Anti-Blackness and Immigration Law

By Martha Menendez, Bernstein Senior Fellow, UNLV Immigration Clinic

[Editor’s note: This article has been updated per request from the author. 2/2/2021.]

Immigration law is by nature a practice of exclusion; its very premise based on elastic borders that, though they may change over time, exist for the sole purpose of separating one predefined category of human being from another. The statutory language of exclusion refers to things such as nationality, citizenship, and national origin, which in most cases can be easily ascertained. What they do not specifically make mention of is the racial bias upon which our immigration system was founded and how that racism continues to control who is most negatively impacted by its arbitrary rules.

A little history: the first immigration law of our young United States was passed in 1790 and set the procedures by which one could become a citizen of the new nation. Nationality Act of 1790. The foremost requirement, of course, was that the immigrant be “a free white person.” In the centuries since, we have rarely missed an opportunity to specifically exclude entire ethnic groups under the pretense of protecting the economy (Chinese Exclusion Act of 1882), our way of life (Immigration Act of 1924), or national security, most notably with the creation of the Department of Homeland Security in 2002. However, it is the passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA) in 1996 that is most directly responsible for the criminalization of immigration that practitioners and affected communities are familiar with today. The Act increased the severity of penalties for immigration violations and introduced the concept of mandatory detention for certain classes of non-citizens awaiting adjudication of their immigration claims. Within this increasingly criminalized system, Black immigrants have borne the brunt of heightened immigration enforcement policies and make up a disproportionate number of immigrants facing deportation on criminal grounds. In fact, while immigrants in general are 3.5 times more likely to be picked up for an immigration violation than for a criminal offense, Black immigrants are two times more likely to get picked up on a criminal matter that then leads to them being placed in deportation proceedings.

Yet, despite the fact that immigration law was founded on the othering of Black people and that they are proportionally at greater risk of enforcement, detention, and deportation, Black immigrants are largely excluded from immigration policy and reform discussions. Of course, much of that has to do with the sheer number of immigrants from Mexico and Central and South America, but the erasure of Black immigrants, including Afro-Latinx immigrants, also has much to do with the pervasiveness of Anti-Blackness that exists, and has always existed, within the Latinx communities both in the United States and abroad. As a reflection of its colonized history, Latin America continues to espouse a concept of “Latinness”, of “Latinidad”, that almost always centers whiteness as the ideal. Black men and women are othered even within communities where they share the same culture, ethnicity, and nationality. This othering contributes to their erasure and when it comes time to doling out resources and assistance, Black immigrants are often overlooked.

There are several actions practitioners and advocates can take to ensure a more equitable treatment of Black immigrants:

  • First and foremost, it is our duty to speak up against anti-Blackness within our own communities every single time it appears
  • Center Black voices and Black experiences in the immigration context
  • Create and promote Black leadership within immigration reform efforts
  • Support universal legal representation for all people in removal proceedings
  • Work to end the practice of over-policing and criminalization of Black communities

Only by inviting and uplifting the voices of Black immigrants can we truly begin to address the racism inherent in the immigration system.

Sources

Nationality Act of 1790, available at https://immigrationhistory.org/item/1790-nationality-act/, last visited on 1/6/21.
H. R. 40, Naturalization Bill, March 4, 1790, available at https://www.visitthecapitol.gov/exhibitions/artifact/h-r-40-naturalization-bill-march-4-1790, last visited on 1/6/21.
U.S. Department of State, Chinese Immigration and Chinese Exclusion Act, https://history.state.gov/milestones/1866-1898/chinese-immigration, last visited on 1/6/21.
U.S. House of Representatives, Historical Highlights: The Immigration Act of 1924, available at https://history.house.gov/Historical-Highlights/1901-1950/The-Immigration-Act-of-1924/, last visited on 1/6/21.
Dara Lind, The disastrous, forgotten 1996 law that created today’s immigration problem, The Vox, April 28, 2016, available at https://www.vox.com/2016/4/28/11515132/iirira-clinton-immigration, last visited on 1/6/21.
American Civil Liberties Union, Analysis of Immigration Detention Policies, https://www.aclu.org/other/analysis-immigration-detention-policies, last visited on 1/6/21.
Kica Matos and Nana Gyamfi, Centering Black Voices in the Struggle for Immigrant Rights, Vera Institute of Justice, available at https://www.vera.org/blog/centering-black-voices-in-the-struggle-for-immigrant-rights, last visited on 1/6/21.
Breanne Palmer, Anti-Blackness, Immigration Law, and Criminal Law, available at https://racism.org/articles/citizenship-rights/immigration-race-and-racism/1921-anti-blackness-immigration-law-and-criminal-law, last visited on 1/6/21.
Julie Torres, Black Latinx Activists on Anti-Blackness, The Association of Latina/o & Latinx Anthropologists, September 3, 2020, available at https://www.anthropology-news.org/index.php/2020/09/03/black-latinx-activists-on-anti-blackness/, last visited on 1/6/21.

About the author
Martha Menendez, Esq.

Martha Menendez, Bernstein Senior Fellow, UNLV Immigration Clinic. Proud daughter of immigrants, Martha has devoted her career to promoting the rights of everyone to live and work across borders without fear and with the dignity and respect that all human beings deserve.

About this article

This article was originally published in the “Racial Justice” issue of Communiqué, the official publication of the Clark County Bar Association, (February 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-february-2021/.

© 2021 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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