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Racism in immigration asylum decisions | COMMENTARY

Thousands of protesters in 2018 block the street at the arrivals area of Terminal 4 at John F. Kennedy Airport in Queens to protest Trump's ban on those entering the U.S. from seven banned, predominantly Muslim countries in the Middle East and Africa. One large banner reads "Syrian Refugees Welcome."
Thousands of protesters in 2018 block the street at the arrivals area of Terminal 4 at John F. Kennedy Airport in Queens to protest Trump's ban on those entering the U.S. from seven banned, predominantly Muslim countries in the Middle East and Africa. One large banner reads "Syrian Refugees Welcome." (Kevin C. Downs for New York Daily News)

As the world reels from the murders of George Floyd, Breonna Taylor, Freddie Gray and other Black people, we cannot ignore that racism also extends to Black people seeking to immigrate to the United States.

It is no secret that U.S. immigration policy is racist. Legal immigration for people deemed Black and brown is exponentially harder than for people who are white. The U.S. immigration system detains and denies immigration applications of Black people at higher rates, according to an analysis by the International Consortium of Investigative Journalists. It bans them entirely through the Trump-ordered and Supreme Court-sanctioned Muslim ban that targets African countries, including Sudan, Nigeria, Tanzania, Eritrea, Somalia and Chad (still in effect). Black immigrants are more likely to be deported because they are more likely to have encounters with law enforcement and end up charged and prosecuted for crimes which lead to deportation. Racism is endemic to the immigration system, just as it is to the criminal justice system.

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As a criminal defense attorney and immigration attorney, I’ve had many occasions to personally witness the blatant racism in both systems. Too many times, I’ve sat in packed courtrooms, both immigration and criminal, where every person in chains was Black or brown and every person with a hand in their fate, whether judge, prosecutor or defense counsel, was white.

I’ve represented people deemed white and people who are Black or brown in both systems. Let me tell you, unequivocally: Representing a person deemed white is much easier. Recently, I represented two clients seeking asylum; one categorized by the system as Black, the other seen as white. They both merited asylum. But, to date, only the client deemed white has been granted asylum.

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My Black client is a doctor from a country on the African continent. His wife is a law professor. They have four children. The family was persecuted by the government in their country because my client treated a protester injured at an anti-government protest. The government categorized him as an insurgent. He had no political affiliation, had never been anything but a law-abiding citizen. But, because he would not violate the Hippocratic oath, his government broke into his family home, arrested, jailed and tortured him for months on end.

His family was physically and emotionally brutalized and terrorized. Their home ransacked, their sense of security destroyed. The family, knowing they would never be safe in their home country, fled. They applied for asylum as soon as they arrived in the United States. They complied with all aspects of the process. Their case is exactly the kind of case that the asylum statute was designed to recognize. And yet, they have been waiting for a decision for nearly two years since their asylum interview, notwithstanding intervention from a U.S. senator.

Contrast this to my white client who lived unlawfully in the United States, flouting immigration laws for over 12 years. During that time, this client obtained a criminal conviction. When the client applied for asylum, the application was 11 years past the legal deadline. The client was granted asylum within four months of filing the application, and only two weeks after the asylum interview.

The system is working exactly as it was designed to: It is valuing those bodies it believes to be white above those it has categorized as non-white. It does not matter that my Black client is a doctor who could be saving lives during the COVID crisis, while my white client has no comparable education. Both deserve asylum, but the only reason my white client has it and my Black client does not is their perceived races.

The U.S. holds itself out as a place where equality is not just an aspiration, but a reality. When I ask clients why they sought protection here, they reply: because you can be anyone you want to be, no matter the color of your skin, sexual orientation, religion. They don’t know how to reconcile their vision with the U.S. that they have encountered — the derision of the border guards, the squalor of the detention centers, the dehumanizing immigration process.

They hope that America is better than the immigration system that greeted them. I don’t have the heart to tell them that it isn’t. But I have a hope that it will be, and that hope is greater now than it ever has been, because of the Black Lives Matter movement. As we march for Black citizens, let’s not forget those who should be here, but aren’t, or are here, but remain hidden from the light.

Gabriela Q. Kahrl (gkahrl@law.umaryland.edu) is senior attorney at CAIR Coalition and staff attorney at the Maryland Carey Law Immigration Clinic.

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