ARTICLE*
By: Mónica Lisete Hernández Santiago**
Introduction
Suppose you just landed from your Caribbean vacation flight to your hometown airport in Texas. You have your documents ready to go through Customs to then get home to unpack your bags and unwind. An immigration airport official examines your documents and questions you further. After intrusive questions from different officers during an unnecessarily long interaction at a small airport office, you may now proceed with your travel.
Even though United States citizens have a right to enter the country, they are subject to the same “questioning and ‘routine’ suspicionless searches and seizures” noncitizens go through.[efn_note]Anil Kalhan, Immigration Surveillance, 74 MD. L. REV. 1, 14 (2014). [/efn_note] This process has been ruled reasonable by the Supreme Court “when conducted for purposes of enforcing immigration and customs laws —and therefore exempt from the Fourth Amendment’s warrant and probable cause requirements—,”[efn_note]Id.; see also U.S. CONST. amend. IV. [/efn_note] precisely because it happens at the border.[efn_note]United States v. Ramsey, 431 U.S. 606, 616 (1977). [/efn_note] Additionally, these practices have been increasing in quantity and intrusiveness for both United States (hereinafter, “U.S.”) citizens and noncitizens alike.[efn_note]Kalhan, supra note 1, at 16-17. [/efn_note] Furthermore, what was once common for travelers —to not use passports when moving between the U.S., Mexico, Canada, and the Caribbean— is now required in order to enter the U.S.[efn_note]See id. at 17 (citing Intelligence Reform and Terrorism Prevention Act of 2004 § 7209(b), Pub. L. No. 108-458, 118 Stat. 3638, 3823 ; Western Hemisphere Travel Initiative, Department of Homeland Security (December 17, 2018), https://www.cbp.gov/travel/us-citizens/western-hemisphere-travel-initiative. [/efn_note]
But then again, why were you stopped? Was it because you did not look nor sound American? After all, you are a U.S. citizen and have a valid U.S. passport.
This is not a strange scenario for many individuals who are U.S. citizens, either by birth or naturalization, but do not look like the stereotypical American with fair skin, light-colored hair and light-colored eyes. An example would be Puerto Ricans, who carry DNA of the West Eurasian, Sub-Saharan African and Taíno races.[efn_note]Miguel Vilar, Genographic Project DNA Results Reveal Details of Puerto Rican History, National Geographic (July 25, 2014), https://blog.nationalgeographic.org/2014/07/25/genographic-project-dna-results-reveals-details-of-puerto-rican-history/. [/efn_note] Although there is no stereotypical Puerto Rican look because of the genetic mix, some would argue they are darker skinned, darker haired and darker eyed when compared to the stereotypical American. Although Puerto Ricans have been U.S. citizens since 1917 due to the Jones Act,[efn_note]Jones-Shafroth Act of 1917, Pub. L. No. 64-368, §5, 39 Stat. 951, 953. [/efn_note] they have been treated as second class citizens because of their race and their complicated political relationship with the U.S.[efn_note]For a detailed discussion, see Juan R. Torruella, Ruling America’s Colonies: The Insular Cases, 32 Yale L. & Pol’y Rev. 57, 58 (2013). [/efn_note] In fact, Puerto Rico is neither a state nor an independent country. It is one of the last few colonies left in the world.[efn_note]U.N. Special Comm., Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples for 2019, at 10-12, 14, U.N. Doc. A/74/23 (Aug. 21, 2019), https://digitallibrary.un.org/record/3828123?ln=en. For the EMMY award winning documentary about Puerto Rico’s unique relationship with the United States watch Juan Agustín Marquez, The Last Colony, YouTube (October 6, 2017), https://www.youtube.com/watch?v=NP5Jcvke_es. [/efn_note] Lastly, Puerto Ricans are both Hispanic and Latino; therefore, many are victims of racial profiling in the U.S. at the hands of various security departments, including immigration authorities, and even during domestic travel —be it by land, air or sea.[efn_note]Lupe S. Salinas & Fernando Colon-Navarro, Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat, 37 T. Marshall L. REV. 5, 8 (2011). [/efn_note]
I. Immigration and Naturalization Act
“The major countervailing force against progressive immigration change is fear. Fear is at the heart of racism and xenophobia and we need not look beyond the basic core of modern immigration law, the McCarran-Walter Act, to see the force of this emotion.”[efn_note]Richard A. Boswell, Racism and U.S. Immigration Law: Prospects for Reform after 9/11, 24 IMMIGR. & NAT’LYTY L. REV. 65, 103 (2003). [/efn_note]
A. History
The first Naturalization Act was enacted in 1790, and it excluded people of color from becoming citizens.[efn_note]For a timeline of the amendments to the Immigration and Nationality Act, see D’Vera Cohn, How U.S. immigration laws and rules have changed through history, Pew Research Center (September 30, 2015), https://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/. For a summary of the Nationality Act of 1790, see Nationality Act of 1790, IMMIGRATION HISTORY, https://immigrationhistory.org/item/1790-nationality-act/ (last visited Mar. 5, 2021). For the text of the Naturalization Act of 1790, see George Washington’s Mount Vernon, Naturalization Acts of 1790 and 1795, https://www.mountvernon.org/education/primary-sources-2/article/naturalization-acts-of-1790-and-1795/ (last visited Mar. 5, 2021). [/efn_note] Eighty years later, in 1870, naturalization was extended to individuals of African origin and descent.[efn_note]Naturalization Laws, Pub. L. 41-254, §7, 16 Stat. 254-256 (1870). For a summary of the 1870 Act, see Immigration History, Naturalization Act of 1870, https://immigrationhistory.org/item/naturalization-act-of-1870/ (last visited Mar. 5, 2021). [/efn_note] Nevertheless, in 1924, immigration quotas for nationalities were implemented “in which Japanese immigrants were banned and only a small number of eastern and southern European immigrants were permitted to enter, whereas Irish, Germans, and British immigrants were permitted to enter the United States in large numbers.”[efn_note]Karla McKanders, Immigration and Blackness: What’s Race Got to Do with It, 44 HUM. Rts. 20, 21 (2019). [/efn_note]
Although the McCarran-Walter Act of 1952 ended the exclusion of Asian immigration into the U.S., it still maintained the origin quotas.[efn_note]Office of the Historian, The Immigration and Nationality Act of 1952 (The McCarran-Walter Act), Department of State, https://history.state.gov/milestones/1945-1952/immigration-act (last visited Mar. 5, 2021). [/efn_note] Also, because racism and racial violence were rampant, “significant efforts were made to persuade African Americans to leave the United States and emigrate to . . . other places”, even though other African Americans were already avoiding coming to the U.S.[efn_note]Boswell, supra note 11, at 73. [/efn_note] Meanwhile in 1965, Congress eliminated the nationality-based quota system to try and “equalize immigration opportunities for groups previously subjected to discriminatory immigration laws and practices.”[efn_note]McKanders, supra note 14, at 21. [/efn_note]
The immigration and naturalization laws of the United States have historically discriminated against minorities and people of color. To this day it still does, as Congress has kept restricting admissions into the country through its legislation.[efn_note]Boswell, supra note 11, at 91-92. [/efn_note] For example, the Refugee Act of 1980 aimed to eliminate biases in the asylum-seeking process.[efn_note]Refugee Act of 1980, Pub. L. No. 96-212, 93 Stat. 102; Boswell, supra note 11, at 94. [/efn_note] Nonetheless, the restrictionist period that followed is considered by many commentators as “an example of racial exclusion in one of its most blatant forms” towards Haitian asylum seekers, Muslim individuals, and Cuban refugees. The latter were subjected to indefinite detention because they “were found to be inadmissible and. . . could not be returned to their country because of their country’s refusal to accept them.”[efn_note]Boswell, supra note 11, at 94-95. [/efn_note]
Finally, in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (hereinafter, “IIRAIRA”) was enacted, which increased border enforcement, added new summary exclusion and removal proceedings, as well as included new bars to admissibility.[efn_note]Pub. L. 104–208, 110 Stat. 3009. [/efn_note]
B. Admissibility and Discretion
Individuals that are not U.S. citizens have been historically referred to as aliens in immigration related processes. Such terminology is criticized because “[r]eferring to non-citizens as ‘aliens’ perpetuates and echoes the less-than narrative on immigrants that has been prevalent since the 1800s, where black people were treated as subhuman and inferior to white people.”[efn_note]Tremaine Hemans, The Intersection of Race, Bond, and “Crimmigration” in the United States Immigration Detention System, 22 UDC/DCSL L. REV. 69, 83 (2019). [/efn_note]
The Immigration and Naturalization Act of 1952 lists the classes of aliens (hereinafter, “individuals”),[efn_note]Immigration and Nationality Act §101(a)(3), 8 U.S.C. §1101 (1952). [/efn_note] that are ineligible for admission into the country under section 212.[efn_note]Id. §212(a), 8 U.S.C. §1182. [/efn_note] Some of the reasons listed include health-related grounds, criminal record, security concerns, probability of becoming a public charge, past immigration violations, among others.[efn_note]Id. [/efn_note]
Individuals that wish to enter the U.S. would first need a visa approved by the U.S. Consulate or Embassy.[efn_note]How to Enter the United States, USA.GOV, https://www.usa.gov/enter-us (last visited Mar. 5, 2021). [/efn_note] Then they can present themselves at a Port of Entry (hereinafter, “POE”) —an airport, the southern or northern border, or a naval port— to seek admission into the country, including territories like Puerto Rico. At this point an immigration officer will evaluate the individual’s travel documents and their person and decide —at the immigration officer’s own discretion— if that individual asking to enter the U.S. is in fact admissible or not. But when does this discretion turn into discrimination?
The Federal Government has the power to exclude noncitizens from the country.[efn_note]Ping v. United States, 130 U.S. 581, 603-04 (1889). [/efn_note] It is in its interest to prevent unwanted individuals from entering the country, and said interest “is at its zenith at the international border.”[efn_note]United States v. Flores-Montano, 541 U.S. 149, 152 (2004). [/efn_note] Likewise, the Federal Government argues that “the expectation of privacy is less at the border than it is in the interior.”[efn_note]Id. at 154. [/efn_note] “Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”[efn_note]Carroll v. United States, 267 U.S. 132, 154 (1925). [/efn_note] This intervention does not require officers “to have a warrant, probable cause, or reasonable suspicion when conducting stops . . . at the border or at international port of entries.”[efn_note]Pablo Chapablanco, Traveling While Hispanic: Border Patrol Immigration Investigatory Stops at TSA Checkpoints and Hispanic Appearance, 104 CORNELL L. REV. 1401, 1416 (2019). [/efn_note] Since “the person or item in question ha[s]entered into our country from outside”, the stop is deemed reasonable.”[efn_note]United States v. Ramsey, 431 U.S. 606, 619 (1977). [/efn_note] However, “even at the border, officials are required to have reasonable suspicion for those prolonged detentions that are more intrusive in nature for individuals than the routine detentions that are expected in the border.”[efn_note]See Chapablanco, supra note 31, at 1417 (concluding about United States v. Montoya de Hernández, 473 U.S. 531 (1985)). [/efn_note]
Often, immigration officers will first take notice of travelers’ race and ethnicity.[efn_note]Id. at 1429. For policy considerations, see Secretary Napolitano, Memorandum for Component Heads, DEPARTMENT OF HOMELAND SECURITY, https://www.dhs.gov/sites/default/files/publications/secretary-memo-race-neutrality-2013_0.pdf (last visited Mar. 5, 2021) (“The Department of Homeland Security’s policy is to prohibit the consideration of race or ethnicity in our investigation, screening, and enforcement activities in all but the most exceptional instances.”). [/efn_note] They might also be aware of their behavior around them, especially those they interpret as “‘nervous,’ ‘brisk,’ or ‘furtive.’”[efn_note]Id. [/efn_note] As for accompanied individuals, officers might try “to listen carefully to the way travelers are speaking and to perceive whether they are speaking in a language other than English, English with a ‘foreign accent’ or with a poor ability to speak English.”[efn_note]Id. at 1429-30. For an example of a recent development, see Daniella Silva, 2 American women sue U.S. claiming they were detained after speaking Spanish in Montana, NBC News (February 14, 2019), https://www.nbcnews.com/news/latino/2-american-women-detained-after-speaking-spanish-montana-file-suit-n971716. [/efn_note]
II. Racial Profiling
What is racial profiling? Racial or ethnic profiling is the discriminatory act of targeting a person based on race, ethnicity, religion, or national origin.[efn_note]Racial Profiling, ACLU, https://www.aclu.org/issues/racial-justice/race-and-criminal-justice/racial-profiling (last visited Mar. 5, 2021). See also, What is racial profiling?, DEPARTMENT OF HOMELAND SECURITY, https://www.cbp.gov/faqs/what-racial-profiling (last visited Mar. 5, 2021). [/efn_note]
What society identifies as race . . . is the result of social structures, historical truths, and attitudes that have shaped society’s way of thinking, resulting in some racial groups advancing at the expense of others. This advancement is a result of privileges obtained based on markers of race. These markers of race mean nothing until they are given meaning, and then that meaning is attached to social constructions and laws that allocate these privileges based on the racial markers. U.S. immigration laws were born out of this manifestation of racism.[efn_note]Hemans, supra note 22, at 70. [/efn_note]
An individual’s race or ethnicity is not something one has control over, nor is it a “morally relevant characteristic.”[efn_note]Ilya Somin, Immigration, Freedom, and the Constitution, 40 HARV. J. L. & PUB. POL’Y 1, 3 (2017). [/efn_note] This also affects “millions of native-born citizens whose sole crime is that they happen to be of the same race or ethnicity as many undocumented immigrants,”[efn_note]Id. [/efn_note] from the 328,239,523 people estimated to live in the U.S.[efn_note]U.S. Census Bureau,Quick Facts, CENSUS.GOV, https://www.census.gov/quickfacts/fact/table/US/RHI725219#RHI725219 (last visited Mar. 5, 2021). [/efn_note]
The United States Census Bureau does not define Hispanic origin. They state that people who identify as Hispanic, Latino, or Spanish may be any race, plus that their origin “can be viewed as the heritage, nationality group, lineage, or country of birth of the person or the person’s parents or ancestors before arriving in the United States.”[efn_note]U.S. Census Bureau, Hispanic or Latino Origin, CENSUS.GOV, https://www.census.gov/quickfacts/fact/note/US/RHI725218 (last visited Mar. 5, 2021). [/efn_note] This might raise a concern for the approximately 19 percent of the population in the U.S. who have reported to be Hispanic or Latino for the 2019 Census,[efn_note]U.S. Census Bureau supra note 41. [/efn_note] including Puerto Ricans. Thus, this impacts the lives of those who have a Hispanic appearance, because the definition is so vague, that “it is not a surprise that immigration law enforcement officers are unable to apply the classification objectively as required by the totality of the circumstances.”[efn_note]Chapablanco, supra note 31, at 1453. [/efn_note]
Another recent instance of racial profiling and its injustice is the Trump administration’s immigration policies “that attempted to exclude immigrants of color . . . by signing Executive Orders that restrict immigration from Africa, the Middle East, Central America and Latin America.”[efn_note]McKanders, supra note 14, at 21. [/efn_note]
Puerto Ricans also face microaggressions by contemptuously being called Mexicans and having their government-issued identification questioned or invalidated by mainland officials.[efn_note]For example, see Tribune Media, Ohio police officer suing his own department for discrimination, WQAD8 (Mar. 15, 2019), https://www.wqad.com/article/news/local/drone/8-in-the-air/ohio-police-officer-suing-his-own-department-for-discrimination/526-5598d700-f111-4060-bc44-405413c773e3; see also Karen Zraick, He Wanted Cold Medicine, but CVS Rejected His Puerto Rican ID, THE NEW YORK TIMES (Nov. 4, 2019), https://www.nytimes.com/2019/11/04/us/cvs-puerto-rico-id-immigration.html. [/efn_note] This was the case of Eduardo Caraballo, born in Puerto Rico but raised in Chicago, who spent three days in jail facing deportation charges.[efn_note]Alex Perez & B.J. Lutz, American Citizen Faced Deportation, NBC CHI (Jun. 30, 2011), http://www.nbcchicago.com/news/localleduardo-caraballo-puerto-rico-deportion-94795779.html. [/efn_note] When asked specific questions about Puerto Rico, Caraballo could not answer, “mostly because he moved to the mainland when he was [eight]months old and has only been back to Puerto Rico once since birth.”[efn_note]Id. [/efn_note] He said: “I’m pretty sure they know that Puerto Ricans are citizens, but just because of the way I look — I have Mexican features — they pretty much assumed that my papers were fake.”[efn_note]Id. [/efn_note] Caraballo concluded by stating that “[i]mmigrations should analyze the way they judge people. They can’t just judge people by their color or their features, by the way they look, they should actually investigate thoroughly, and they should do that before they put the hold on somebody.”[efn_note]Id. [/efn_note] This statement is supported in United States v. Brignoni-Ponce, where the Supreme Court stated that “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.”[efn_note]United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975). [/efn_note]
A. Electronic Profiling at the Borders
The U.S. has two international land borders: the southern Mexico-U.S. border and the northern Canada-U.S. border. Historically, both borders have had opposite treatment towards their citizens asking for admission into the U.S. The Mexican border is highly scrutinized and observed; whereas the Canadian border has had lax control and has been low maintenance. Could this be part of a profiling scheme from the U.S.?
The Department of Homeland Security (hereinafter, “DHS”) has been modernizing the admission process into the U.S. throughout the borders by implementing a variety of technology for different security purposes.[efn_note]U.S. Customs and Border Protection, Border Patrol History, DEPARTMENT OF HOMELAND SECURITY (Jul. 21, 2020), https://www.cbp.gov/border-security/along-us-borders/history. [/efn_note] In general, DHS Science and Technology Directorate has been working to employ “combinations of process and technology improvements”[efn_note]Port of Entry – People Screening, DEPARTMENT OF HOMELAND SECURITY (Sep. 27, 2017), https://www.dhs.gov/publication/st-port-entry-people-screening-fact-sheet. [/efn_note] that will help “securely facilitate the movement of people”[efn_note]Id. [/efn_note] throughout different POE’s with People Screening. They argue that People Screening is improving operations and that “its unique blend of technology, engineering, process improvement, human factors and biometrics capabilities . . . [e]nsure[s]integrity of the border and immigration system.”[efn_note]Id. [/efn_note] “Screening and authorization systems perform two categories of interrelated, mutually complementary ‘sorting’ functions”[efn_note]Kalhan, supra note 1, at 33. [/efn_note] that help discern who should be denied entry, who are to be closely scrutinized, and it also facilitates efficient authorization to those individuals who present little to no risk.[efn_note]Id. [/efn_note]
The American Civil Liberties Union (hereinafter, “ACLU”) has questioned and criticized the government’s security technology approach as “gimmicks and ineffective identity-based security”[efn_note]Border Security Technologies, ACLU, https://www.aclu.org/other/border-security-technologies (last visited Mar. 5, 2021). [/efn_note] since its use has affected Americans in their domestic lives. One of the ACLU’s main concern is the invasion of privacy to civilians who live near the borders encounter.[efn_note]Id. [/efn_note] Because these technologies are so sensitive and store information for so long, some individuals might not be aware that they are being monitored and therefore, —due to poor programming— that they can be subject to identity theft and government or private tracking.[efn_note]Id. [/efn_note] This is an example of how security and immigration tactics can become a burden on private individuals, like U.S. citizens or lawfully admitted individuals.
The northern border —the longest in the world—,[efn_note]Madhumitha Jaganmohan, Global land border length between countries, STATISTA (Jan. 29, 2021), https://www.statista.com/statistics/1103985/border-length-between-countries/. (“The international land border between the United States and Canada is the longest in the world at almost 8,900 kilometers [or 5,525 miles]. It includes the border between Canada and the continental U.S. as well as the border between Alaska and northern Canada.”). [/efn_note] was of freer movement for Canadians, as the Free Trade Agreement (FTA) between U.S. and Canada, the General Agreement on Tariffs and Trade (GATT), and the North American Free Trade Agreement (NAFTA) provided them with the liberty of less scrutiny of admissibility and granting of visas to facilitate business.[efn_note]Ellen G. Yost, Recent Developments in U.S. Immigration Laws Affecting the Entry of Canadians into the United States, 24 IMMIGR. & NAT’LITY L. REV. 391 (2003). [/efn_note] But, since 2001, security-driven anxieties have given way to the Mexicanization of the U.S.-Canada border.[efn_note]Kalhan, supra note 1, at 13 (citing Peter Andreas, The Mexicanization of the US-Canada Border: Asymmetric Interdependence in a Changing Security Context, 60 INT’L J. 449 (2005)). [/efn_note] Canadian citizens that would have normally been admitted to the U.S. have been denied entry under the IIRAIRA grounds of inadmissibility.[efn_note]Yost, supra note 62, at 406. [/efn_note] Because of new border control technologies, there has been an inconsistency in enforcement, which has brought “concerns about discrimination, and general lack of knowledge abounding, civil rights groups have harshly criticized the program as a form of racial profiling.”[efn_note]Id. at 409. [/efn_note] One of the most recent technologies that the DHS has implemented is the Slash CameraPole, which relies on thermal sensors, infrared cameras, and advanced motion detection algorithms to capture images.[efn_note]Snapshot: Protecting our Northern Border with the Slash CameraPole, DEPARTMENT OF HOMELAND SECURITY (Jan. 30, 2020), https://www.dhs.gov/science-and-technology/news/2020/01/30/snapshot-protecting-our-northern-border-slash-camerapole. [/efn_note]
In contrast, President Trump campaigned to Build the Wall at the U.S.-Mexico border,[efn_note]The Wall – an in-depth examination of Donald Trump’s border wall, USA TODAY, https://www.usatoday.com/border-wall/ (last visited Mar. 5, 2021). [/efn_note] but now proponents incline towards a smarter wall.[efn_note]Shirin Ghaffary, The “smarter” wall: How drones, sensors, and AI are patrolling the border, VOX (Feb. 7, 2020) https://www.vox.com/recode/2019/5/16/18511583/smart-border-wall-drones-sensors-ai. [/efn_note] DHS has implemented “advanced lighting, motion sensors, remote cameras, and mobile surveillance systems, and DHS has deployed a fleet of unmanned aerial vehicles to monitor coastal areas and land borders”[efn_note]Kalhan, supra note 1, at 41-42. [/efn_note] to deter immigrants from entering the U.S. unlawfully.[efn_note]Ghaffary, supra note 68. [/efn_note] Most of the drone technology utilized was designed for military use and is expensive to operate per flight hour.[efn_note]Id. [/efn_note] Drone technology is one of the many practices that has been considered to push the border outside of the U.S. because the interventions occur before individuals reach American territory or POEs.[efn_note]Kalhan, supra note 1, at 60. [/efn_note] Nonetheless, this has not reduced the “aggressive immigration surveillance and control” at the land borders.[efn_note]Id. at 63. [/efn_note]
One of the electronic systems developed specifically for the U.S.-Mexico border surveillance was DHS Automated Biometric Identification System (IDENT).[efn_note]Id. at 30. [/efn_note] This database network stores biographic and biometric information and is now used as DHS’s main bio system for a wide range of immigration and security-related controls.[efn_note]Id. [/efn_note] It is believed that the automatization of immigration policing should “reduce the incidence of errors based on police officers’ lack of knowledge of immigration law or invidious exercises of discretion on the basis of race, ethnicity, or national origin”, eliminating the possibility of discrimination during the discretion process while petitioning to enter the U.S.[efn_note]Id. at 64. [/efn_note] But when technologies are developed with a specific human target in mind instead of a specific immigration concern, are they are truly eliminating their prejudice or their discrimination?
III. Discrimination in Numbers
The DHS determined that 287,977 individuals were inadmissible during the year 2019.[efn_note]Table 37. Aliens Determined Inadmissible by Region and Country of Nationality: Fiscal Years 2017 to 2019, DEPARTMENT OF HOMELAND SECURITY (October 8, 2020), https://www.dhs.gov/immigration-statistics/yearbook/2019/table37. [/efn_note] Fifty three percent (53%) of those individuals were asking for admission from the North American region.[efn_note]Id. [/efn_note] Twenty eight percent (28%) were from Asia.[efn_note]Id. [/efn_note] The remaining nineteen percent (19%) of inadmissible individuals were from Europe, South America, Africa, and Oceania.[efn_note]Id. [/efn_note] Meanwhile, 228 of the reported individuals came from an ‘unknown’ country.[efn_note]Id. [/efn_note] In general, the highest inadmissibility rates in 2019 were from: Mexico (78,888); Philippines (31,002); Canada (24,696); Cuba (22,367); China (20,295); Honduras (8,609); India (8,531); Venezuela (8,178); Guatemala (7,116); and Brazil (3,548).[efn_note]Id. [/efn_note]
The individuals determined inadmissible from nine of the ten of the highlighted countries share two main characteristics: speaking a language other than English —such as Spanish, Filipino, Mandarin, Hindi, Portuguese, among others—, and having Asian or Latin American physical appearances and traits. With Canada being the third highest country with determined inadmissible individuals, we must remember that they share a land border with the U.S., which makes presenting themselves a POE accessible, and therefore being found inadmissible frequently. Also, around twenty two percent (22%) of Canada’s population is composed of immigrants,[efn_note]Statistics Canada, Focus on Geography Series, 2016 Census, Statistics Canada (2017), https://www12.statcan.gc.ca/census-recensement/2016/as-sa/fogs-spg/Facts-can-eng.cfm?Lang=Eng&GK=CAN&GC=01&TOPIC=7. [/efn_note] who may have tried to enter the U.S. but were denied such entry. These characteristics may be some of the factors that immigration officers consider —and has been shown they consider—[efn_note]See Chapablanco, supra note 31, at 1429-30 (describing what immigration officers first observe about travelers). [/efn_note] when deciding whether to let an individual set foot in the U.S.
On the other hand, there are individuals who were returned —not deported— to their countries. Individuals who were returned are those with an inadmissible or deportable confirmed movement out of the U.S. not based on an order of removal.[efn_note]Table 40. Aliens Returned by Region and Country of Nationality: Fiscal Years 2017 to 2019, DEPARTMENT OF HOMELAND SECURITY (October 8, 2020), https://www.dhs.gov/immigration-statistics/yearbook/2019/table40. [/efn_note] In other words, these individuals left voluntarily because they were not legally admitted, or withdrew their admission petition because they were notified that they were inadmissible. During the 2019 fiscal year, 171,445 individuals were returned to their countries.[efn_note]Id. [/efn_note] Forty-five percent (45%) of individuals were from the North American region, predominantly those from Mexico (49,633) and Canada (18,527).[efn_note]Id. [/efn_note] Following are those from Asia (39%) and Europe (10%), with the highest number of removals from the Philippines (27,618), China (17,845), and India (5,437), plus Ukraine (4,366), Russia (2,617), and the United Kingdom (1,824).[efn_note]Id. [/efn_note] South America, Africa and Oceania combined constitute the remaining six percent (6%) of removals.[efn_note]Id. [/efn_note] Within them, the countries with the highest removals are Peru (1,549), Colombia (991), Brazil (847), Venezuela (793), and Nigeria (569).[efn_note]Id. [/efn_note] The 160 individuals who were removed during 2019 were reported to come from an unknown country.[efn_note]Id. [/efn_note]
These types of returns can be considered as another tactic to push the U.S. border outside of the country. For instance, section 235A of the Immigration and Nationality Act establishes preinspection stations in foreign airports that are identified as “serving as last points of departure for the greatest numbers of inadmissible alien passengers who arrive from abroad by air” at POEs within the U.S.[efn_note]The Immigration and Nationality Act §235A, 8 U.S.C. §1225a. [/efn_note] Some of these preinspection airports are located in countries with high and equalized percentages of both inadmissibility and returns of individuals —like North America, Asia, and Europe— from Canada, the Bahamas, Ireland and the United Arab Emirates.[efn_note]Susan Holliday, Cleared for Landing: CBP preclears travelers abroad to ease U.S. entry, U.S. CUSTOMS AND BORDER PROTECTION, https://www.cbp.gov/frontline/frontline-preclearance (last visited March 2, 2021). [/efn_note]
Whereas individuals coming in from predominantly white countries, like Argentina and Uruguay in South America, and Denmark, Estonia, Finland, Switzerland and Iceland in Europe have low inadmissibility and return percentages in comparison to other countries that surround them.[efn_note]See Table 37. Aliens Determined Inadmissible by Region and Country of Nationality: Fiscal Years 2017 to 2019, supra note 77 for inadmissibility rates; see Table 40. Aliens Returned by Region and Country of Nationality: Fiscal Years 2017 to 2019, supra note 85 for return rates. [/efn_note] This raises a series of questions: (1) Do diplomatic relations play a role on admissibility rates into the U.S.?; (2) Are regional socioeconomics a factor taken into consideration by immigration officers?; and (3) Is similarity in physical appearance enough to cross the border? An affirmative answer on such questions would be alarming. Immigration officers do have standard and procedural elements to evaluate, but they also carry biases and discretion of their own, aspects that could set in motion possible discriminatory scenarios.
A.Presidential Numbers
High inadmissibility and return rates are not new; the discretion, and possible discrimination, that have influenced those numbers either. The DHS still has a duty “to secure the nation from the many threats we face” and to “[keep]America safe.”[efn_note]About DHS, DEPARTMENT OF HOMELAND SECURITY (February 26, 2021) https://www.dhs.gov/about-dhs. [/efn_note] Let us examine the past decade of immigration statistics, starting with President Barack Obama’s administration.
The Obama administration determined inadmissible a total of 862,632 individuals during the 2009-2012 presidential term, and 959,970 individuals during the 2013-2016 presidential term.[efn_note]Table 36. Aliens Determined Inadmissible: Fiscal Years 2005 to 2019, DEPARTMENT OF HOMELAND SECURITY (October 28, 2020), https://www.dhs.gov/immigration-statistics/yearbook/2019/table36. [/efn_note] The inadmissibility rates ranged from 195,804 individuals in 2012 up to 274,617 in 2016.[efn_note]Id. [/efn_note] As well, during Obama’s first presidential term, 1,607,519 individuals returned to their country, while during the second term only 578,938 were reported to have returned.[efn_note]Table 39. Aliens Removed or Returned: Fiscal Years 1892 to 2019, DEPARTMENT OF HOMELAND SECURITY (October 28, 2020), https://www.dhs.gov/immigration-statistics/yearbook/2019/table39. [/efn_note] Returns reduced by almost sixty four percent (64%) by Obama’s second presidential. Furthermore, these numbers reduced yearly, starting at 582,567 individuals in 2009 as the highest rate, and plummeting to 106,548 individuals in 2016.[efn_note]Id. [/efn_note]
In contrast, President Donald Trump’s administration has reported to determine inadmissible a total of 786,162 individuals from fiscal years 2017-2019,[efn_note]Table 36. Aliens Determined Inadmissible: Fiscal Years 2005 to 2019, supra note 96. [/efn_note] with the 2020 fiscal year numbers to be reported on 2021.[efn_note]Yearbook of Immigration Statistics, DEPARTMENT OF HOMELAND SECURITY (October 27, 2020), https://www.dhs.gov/immigration-statistics/yearbook (Specifying that “[y]earbook tables are released as they become available. A final PDF is released in September of the following fiscal year.”). [/efn_note] Individuals determined inadmissible started at 216,257 in 2016 and went up to 287,977 in 2019,[efn_note]Table 36. Aliens Determined Inadmissible: Fiscal Years 2005 to 2019, supra note 96. [/efn_note] for a total increase of thirty three percent (33%). During the three years of the Trump Presidency that have been reported as of now, 432,080 individuals have returned to their country of origin.[efn_note]Table 39. Aliens Removed or Returned: Fiscal Years 1892 to 2019, supra note 100. [/efn_note] These numbers escalated through the years, starting at 100,965 individuals in 2017 and reaching 171,445 during 2019,[efn_note]Id. [/efn_note] representing an almost seventy percent (70%) increase. We must consider that the U.S. imposed travel restrictions due to the COVID-19 pandemic, therefore numbers for admissibility and returns could significantly drop for the 2020 Trump’s administration immigration statistics.
Final Comments
The textual discriminatory immigration practices have changed significantly through time with the elimination of bills and bans that targeted specific social and ethnic groups. However, we have confronted a new wave of discrimination during the Trump administration at the borders and inside the U.S., with approved removals of any unauthorized individual present in the country.[efn_note]Executive Order 13768, Enhancing Public Safety in the Interior of the United States, (January 25, 2017), https://www.federalregister.gov/documents/2017/01/30/2017-02102/enhancing-public-safety-in-the-interior-of-the-united-states. [/efn_note] This is expected to change since President Trump lost the 2020 election race.
On November 7, 2020 former Vice President under the Obama administration, Joseph Biden, was elected President of the U.S.[efn_note]Jonathan Martin & Alexander Burns, Biden Wins Presidency, Ending Four Tumultuous Years Under Trump, The New York Times (November 18, 2020), https://www.nytimes.com/2020/11/07/us/politics/biden-election.html. [/efn_note] This represents a new era of immigration policies as Biden’s immigration plan states that it will “[t]ake urgent action to undo Trump’s damage and reclaim America’s values, [m]odernize America’s immigration system, [w]elcome immigrants in our communities, [r]eassert America’s commitment to asylum-seekers and refugees, [t]ackle the root causes of irregular migration, [i]mplement effective border screening.”[efn_note]The Biden Plan for Securing Our Values as a Nation of Immigrants, JOE BIDEN, https://joebiden.com/immigration/ (last visited March 5, 2021). [/efn_note] Biden’s plan for the first hundred days in office includes a proposal to reverse Trump’s discriminatory administration policies, like the Muslim ban, the public charge rule, and the cruel treatment of children in cages at the border.[efn_note]Id. [/efn_note]It will also incorporate training for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) personnel for them to “abide by professional standards and [be]held accountable for inhumane treatment.”[efn_note]Id. [/efn_note]
In relation to admissibility into the U.S., Biden’s plan contemplates implementing effective border screening “that will actually strengthen our ability to catch these real threats by improving screening procedures at our legal ports of entry and investing in new technology,” like cameras, sensors, x-ray machines and fixed towers;[efn_note]Id. [/efn_note] nothing that the borders have not seen before.Biden’s plan also considers cross agency collaboration plus building partnerships with Mexico and Canada in order to share capabilities and information for greater security of the countries.[efn_note]Id. [/efn_note]
We cannot expect for immigration policies and border
discrimination to change overnight. These operations, if proposed and then
approved by Congress, will take time. It will be a matter of years before we
see changed behavior from immigration agencies and officers, as discriminatory
projects are repealed, and new ones are implemented. Even so, this does not
constitute a guarantee of modified behavior, as discussed before, since
immigration processes are based on the exercise of the ample discretion
delegated to immigration officers, which varies depending on their biases and
beliefs, although it should not be so. All the same, at the end of the day,
racial profiling should not constitute a reason as to why an individual is
denied admission into the U.S., let alone be removed from the country. Beyond
reforms to the many discriminatory immigration practices, the admission process
into the U.S. must be restructured to guarantee a non-targeted, non-racial
profiling proceeding for any individual. When traveling to the U.S.,
individuals should be held to the same standards and they should not face
imposed burdens because of who they are, how they look and where they come
from.
*For this work, we limited the discussion to the available data as one of the displays of institutional racism in immigration processes and how it affects people of color when trying to enter the United States of America.
**Mónica Lisete Hernández Santiago is a fourth-year law student at the University of Puerto Rico Law School and writer forIn Rev. / I would like to thank Professor Fernando Colón-Navarro for his guidance during the research process, andProfessor Fernando Zambrana Avilés for his teachings, discussion, and feedback.
