Abstract

Excerpted From: Annaelle Clara Lafontant, Black Beyond Borders: An Analysis of the 1996 Immigration Laws and the Invisibility of Black Immigrants, 17 Georgetown Journal of Law & Modern Critical Race Perspectives 111 (2025) (117 Footnotes) (Full Document Requested)

The histories of Black immigrants and African Americans intertwine throughout American history. As early as the beginning of the twentieth century, Black immigrants, namely those from the Caribbean, had established communities within the United States in cities such as New York City, Hartford, and Miami. Although this immigration has occurred for over a century, broader conversations about immigration typically exclude Black immigrants, as these conversations usually center non-Black people from Latin America. The intersection of their identities as both immigrant and Black, however, places Black immigrants in a precarious condition. Black immigrants, particularly undocumented immigrants, navigate an immigration system designed to exclude them, while their Blackness increases the likelihood of their surveillance and criminalization.

The United States’s current immigration system, based primarily on the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA), unfairly persecutes Black migrants by using criminal law decisions as grounds for detention and deportation. Since President Lyndon B. Johnson declared a “war on crime” in 1965, legislative and popular media narratives surrounding crime have resulted in the dehumanization and criminalization of Black people, framing them as threats to “ordinary Americans.” President Richard Nixon continued this “war on crime” and stressed the importance of “law and order.” This language, while facially neutral, targeted urban communities and Black Americans. The era’s emphasis on the “war on crime” demonstrated a national interest in the policing and criminalization of Black people, who, amidst the civil rights movement, were conceptualized as threats to American society. As identified by migration scholar Harsha Walia, “[t]he convergence of 'tough on crime’ and 'tough on immigration’ sustains racialized control” and ensures the existence of a compliant labor force through the containment of surplus labor.

This Paper will tie anti-Black carceral logics to those found in the immigration system, highlighting the connections between the criminal legal system and the immigration system. I use the phrase anti-Black carceral logics to define the particular discourse surrounding carcerality and criminalization that has resulted in the mass criminalization, incarceration, and policing of Black communities. Further, this Paper highlights how the State continues to use racist logics that emerged during the transatlantic slave trade to continue to harm and subjugate Black people, maintaining a system of global racial capitalism. To draw the comparison between the criminal law system and the immigration system, this Paper will analyze IIRIRA and AEDPA, known together as the 1996 Immigration Laws, through a Critical Race Theory lens. In doing so, this Paper will underscore how these acts, in tandem with the 1994 Crime Bill, result in the detention and deportation of Black migrants at higher rates than non-Black migrants.

Part I situates Blackness as a global concept to highlight how power structures have defined the Black experience both within and outside the United States. This section underscores how the United States has subjugated Black foreigners since its founding. Part II argues that the criminal legal system is a badge and incident of slavery, as it disproportionately impacts those who descend from enslaved people and relegates them to a status of civil/social death. Part III highlights how contemporary immigration legislation disproportionately impacts Black migrants, arguing that the system, as it exists today, represents an afterlife of slavery, as coined by African American studies scholar Saidiya Hartman. Here, I analyze how the immigration system employs anti-Black carceral logics to deport and detain migrants. Part IV argues for abolishing immigration detention and deportation as they currently exist by utilizing a framework of abolition constitutionalism based on badges and incidents of slavery.

Finally, this Paper concludes with an overview of the intersectional nature of the Black migrant experience while emphasizing the importance of a positive abolitionism, which creates new institutions and practices that permit human flourishing. Thus, this Paper underscores the connections between the prison system and the immigration system, ultimately calling for the abolition of the current immigration system to create a new system where Black life is not inherently criminalized and subjugated.

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The United States’s immigration system disproportionately impacts Black migrants, who most often face the criminalization that IIRIRA and AEDPA require. Achieving Black liberation necessitates a concerted effort to advance the rights and liberties of noncitizens as well. When Blackness is understood as a global concept, it becomes evident how systems of power will find different ways to marginalize those marked Black, regardless of their ties to a specific nation-state. To thoroughly conceptualize Black liberation, one must understand the plight of Black migrants as integral to the experience of all Black people within the United States. Abolition constitutionalism provides the tools not only to understand how the immigration system is built using logics of slavery, but provides us with tools to advocate for and litigate for a world without a criminalized immigration regime or detention centers--in which Black people achieve freedom from the afterlives of slavery.