Following the police killings of George Floyd, Breonna Taylor and other African Americans, the United States engaged in an extended national discussion — peppered by public protests in cities across the nation — about eradicating systemic racism directed at African Americans, Latinos and others by law enforcement. Systemic racism also deeply afflicts U.S. immigration law and its enforcement, a longstanding practice that has been documented by scholars.
The American Bar Association (ABA), the largest national organization of lawyers, has called for an investigation by the U.S. government into the influence of racism and xenophobia on the enforcement of immigration laws. This is a stunning development by a mainstream group of lawyers; the ABA’s actions warrant our full attention.
The ABA House of Delegates passed Resolution 610, which: “Urges the Department of Homeland Security, the Department of Justice, and the Department of Health and Human Services, to identify and eradicate actual and perceived racial bias, discrimination, and xenophobia in the enforcement of the Immigration and Nationality Act.”
Many noncitizens within and seeking to come to the United States are people of color from the developing world who are directly affected by the comprehensive federal immigration law. That law employs the terms “alien” to legitimize harsh treatment. Those deemed as aliens are subject to discrimination that never could be lawful with respect to U.S. citizens, including detention and removal from the country. A report submitted by the ABA Commission on Immigration in support of the resolution offers many examples of how immigrants of color have been injured by racial bias in enforcement.
The need to address racism in this area should not be especially surprising. Historically, racism has deeply influenced immigration and immigration enforcement.
The first comprehensive federal immigration law was forged by virulent racism against Chinese immigrants. The Chinese Exclusion Act of 1882 prohibited the immigration of most Chinese people to the United States.
From 1792 to 1952, being white was a prerequisite for the naturalization of immigrants.
Passed by Congress in 1924, the discriminatory national origins quotas system, which remained in place until 1965, favored immigration from Northern Europe and greatly restricted the migration of people of color to the United States.
In 1954, the U.S. government removed hundreds of thousands of persons of Mexican ancestry from the country in an initiative officially known as “Operation Wetback.”
That racism, unfortunately, is not simply just a part of history. Donald Trump kicked off his successful 2016 presidential campaign by referring to Mexican immigrants as “criminals” and “rapists.” As president, he crudely said the United States should not allow noncitizens from “shithole” countries such as Haiti and El Salvador to remain in the United States, issued three versions of the Muslim ban, put in place a policy of separating Central American parents and children and much more.
Although President Trump’s racial vitriol was unlike that of any other modern president, others pursued policies similar to his. More than 90 percent of the record 400,000-plus noncitizens removed from the country during the Obama years were from Latin America. It was under President Biden’s watch that Haitian migrants on the U.S./Mexico border were chased on horseback by Border Patrol officers and immediately returned to Haiti. And Biden has continued Title 42 mass expulsions of migrants from the Trump era, a decision that led former Yale Law Dean Harold Koh to resign from a post in the State Department.
Moreover, the ordinary operation of the U.S. immigration removal system reflects no less than systemic racism. The Supreme Court has held that “Mexican appearance” may be considered by Border Patrol officers in making immigration stops, a move that has contributed to racial profiling in ordinary immigration enforcement. Moreover, police reliance on racial profiling of Blacks and Latinos in routine criminal law enforcement leads to disparate arrests of Black and Latino immigrants. Racial profiling in turn feeds noncitizens of color directly into the immigration removal system. It, therefore, should be no surprise that year in and year out Latinos and Blacks are severely overrepresented in the noncitizens removed from the United States.
Resolution 610 was one of several ABA resolutions approved relating to immigration. Resolution 609 urged that the U.S. asylum system be reformed to afford persons seeking protection from persecution or torture more transparency, due process of law, access to counsel and full and fair adjudication of any claims to relief. It also calls for the end of the use of Title 42 to block and expel asylum-seekers at the U.S. border. Resolution 608 advocates for steps to facilitate the provision of speedy relief to Afghan refugees.
The three resolutions aim to bring a semblance of racial justice to U.S. immigration law and its enforcement. Recognition of systemic racism in the immigration system by lawyers as a group — not just immigration lawyers — is a tremendous step forward.
As part of the overall agenda to eliminate systemic racism from U.S. social life, we as a nation must strive to do the same in immigration enforcement.
Kevin R. Johnson is dean and Mabie/Apallas professor of Public Interest Law and Chicanx Studies at UC Davis School of Law. He is the author of Systemic Racism in the U.S. Immigration Laws 97 Indiana Law Journal (forthcoming 2022). Karla McKanders is a Clinical professor of Law at Vanderbilt Law School.