already filed at the time of his arrest or at the time they picked him up. He had already filed to be able to get protections as a victim of crime, which is allowed in this country. And in spite of that, he was not treated as a victim of crime. He was treated as a crime perpetuator. 

It took half a million signatures on a petition, which we, working along with Black Lives Matter, UndocuBlack and, and others. You know, got half a million signatures. Color of Change helped as well and dropped those at the ICE office in Atlanta. And people criticized us. There were some people who criticized us. They said, “wow, why are you spending all this time on him? Why are you giving him attention? He's going to be okay? He's got money. He's famous.” But no, he as a Black immigrant needed the same assistance as the most, you know, non-famous of us because he's still Black and he still faced all of the anti-Blackness and criminalization that the system has for Black people.

Sarah Hamilton-Jiang: So, how did anti-Blackness become central to the criminalization of Black immigrants and other immigrants of color in today's immigration system? Well, it boils down to an uncomfortable American truth summarized by Nana.

Nana Gyamfi: Well, Black immigrants are uniquely criminalized, mainly because of their Blackness. And I think it's always important when we talk about the criminalization of Black immigrants to center it in the narrative that is part of the root of this country that to be white is to be human and therefore to be free and to be Black is to be less than human.

Sarah Hamilton-Jiang: Drawing from the research in her new book, titled No Justice in the Shadows, Professor Alina Das highlighted a few key moments in early US legal history that demonstrate the origins of anti-Blackness in immigration. Starting in 1790 and taking us through the 1800s, she described how Black people were deliberately excluded from the first laws of naturalization and in the application of the concept of birthright citizenship. She also explained how the federal government's first attempts to restrict migration occurred in the interior of the United States and targeted native indigenous peoples through the Indian Removal Act of 1830 and targeted Black people through the Fugitive Slave Laws of 1793 and 1850.

Alina Das: We see what becomes later the foundation of how we treat immigrants today. We see people being forced to carry around their papers, Black people being forced to prove their freedom in order to move. And even then, still be at the mercy of white mobs who may think that they don't have the right paperwork, that think that they're entitled to send people back to where they came from. And those kinds of laws that Congress passed, particularly in the 1800s, those later become the foundation for federal immigration law today.

Sarah Hamilton-Jiang: Black people in the 1800s continued to experience criminalization under the law. For example, the infamous Black Codes were enacted to regulate Black people and criminalize basic everyday behavior, such as assembling in large groups, vagrancy, loitering, and unemployment. So when Chinese immigrants began to immigrate to California in the 1850s, it was no surprise that many of the white residents turned on the Chinese newcomers and adopted the language of anti-Blackness to legally criminalize the actions of immigrants. Alina described one such example exemplified in the 1854 California case of People v. Hall.

Alina Das: There was an incident where a white man killed a Chinese miner in California and the California courts ruled that Chinese people could not testify against the white defendant and they did so by relying on a law where they equated—what the law referred to as Negroes, being unable to testify against white people in court. The court said that, you know, Black is the opposite of white and that Chinese people would therefore be in that category of Blackness. Because they certainly weren't white and they were a member of this kind of denigrated tribe. And they used openly racist language, which we see throughout court opinions.

That makes it very clear that in the hierarchy where white people are supreme and Black people and indigenous people have the least amount of rights, that immigrants, depending on the color of their skin, depending on how whiteness was being defined at the time, would be placed on that hierarchy. And so from the very beginning, the rights of immigrants have always been intimately tied to the rights of Black people and indigenous people, including those who are born in the United States. The rights and the oppression that people face are due to the oppression that Black people and indigenous people have always faced historically in this country.

Sarah Hamilton-Jiang: Beginning in 1875, Chinese immigrants began to be the targets of restrictive immigration laws that used the language of criminality to exclude and racialize their very existence. This well-known period of racial exclusion mirrored the experiences of Black people who had long sought the right to live as citizens, free from the racialized markers of enslavement and criminality.

Alina Das: You see this kind of white supremacist thread that treats them as undesirable and then specifically as dangerous and uses this kind of sense of public safety as a justification for all manner of very oppressive laws.

Sarah Hamilton-Jiang: And this racist thread continued. Specifically, the relics of anti-Blackness and criminality remained prevalent in the development of immigration law and policy.

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Sarah Hamilton-Jiang: Historian Carl Lindskoog continued to explore this thread of anti-Blackness and criminalization in immigration by taking us to the 1970s. In his book, Detain and Punish: Haitian Refugees and the Rise of the World's Largest Immigration Detention System, he explores the change in asylum law following the rise of Haitian immigrants seeking asylum in the 1970s and the 1980s.

Carl Lindskoog: You know, there wasn't really an asylum policy in place in the United States until about the mid-1970s. I would say that really, asylum policy happened after large numbers of asylum seekers started seeking asylum in the United States. And that really didn't happen until the early 1970s. It started with the Haitians in the 1970s and then really got kicked off in the 1980s. You know, it was sort of forged in the struggle between the government and asylum seekers—the government often trying to keep them out.

Sarah Hamilton-Jiang: The arrival of Black Haitians came at a time when the racial demographics in the United States were beginning to change following major reforms in immigration law.

Carl Lindskoog: There's a white reaction to that and at the same time, there's this national backlash really against the project of the Black freedom struggle and the other liberation movements of the 1960s and seventies. That backlash was already beginning in the 1970s. And so, when Haitians who are fleeing the Duvalier dictatorship—that was a US backed anticommunist dictatorship in Haiti, when they're fleeing and starting to come to South Florida, there's this racist and xenophobic reaction. The Floridians, many of them don't want Haitians there. They start to put pressure on their local and state officials and in turn the Florida officials start to reach out to the federal government saying, look you guys need to do something to stop this influx of poor, Black migrants.

Sarah Hamilton-Jiang: And the result was a formal detention policy instituted against Haitian immigrants seeking asylum.

Carl Lindskoog: So it's a combination of geopolitics and racism that leads to the United States’ decision basically to apply a blanket denial of asylum to all the Haitian boat people who start coming to the United States in the 1970s.

And as part of that, they impose a punishing set of policies that are designed to try to deter Haitians from coming and to keep those Haitians who have come out of the general population. And part of that set of policies was to put them in detention facilities, put them in local jails. Really from their first arrival and escalating throughout the 1970s, Haitian detention was part of an effort to stem the unwanted arrival of Haitian asylum seekers.

Sarah Hamilton-Jiang: As we explored in our last episode, litigation was one avenue used to challenge the racial injustice faced by Haitian immigrants. Carl described the case of Haitian Refugee Center v. Civiletti, as the first major case to strike down the government's Haitian detention policy.

Carl Lindskoog: So, in a way it's a precursor to Jean v. Nelson. And in that case, Judge James Lawrence King ruled that the government was discriminating against Haitians in detaining them, singling them out for detention. And he very explicitly in his ruling says this isn't just national origin discrimination, this is racism. This is the first significant increase of Black asylum seekers here, they're the only ones you're treating in this way, and this is racism at play. So, he overturns the government's Haitian program, which included a Haitian detention policy, and he orders them free. 

Now the government's Carter administration in this case did what it and other successive administrations would continue to do, which is to find ways to circumvent that ruling and keep the detention and other exclusionary policies in place. But that Civiletti ruling was very significant because it was the first major one to strike down the government's Haitian detention policy. And it explicitly identified racism at the heart of the government’s treatment of Haitian asylum seekers.

Sarah Hamilton-Jiang: But it wasn't just litigation. Soon a social movement began, seeking to stop racial injustice and the racial discrimination of Black Haitian asylees.

Carl Lindskoog: Now the next step in the coalition, which was this broad coalition of grassroots activists, community activists, along with lawyers and sometimes political allies in the Congressional Black Caucus and other organizations, human rights organizations, civil rights organizations, like the NAACP, they, already in the seventies, the labor movement and church groups were involved—already in the seventies and just continuing in the nineties, they were instrumental in the work of Jean v. Nelson. They're building this coalition against anti-Haitian racism and against the exclusionary policies of the US government.

Sarah Hamilton-Jiang: Resistance to the treatment of Haitian immigrants seeking asylum was widespread and even took place within jails and detention facilities.

Carl Lindskoog: One striking moment, I think it's 1981, there's a massive hunger strike going on at the Krome detention center in South Florida, the Florida Everglades in Miami and there's a massive protest of allies outside and they actually break into the detention facility into Krome and they free a hundred or more people from detention. And that's sort of symbolic of what was going on inside, and outside in the streets, and in the halls of Congress, as part of this mass movement that's really building in the 1980s.

Sarah Hamilton-Jiang: And the social movement even extended across international borders, especially after the government introduced an interdiction policy. Again, directed towards Haitian immigrants seeking asylum.

Carl Lindskoog: Interdiction was a practice whereby US coast guard cutters would intercept boats of Haitian asylum secrets before they could even reach American shores and return them. And so, a lot of what the government is doing to Haitians and then Central Americans after this does garner international attention and sometimes outrage. 

And then one thing that's really interesting is that there's also an international network of activists. So for example, Haitian exiles throughout the Americas were organizing together to try to bring democracy to Haiti, but also to protest the treatment of Haitian asylum seekers to the United States. There's this moment in 1980 where they all come together in Mexico City for an international conference in solidarity with Haiti and Haitian refugees and it sort of symbolizes how these are activist networks that often stretch beyond national boundaries.

Sarah Hamilton-Jiang: And all this culminated in Jean v. Nelson. Strikingly, it gave birth to a new era of criminalizing immigrants that marked the beginning of our modern immigration detention system.

Carl Lindskoog: And so, Jean v. Nelson grows out of that rich history of resistance that placed legal resistance at the center of it. And it was a challenge to the government's Haitian detention policy and its broader campaign to exclude Haitians. 

In terms of the history of immigration detention, it's a bittersweet moment because on the one hand it’s an example of the successful collaboration in solidarity between the streets and the courtroom. On the other hand, we can see now that it was an opportunity for the Reagan administration to expand the detention system because they had charged that the detention program violated the Administrative Procedures Act (APA) and that it was discriminatory against Haitians. 

And so, the Reagan administration turns around and it, you know, files all the paperwork and does what it needs according to the APA. But then it also says, okay, to preemptively guard against charges of discrimination and racism in our treatment of Haitians, we're going to broaden this and say, now all excludable aliens can be detained. And that's really the sort of formal step between the government's Haitian detention program and its blanket universal detention program. 

From 1982 when it made that change onward, that's the sort of beginning of our modern immigration detention system.

Sarah Hamilton-Jiang: As the detention system began to evolve, it began to ensnare other immigrants of color.

Carl Lindskoog: So initially from 1981 to 1982, the policy goes from a Haitian detention policy to a blanket detention policy for excludable aliens. At the same time—actually, even before they make it a universal detention policy, Central American asylum seekers, especially along the US- Mexico border are already going into American detention facilities. Migration detention becomes throughout the 1980s, a part of the broader expansion of the carceral state.

Sarah Hamilton-Jiang: And these policies only got worse with time. In the 1990s, Haitians were again the target of harsh and inhumane immigration policies.

Carl Lindskoog: In the early 1990s, Haitians were fleeing a bloody coup in their home country And some of them are coming to the United States. But much like it happened in the previous decade, they were excluded, they were sometimes sent back, sometimes to their death in Haiti. And they were also placed in a new detention facility at Guantanamo Bay, Cuba. 

Alina Das: You eventually see a program that was embraced by the federal government to stop people from even reaching the shore by intervening at sea and bringing Haitian refugees to Guantanamo. The beginnings of, you know the Guantanamo prisons that we now have seen much more vividly in the news and the 9/11 terrorism era of incarceration, that began because of Haitian refugees. This idea that, you know, they were deemed to be criminals, disease-ridden, and then held in these atrocious detention camps at Guantanamo. It was a horrific response to a humanitarian crisis. 

And that level of anti-Blackness, the approach that the United States had because the refugees seeking our help were Black. And so, it was really the government's response to Haitian refugees that is what brought us our modern immigration prison system.

Sarah Hamilton-Jiang: Amidst the shocking treatment of Haitians at Guantanamo Bay, another social movement soon developed.

Carl Lindskoog: But that generated even more than this growing movement in the 1980s, this vibrant international movement that brought together civil rights organizations. Many, many African Americans were involved in this Haitian solidarity movement and I'm sure they did it out of sympathy and solidarity but they could also recognize that the government's exclusion and sometimes sending Haitians to their death had everything to do with them because they were the victims of racism here. Haitians were the victims of international racism or a racial empire and so, they stood alongside and stood up with Haitians to fight to ensure that Haitian asylum seekers could safely be brought in the United States and that they could be freed from Guantanamo Bay and other detention facilities. And they won some of those battles. It was definitely the height of a movement that linked Haitian solidarity with anti-racist struggles here in the United States.

Sarah Hamilton-Jiang: Years of targeting economically marginalized, Black African Americans, and other people of color through efforts such as the war on drugs meant that Black immigrants were uniquely criminalized, swept up by the new Jim Crow of mass incarceration, a term coined by legal scholar, Michelle Alexander.

At the same time, the immigration system continued to evolve. Increasingly intersecting with the criminal legal system. And as all immigration lawyers know, in 1996 The Illegal Immigration Reform and Immigrant Responsibility Act and The Antiterrorism and Effective Death Penalty Act drastically transformed the immigration system and formalized tools of criminalization such as mandatory detention and expanded grounds for deportation. And for those with criminal convictions, the immigration system soon transformed into what Alina calls a “crime-base deportation system.”

Alina Das: There hasn't really been a fundamental change to how immigration law works since 1996. And now thanks to other programming that has been adopted by policy makers, virtually any contact with the criminal legal system can result in deportation for someone who is not a US citizen. And that expansion of the intersection between immigration and criminal law is a reason why many people of color are targeted for deportation today. And in particular why Black immigrants remain overrepresented and disproportionately affected.

Sarah Hamilton-Jiang: Carl concluded this important history with a recognition of how things also changed after 9/11 and significantly contributed to our system of mass incarceration. Today the United States has the highest incarceration rates in the world.

Carl Lindskoog: After the terrorist attacks of September 11, 2001, the detention system continues to expand and now it's done so often on the grounds of national security. But the basic premise that had been established in the prior two decades of guarding public safety against “the menace”— whether it's “the menace of Black Americans” or “the menace of Black asylum seekers and immigrants” was the same, except now it's in a terrorism and national security framework. And so that's really the way that the system mutated and grew from the early 1980s through our current moment.

Sarah Hamilton-Jiang: Since this time, the criminalization of immigrants of color has continued and so has support for increasing the chasm between the so-called “good” immigrant versus the so-called “bad” criminal immigrants.

Alina Das: So, there's been a long-standing divide in how we talk about immigrants in the United States and many people in the community refer to this as the “good versus bad immigrant” myth. We generally talk about the “good immigrants” as the immigrant who works hard, contributes to America, who deserves to be here and at the same time, either share the idea or allow the idea to exist that there are “bad immigrants,” immigrants who are harmful to America, who don’t deserve to be here. And the good versus bad immigrant myth is something that is used by every administration.  

Sarah Hamilton-Jiang: For example, the Obama administration deported more immigrants than any other administration. And in a speech in 2014, he referred to the need to remove so-called “felons, not families.”

Alina Das: When he used those words, he tapped into this “good versus bad immigrant” myth. He tapped into this idea that there are people who are wholly bad and people who are wholly good, which ignores the fact that of course, people who have felony convictions can also have families, children who have had a run in with the law are still children. There are people who have justified the existence of this deportation machine because of the existence of a criminal record but ignore the fact that that criminal record is probably a reflection of the person's environment, where they live. And the fact that laws have already failed that person.

Sarah Hamilton-Jiang: This long legacy of anti-Blackness and criminalization laid the foundation for the Trump administration's cruel and racist response to Black immigrants and other immigrants of color. 

Join us for part two later on this week where we'll look at the challenges that Black immigrants have faced under the Trump administration. In addition, as we think about this year's renewed focus on the movement for Black lives, we'll look at how legal actors can work with activists and organizers to address the criminalization of Black immigrants today. 

But for now, we'd like to thank our guests, Nana Gyamfi, Alina Das and Carl Lindskoog for their incredible work and their valuable insights in this episode. 

This episode was produced by Keecee DeVenny of the NAACP Legal Defense Fund and edited by Zach McNees. This episode features music by the Haitian band Lakou Mizik and DJ Producer Joseph Ray. 

For more information about the podcast series and our conference, Immigration, Equal Protection, and the Promise of Racial Justice: The Legacy of Jean v. Nelson, visit our website, jeanvnelson35.org. 

Thanks for listening.

Hosts:

Raymond Audain
Senior Counsel, NAACP Legal Defense and Educational Fund, Inc.

Sarah Hamilton-Jiang
Legal Research Consultant

Ellie Happel
Haiti Project Director, Global Justice Clinic at New York University School of Law

Production:

Keecee DeVenny
Digital Media Associate, NAACP Legal Defense and Educational Fund, Inc.

Zach McNees, Editor/Mixer

Resources referenced in this episode:

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, The New Press, 2012

Black Alliance for Just Immigration, and NYU School of Law Immigrant Rights Clinic, The State of Black Immigrants, 2016.

Alina Das, No Justice in the Shadows: How America Criminalizes Immigrants, Public Affairs, 2020.

Carl Lindskoog, Detain and Punish: Haitian Refugees and the Rise of the World's Largest Immigration Detention System, University of Florida Press, 2018.

International Consortium of Investigative Journalists, Solitary Voices, 2019

Barack Obama, Remarks by the President in Address to the Nation on Immigration, The White House, Office of the Press Secretary, Nov. 20, 2014.