CERD: Anti-Black Discrimination within US Immigration, Detention, and Enforcement Systems

Anti-Black Discrimination within US Immigration, Detention, and Enforcement Systems

As detailed in a Shadow Report submitted to the CERD Committee, Black non-citizens in the US face disparate treatment and racially discriminatory immigration, detention, and enforcement systems. This includes racial profiling in immigration enforcement actions; excessive force, medical neglect, and other discriminatory treatment by US personnel in immigration detention; prolonged and arbitrary detention, including the imposition of higher bonds on Black migrants; inadequate access to legal information, legal counsel, and proper interpretation in detention; low rates of successful fear screenings and approval rates for individuals from Black-majority countries; and racially disparate rates of deportation.

• Racially disparate outcomes in denials of initial asylum credible fear screenings interviews: Asylum seekers from Black-majority countries are deemed not credible during fear screening interviews at greater rates than other nationalities and disproportionately to their share of the asylum-seeking population as a whole. Recent government data reveals that asylum seeker nationals from Sub-Saharan Africa Black-majority countries in Fiscal Year (FY) 2020 were deemed not credible in 8.5% of credible fear interviews, over 37% more often than on average for all nationalities that year. Asylum seekers from Black-majority countries including Burkina Faso, Cameroon, the Dominican Republic, Haiti, Ghana, Mauritania, and Senegal had some of the highest negative credibility finding rates, and asylum seekers from Haiti have had disproportionately low credible fear interview passage rates from FYs 2016 to 2021 (through May), resulting in disproportionate rates of expedited removal from the US. The disparities are based in part on negative race-based biases against Black asylum seekers from African and Caribbean countries, lack of access to legal counsel who speak their languages or have knowledge of their country, and flawed screenings that fail to provide adequate interpretation to asylum seekers in “rare” African languages and are only explained to the asylum seekers in English or Spanish. See Shadow Report at ¶ 55-63.
• Disparate treatment in immigration court removal proceedings: Black asylum seekers also face disparate treatment in immigration court removal proceedings, including denials of adequate interpretation, lack of access to counsel, intentionally rushed proceedings, and adjudicator bias, which result in wrongful denials of asylum and, in some cases, deportation to persecution and torture. Between 2001 and 2021, Haitian asylum seekers had the second highest asylum denial rate of any nationality at 82%. During the Trump administration, while security situation declined in Cameroon, Cameroonians were increasingly subjected to immigration detention, where, as a result, they were far less likely to obtain counsel and to receive asylum than non-detained Cameroonian asylum seekers. See Shadow Report at ¶58-63.
• Deportations due to prior contact with the racially discriminatory US criminal enforcement system: An estimated 76% of deported Black immigrants were deported because of prior contact with the US criminal enforcement system; only half of all non-Black immigrants are deported because of such prior contact. This disparity in immigration enforcement is due in part to the disparate outcomes Black immigrants face within US. US social and economic structures, including the country’s mass criminalization of African Americans. See Shadow Report at ¶ 64-65.
• More likely to face prolonged and arbitrary immigration detention: Multiple studies show that Black immigrants are detained for longer periods than non-Black migrants and are less likely to be released from immigration detention on bond or parole than non-Black immigrants. One study showed that Cameroonians are two-and-a-half times more likely to have their parole requests denied by the New Orleans, Louisiana immigration office than similarly situated non-African applicant. Black immigrants are six times more likely to be sent to solitary confinement than other detained populations. See Shadow Report at ¶ 66-76, 82.
• Excessive use of force and medical neglect in immigration detention centers: From 2020 to 2022, at least nine complaints were filed with Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL) and at least three lawsuits were filed in US courts on behalf of Cameroonians and other Africans who reported abuse and excessive force, anti-Black discrimination, and other mistreatment in detention and during deportation. For example, in November 2020, a complaint filed against Jackson Parish Correctional Center in Louisiana on behalf of six Cameroonians alleges Immigration and Customs Enforcement (ICE) officials tortured Cameroonians and forced them to be fingerprinted to obtain their assent to be deported. At least four of complainants were subsequently deported to Cameroon. A February 2021 complaint against Winn Correction Center in Louisiana also documented the use of torture to force Cameroonians to sign deportation documents. CRCL complaints also allege Black detained non-citizens suffer from medical neglect in immigration detention, including Black women who suffer deliberate indifference related to prenatal, maternal, gynecological, and pediatric medical needs. The CRCL office has been slow to respond or non-responsive to these complaints. See Shadow Report at ¶ 77-90.

Questions for the US Government

• Using national country data, civil society advocates have discerned a harrowing pattern of discrimination against individuals from majority-Black countries. Compared to nationals of other countries, non-citizens from majority-Black countries are held in immigration detention for longer and are more likely to be placed in solitary confinement, more likely to be denied asylum, and more likely to be ordered removed without the opportunity to even see an immigration judge. Yet this review is likely underinclusive of the full scope of anti-Black discrimination because US immigration agencies do not collect or publish racial data on individuals subject to enforcement. How can the US enact measures to eliminate anti-Black racism in immigration enforcement if it does not even understand the full scope of the problem? What steps are being taken to collect and publish racially-based data on individuals in the immigration system?
• How can the US government account for implicit and other racial bias in immigration adjudications, including credible fear interviews? What measures are being taken to address this racial bias?
• Is the US government reviewing and reconsidering its use of expedited removal, particularly in light of the racially disparate outcomes faced by African, Haitian, and other asylum seekers from Black-majority countries?
• What steps are being taken by the Office of Civil Rights and Civil Liberties (CRCL) to respond to the multiple complaints filed in the last two years that allege disparate treatment and abuse against Black asylum seekers in ICE immigration detention centers, ranging from torture to extract forced assent to deportation, to cruel and disproportionate solitary confinement, to medical neglect of mothers and pregnant women?
• Describe the efforts being taken by DHS, ICE, and CRCL to systematically review anti-Black bias and disparate and discriminatory practices in ICE detention, including in health care, that have resulted in cruel and unusual punishment and treatment, such as using excessive force to extract forced assent to deportation, cruel and disproportionate solitary confinement, and medical neglect of mothers and pregnant women.
• Describe efforts to stop criminalization and mass detention of Black asylum seekers and migrants, as well as unnecessary, disproportionate or otherwise arbitrary detention.