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July 22, 2022

NGO Shadow Report on anti-Black US Immigration Practices Submitted to the Committee on the Elimination of Racial Discrimination

This Shadow Report is submitted for the combined tenth, eleventh, and twelfth periodic review of the United States (“US”) by the Committee on the Elimination of Racial Discrimination (“Committee”). The Report provides selected research and analysis focusing on US immigration and refugee laws, regulations, policies, and practices that subject Black non-citizens to racially discriminatory treatment in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (“Convention”). It is not a comprehensive account of all forms of discrimination in the United States against migrants, refugees, and asylum seekers. We thank the Committee for the opportunity to share this information and its consideration of the actions we recommend to address these serious violations.

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Executive Summary

The United States government subjects Black non-citizens—migrants, refugees, and asylum seekers—to ongoing racist and xenophobic treatment under its laws, regulations, policies, and practices, in contravention of the Convention, which prohibits discrimination against all persons under its jurisdiction, including non-citizens on the basis of race and national origin.

Since the Committee last reviewed the US in 2014, the US government has implemented a series of policies at the border, including metering, the Migrant Protection Protocols, and Title 42 policies, with devastating and disparate impact on Black migrants, refugees, and asylum seekers. They have resulted in myriad human rights violations, have prevented many people eligible for refugee protection from seeking or receiving asylum in the US, and have been used to carry out summary pushbacks and expulsions of asylum seekers in direct violation of non-refoulement jus cogens obligations. Since 2020, thousands of Haitians, including asylum seekers, have been disparately targeted for expulsion under the Title 42 policy to a deepening security and humanitarian crisis in Haiti without an opportunity to apply for asylum protection.

The shocking, discriminatory, and excessive use of force by US immigration officers in September 2021 against Haitian migrants attempting to seek refuge in the United States near Del Rio, Texas, is another emblematic manifestation of the US’s attempts to deter Haitians from seeking asylum in the US and the systematic discrimination Black people, citizen or non-citizen, face in the US.

Unable to seek asylum in the United States due to these policies at the border, unable to return to their home countries due to persecution and other life-threatening conditions, and unable to firmly settle elsewhere in the Americas because of discriminatory policies and treatment, many Haitians have been stuck for years in the US-Mexico border region in dangerous, cartel-controlled territories in Mexico where they also face pervasive anti-Black discrimination. US policies have added to the dangers displaced people face as they are forced to undertake more dangerous migration routes, as formal and informal US agreements with countries in the Americas result in new restrictions, closed borders, and other measures that increasingly restrict access to asylum protection throughout the region.

Black migrants who manage to arrive in the US face disparate treatment and a racially discriminatory immigration system. 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 or proper interpretation in detention; low rates of successful asylum screenings and approval rates for individuals from Black-majority countries from which many refugees are seeking international protection; and racially disparate rates of deportation.

The anti-Black animus behind policies adopted by the former Trump administration was made evident in statements reportedly made by President Donald Trump denigrating African and Haitian countries and their people. Some of these illegal practices from the prior administration—including Title 42 expulsions—continue. But discriminatory government policies and practices to deter Black refugees and immigrants from coming to the US are not new. Contemporary efforts to target, interdict, detain, and block Haitian refugees span back to at least the 1970s. As some commentators have remarked, “[w]e are in a moment that is strikingly reminiscent of the early 1980s, when fear and hatred of Haitians was used to justify the reinstitution and expansion of immigration detention.”

This Shadow Report summarizes the US’s legal framework and details some of the myriad, recent violations of the rights of Black migrants, refugees, and asylum seekers in the US. The Report recommends steps the US should take to comply with its obligations under the CERD.

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