Exploring Anti-Blackness in U.S. Immigration Policy: Why Are Cuban And Haitian Immigrants Treated Differently?

INTRODUCTION

How is immigration policy developed? Why is immigration policy important?

“Once I thought to write a history of immigrants in America; then, I discovered that immigrants were American history.”[i]

Immigration has always played an important role throughout American history. From shaping who was here (demographics dating back to the founding of America), to what we were up to (the development of an urban industrial economy in the late 19th century), immigration has profoundly impacted American history, as it still does today.[ii]

What is as consistent as the presence of immigrants in the U.S. is the extreme nativism they face, or the fear of foreigners. In 1894, the Immigration Restriction League advocated for a literacy test to reduce immigration from Southern and Eastern Europe.[iii] In 1882, the Chinese Exclusion Act was promulgated to prohibit the immigration of Chinese laborers.[iv]

Leading up to the 1920s, several groups, like the Progressive Movement in the Midwest and the Ku Klux Klan, campaigned to ban immigration altogether from certain countries in Europe like Germany.  Around 1925, fear was further fueled when claims of Eugenics pseudo-science suggested the “inferiority of new immigrants” compared to American-born individuals.[v] And these are just some examples of the nativism immigrants face in the U.S.

Today, the U.S. immigration system, comprised of a complicated set of policies governing the visa application process and admissions for immigrants, is federally regulated through the Immigration and Nationality Act (INA).[vi] Immigration policies are allegedly based on principles like “the reunification of families, admitting immigrants with skills that are valuable to the U.S. economy, protecting refugees, and promoting diversity.”[vii] However, further inspection suggests that some immigration laws are rooted in “preventing the blackening and browning of America” [viii] so that America does not include immigrants from what former President Trump called “shithole countries.” [ix]

Presently, the U.S. faces sharp criticism for the differences in its respective immigration strategies with Cuba and Haiti. Despite the fact that both countries have a history of repressive governments with documented human rights violations, immigrants from those countries experience dramatically different legal outcomes.[x]

On one hand, Cuban immigrants, who are predominantly White or identify as White, have been extended unusually special treatment in the United States since the 1960s, which includes a direct and timely path to legal permanent residence. [xi] [xii] On the other hand, Haitian immigrants, generally of African descent, have been denied, time after time, the relief they are entitled to and face significant obstacles to legal permanent residence.[xiii] While there are a wide range of political, economic, and historic reasons that can explain the discrepancies between immigration policies and treatment between Cuban immigrants and Haitian immigrants–could the color of their skin also be one of them?

The following blog post: a) identifies some major historical moments that shaped immigration policies for Cuban and Haitian immigrants, b) explores realms of anti-Blackness sentiment possibly influencing these policies, and c) outlines why discrimination of this kind negates the founding principles of immigration in the U.S.

HISTORY & BACKGROUND

Cuba

In the 1960s, Cuban immigrants began arriving in the United States after Fidel Castro’s communist regime took hold of the country.[xiv] In response, Congress passed the Cuban Adjustment Act in 1966, which allowed Cuban immigrants to become lawful permanent residents (LPR or green-card holders) if they (1) were inspected and admitted or paroled in the U.S., (2) had been physically present in the U.S. for at least one year, and (3) were otherwise admissible.[xv]

Under the Cuban Adjustment Act, the “wet-foot/dry-foot” policy referred to Cuban immigrants who were intercepted at sea (“wet foot”) and returned to Cuba and those who reached U.S. soil (“dry foot”) were able to request parole and were eligible for lawful permanent resident status.[xvi] This policy was rescinded by the U.S. Department of Homeland Security in 2017.[xvii]

From 1960 to 1970, the Cuban population in the United States grew from 79,000 to 439,000.[xviii]

Because of the communist regime, Cubans had few chances to leave the island. One was during the 1980 Mariel boatlift, when the Castro regime announced that Cubans that wanted to emigrate to the U.S. could board boats at the port of Mariel.[xix] The 1980 Mariel boatlift resulted in the migration of 125,000 Cubans to Florida alone.

That same year, President Jimmy Carter enacted the Cuban Haitian Entrant Program (CHEP), which temporarily extended special benefits to eligible Cubans and Haitians like assistance securing housing, a food allowance, and other necessities. However, that program expired after Carter’s administration left office.[xx]

Since the 1970s, Cubans have been in the top ten immigrant groups in the U.S. with more than 1.3 million Cubans accounting for roughly three percent of the overall immigrant population of 44.7 million in 2018.

Haiti

Also attempting to flee a dictatorship, Haitian immigrants began coming to the U.S. in large numbers in the 1970s.[xxi] At the time, U.S. immigration policy categorically decided that Haitians were ineligible for asylum because they were not considered political refugees but instead “economic immigrants, seeking jobs and better living conditions.”[xxii] Without asylum eligibility, “every Haitian landing in the United States was subject to immediate deportation.” [xxiii]

After the Cuban/Haitian Entrant special status expired after President Carter, President Reagan began returning any seized boat caught by the U.S. Coast Guard that carried Haitian refugees. It is important to note that if these refugees requested asylum once in custody, they were entitled to an interview by the U.S. Coast Guard. [xxiv] Despite this entitlement, only twenty-eight applications were granted asylum of the estimated 25,000 Haitian refugees in custody. [xxv] Many refugees later reported that they were never interviewed at all.[xxvi]

In 1991, Jean-Bertrand Aristide became the first democratically elected president of Haiti; however, political stability quickly faded when a violent military coup killed more than 1,500 of his supporters and sparked another immigration crisis.[xxvii]

Tens of thousands of Haitians arrived in the United States seeking political asylum, but President George H.W. Bush claimed that there were no human rights violations going on in Haiti.[xxviii] As a result, once again, the U.S. could not recognize Haitian refugees as political asylum seekers.[xxix]

In 2010, a devastating earthquake hit Haiti, killing more than 300,000 people and displacing more than 1.5 million people.[xxx] In response, the U.S. extended Temporary Protected Status (TPS) to certain Haitians already in the United States, providing temporary work authorization and relief from deportation until 2016.[xxxi]

In stark contrast to the benefits redeemed through the Cuban Adjustment Act, TPS does not grant a pathway to permanent legal status in the U.S. Instead, TPS is a temporary form of relief that allows recipients to work in the U.S. only for a limited period of time until the U.S. decides to end the country’s TPS designation.[xxxii]

Why compare Cuba to Haiti?

Generally, Cuba and Haiti share several similarities. As described in a Congressional Report provided by immigration policy specialist Ruth Ellen Wasem, “both nations have a history of repressive governments with documented human rights violations and both countries have a history of sending asylum seekers to the United States by boats.”[xxxiii] Wasem points out that U.S. immigration laws are generally applied neutrally without regard to the country of origin, but there still exists special laws and agreements that apply to both Cubans and Haitians.[xxxiv]

Despite these similarities, Wasem suggests that “the treatment of Cubans fleeing to the United States differs from that of Haitians”. In fact, “Cuban migrants receive more generous treatment under U.S. law than Haitians or foreign nationals from any other country.”[xxxv]

ANALYSIS

Review of these similarities between the sister countries of the Caribbean raises the question: why does the U.S. treat one group of immigrants differently than another group of immigrants?

One suggestion is that anti-Blackness sentiment influences some of our immigration policies, and that idea is not as far fetched as it first seems. In 2018, President Trump made these comments in the Oval Office: “Why should the U.S. accept more immigrants from Haiti and shithole countries in Africa, rather than places like Norway?”[xxxvi] The former President also allegedly said that people coming from Haiti “all have AIDS” and that recent Nigerian immigrants would never “go back to their huts in Africa.”[xxxvii]

More than hurtful words, the President’s statements revealed the anti-Blackness and xenophobic motives that influenced official Presidential action.

In 2017, President Trump issued the “Muslim Ban,” a series of Executive Orders that prohibited travel to the U.S. for 90 days from seven predominantly Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.[xxxviii] The real effect of his motives transformed into a decision from the United States Supreme Court in Trump v. Hawaii.[xxxix] The Court held that placing such restrictions was a valid exercise of presidential authority because “their entry was detrimental to the United States’ interests.”[xl] As emphasized by Professor Shirin Sinnar from Stanford Law, this decision directly contradicts an explicit provision of 8 U.S.C. § 1152(a) in the Immigration and Nationality Act that forbids discrimination on the basis of nationality.[xli]

We turn then to the idea of anti-Blackness. Is anti-Blackness different than racism? Are Black immigrants treated differently than White immigrants?

According to the University of California San Francisco Multicultural Resource Center, anti-Blackness is a “two-part formation that both strips Blackness of value (dehumanizes) and systematically marginalizes Black people.”[xlii] Sometimes anti-Blackness is conveyed through overt racism, like President Trump’s comments about immigrants from Haiti and Africa. Other times, anti-Blackness is found within the “covert structural and systemic racism which predetermines the socioeconomic status of Black people in the U.S. and held in place by anti-Black policies, institutions, and ideologies.”[xliii]

Because of their dual identity as Black people and immigrants, Black immigrants face double the challenges in the U.S.

As targets for both local law enforcement and immigration enforcement, Black immigrants are disproportionately racially profiled, stopped, and arrested by police.[xliv]

Black Alliance for Just Immigration (BAJI) reports that among all immigrants, “Black immigrants are nearly three times more likely to be detained and deported because of an alleged criminal offense.”[xlv]

Once in detention centers, Black immigrants are also six times more likely to be held in solitary confinement.[xlvi]

Black immigrants also face the highest bail bonds. Shockingly, bonds for Haitian immigrants averaged $16,700, 54% higher than other immigrant nationalities.[xlvii]

Arguably, U.S. immigration policy was intentionally built this way from the beginning. Professor Alina Das from NYU Law highlights that Black people were, “deliberately excluded from the first laws of naturalization and the application of the concept of birthright citizenship in the 1800s.”[xlviii] [xlix] Her research points to the first immigration law passed in 1790 that only extended citizenship for “free White persons” who lived in the U.S. for at least two years.[l]

Can these reasons explain why Cuban immigrants, who navigate an immigration system which rewards groups with lighter skin, enjoy preferential treatment compared to Haitian immigrants?

CONCLUSION

When it comes to competing immigration policies, there are overlapping reasons why one group enjoys benefits that another does not. History. Politics. Foreign Policy. Etc.

Even so, the overwhelming evidence suggests that Black immigrants are consistently discriminated against, withheld relief that they are entitled to, and not extended preferential treatment like immigrants of other nationalities are. There is a strong argument to be made that U.S. immigration policy with Cuban immigrants is a colorist symptom of a system that was established to disfavor Black immigrants like Haitians.

Those of us benefitting from such structures–White Americans, White immigrants–navigate the system with privilege and carry the responsibility of remaining critical of today’s immigration policies and the underlying reasons that shape them.

Are the reasons for these decisions consistent with the aforementioned U.S. immigration policy principles? Do these decisions pedal any of these motives: keeping families together, admitting valuable skills to the U.S. economy; protecting vulnerable refugees, or promoting diversity?

Or instead, are these reasons influenced by anti-Blackness?

 

Citations

[i] Handlin, Oscar, 1915-2011. The Uprooted; the Epic Story of the Great Migrations That Made the American People. Boston: Little, Brown, 1951.

[ii] Charles Hirschman, The Impact of Immigration on American Society: Looking Backward to the Future, Items SSRC, July 28, 2006, available at https://items.ssrc.org/border-battles/the-impact-of-immigration-on-american-society-looking-backward-to-the-future/

[iii] Yuning Wu, Chinese Exclusion Act, Encyclopedia Britannica, Feb. 9, 2021, available at https://www.britannica.com/topic/Chinese-Exclusion-Act

[iv] Yuning Wu, Chinese Exclusion Act, Encyclopedia Britannica, Feb. 9, 2021, available at https://www.britannica.com/topic/Chinese-Exclusion-Act

[v] Charles Hirschman, The Impact of Immigration on American Society: Looking Backward to the Future, Items SSRC, July 28, 2006, available at https://items.ssrc.org/border-battles/the-impact-of-immigration-on-american-society-looking-backward-to-the-future/

[vi] American Immigration Council, How the United States Immigration System Works, American Immigration Council Research Topics, Oct. 10, 2019, available at https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works

[vii] American Immigration Council, How the United States Immigration System Works, American Immigration Council Research Topics, Oct. 10, 2019, available at https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works

[viii] Karla McKanders, Immigration and Blackness: What’s Race Got to Do With It? American Bar Association Human Rights Magazine, May 26, 2019, available https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/black-to-the-future/immigration-and-blackness/

[ix] Alan Fram and Jonathan Lemire, Trump: Why allow immigrants from ‘shithole countries’? Associated Press, Jan 12, 2018, available at https://apnews.com/article/fdda2ff0b877416c8ae1c1a77a3cc425

[x] U.S. Congressional Research Service Report. Cuban Migration Policy and Issues (RS20468; Jan. 25, 2005), by Ruth Ellen Wasem. https://www.researchgate.net/publication/338237212_US_Immigration_Policy_on_Haitian_Migrants

[xi] Pew Research Center, Cubans in the United States Fact Sheet, Pew Research Center Hispanic Trends, Aug. 25, 2006, available at https://www.pewresearch.org/hispanic/2006/08/25/cubans-in-the-united-states/

[xii] Brittany Blizzard and Jeanne Batalova, Cuban Immigrants in the United States, Migration Policy Institute, Jun. 11, 2020, available at https://www.migrationpolicy.org/article/cuban-immigrants-united-states-2018

[xiii] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xiv] Brittany Blizzard and Jeanne Batalova, Cuban Immigrants in the United States, Migration Policy Institute, Jun. 11, 2020, available at https://www.migrationpolicy.org/article/cuban-immigrants-united-states-2018

[xv] U.S. Dept. of Homeland Security, Fact Sheet: Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals, (2017).

[xvi] U.S. Dept. of Homeland Security, Fact Sheet: Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals, (2017).

[xvii] U.S. Dept. of Homeland Security, Fact Sheet: Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals, (2017).

[xviii] Brittany Blizzard and Jeanne Batalova, Cuban Immigrants in the United States, Migration Policy Institute, Jun. 11, 2020, available at https://www.migrationpolicy.org/article/cuban-immigrants-united-states-2018

[xix] https://www.miamiherald.com/news/local/news-columns-blogs/fabiola-santiago/article242025081.html

[xx] Refugee Education Assistance Act of 1980, Pub. L. No. 96-422, §501, 94 Stat. 1799 (1980) (codified as amended 8 U.S.C. § 1522)

[xxi] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxii] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxiii] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxiv] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxv] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxvi] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxvii] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxviii] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxix] Leslie Neilan, Haitian Boat People, Immigration to the United States, Dec. 21, 2011, available at https://immigrationtounitedstates.org/536-haitian-boat-people.html#:~:text=Large-scale%20Haitian%20immigration%20to,1979%2C%208%2C300%20more%20had%20arrived

[xxx] Georges E. Fouron, Haiti’s Painful Evolution from Promised Land to Migrant-Sending Nation, Migration Policy Institute, Aug. 19, 2020, available at https://www.migrationpolicy.org/article/haiti-painful-evolution-promised-land-migrant-sending-nation

[xxxi] Georges E. Fouron, Haiti’s Painful Evolution from Promised Land to Migrant-Sending Nation, Migration Policy Institute, Aug. 19, 2020, available at https://www.migrationpolicy.org/article/haiti-painful-evolution-promised-land-migrant-sending-nation

[xxxii] Madeline Messick and Claire Bergeron, Temporary Protected Status in the United States: A Grant of Humanitarian Relief that Is Less than Permanent, Migration Policy Institute, July 2, 2014, available at https://www.migrationpolicy.org/article/temporary-protected-status-united-states-grant-humanitarian-relief-less-permanent

[xxxiii] U.S. Congressional Research Service Report. Cuban Migration Policy and Issues (RS20468; Jan. 25, 2005), by Ruth Ellen Wasem. https://www.researchgate.net/publication/338237212_US_Immigration_Policy_on_Haitian_Migrants

[xxxiv] U.S. Congressional Research Service Report. Cuban Migration Policy and Issues (RS20468; Jan. 25, 2005), by Ruth Ellen Wasem. https://www.researchgate.net/publication/338237212_US_Immigration_Policy_on_Haitian_Migrants

[xxxv] U.S. Congressional Research Service Report. Cuban Migration Policy and Issues (RS20468; Jan. 25, 2005), by Ruth Ellen Wasem. https://www.researchgate.net/publication/338237212_US_Immigration_Policy_on_Haitian_Migrants

[xxxvi] Alan Fram and Jonathan Lemire, Trump: Why allow immigrants from ‘shithole countries’? Associated Press, Jan 12, 2018, available at https://apnews.com/article/fdda2ff0b877416c8ae1c1a77a3cc425

[xxxvii] Michelle Mark, Trump reportedly said Haitians ‘all have AIDS’ and Nigerians live in ‘huts’ during outburst on immigration, Business Insider, Dec. 23, 2017, available at https://www.businessinsider.com/trump-reportedly-said-haitians-have-aids-nigerians-live-in-huts-in-immigration-outburst-2017-12

[xxxviii] Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

[xxxix] 138 S. Ct. 2392 (2018)

[xl] 138 S. Ct. 2392 (2018)

[xli] Shirin Sinnar, Trump v. Hawaii: A Roadmap for New Racial Origin Quotas, Stanford Law School Blog, Jun. 26, 2018, available at https://law.stanford.edu/2018/06/26/trump-v-hawaii-a-roadmap-for-new-racial-origin-quotas/

[xlii] University of California San Francisco, Racial Equity & Anti-Black Racism, UCSF Multicultural Resource Center Resources, available at https://mrc.ucsf.edu/racial-equity-anti-black-racism

[xliii] University of California San Francisco, Racial Equity & Anti-Black Racism, UCSF Multicultural Resource Center Resources, available at https://mrc.ucsf.edu/racial-equity-anti-black-racism

[xliv] Peniel Ibe, Immigration is a Black Issue, American Friends Service Committee News & Commentary, Feb. 18, 2021, available at https://www.afsc.org/blogs/news-and-commentary/immigration-black-issue

[xlv] Juliana Morgan Trostle and Kexin Zheng, The State of Black Immigrants Part II: Black Immigrants in the Mass Criminalization System Report, Black Alliance for Just Immigration and NYU School of Law Immigrant Rights’ Clinic, available at https://www.sccgov.org/sites/oir/Documents/sobi-deprt-blk-immig-crim-sys.pdf

[xlvi] Ben Hallman, About the Solitary Voices Investigation, International Consortium of Investigative Journalists Solitary Voices, May 21, 2019, available at https://www.icij.org/investigations/solitary-voices/about-the-solitary-voices-investigation/

[xlvii] The Refugee and Immigrant Center for Education and Legal Services, Black Immigrant Lives Are Under Attack, RAICES Blog, July 22, 2020, available at https://www.raicestexas.org/2020/07/22/black-immigrant-lives-are-under-attack/

[xlviii] Alina Das, No Justice in the Shadows: How America Criminalizes Immigrants, (1st ed. 2020).

[xlix] Sarah Hamilton-Jiang, The Other Side of the Water: Immigration and the Promise of Racial Justice (2020), https://www.jeanvnelson35.org/anti-blackness-and-the-criminalization-of-immigrants-part-one (last visited Apr. 26, 2021).

[l] Peniel Ibe, Immigration is a Black Issue, American Friends Service Committee News & Commentary, Feb. 18, 2021, available at https://www.afsc.org/blogs/news-and-commentary/immigration-black-issue