Ismail* is an unaccompanied child from Ghana held in prolonged adult immigration detention after Immigrations and Customs Enforcement used racially biased pseudoscience to argue that his bones were too large to belong to a minor. Haruna* is a man with mental disabilities deported to the Gambia due to convictions for failing to pay $2 subway fare, picked up at the height of the New York Police Department’s notorious “stop and frisk” program, which a federal judge ruled unconstitutional upon findings of racial profiling of Black and Latino men. Both appeared in immigration court “pro se”—without an attorney—and were ordered deported when an Immigration Judge relied on evidence from criminal and immigration enforcement that was tainted by systemic racial bias.

Their stories are only two that appear in an amicus brief filed before the Board of Immigration Appeals on August 19, 2024 by Black Alliance for Just Immigration, Haitian Bridge Alliance, RFK Human Rights, and National Immigration Project. The brief argues that Immigration Judges have a duty to develop the record of systemic racial bias faced by pro se Black and other respondents of color. 

For pro respondents, Immigration Judges play a vital role in ensuring fairness in court by developing the record with relevant facts that might support a legal right to remain in the United States. Nationwide, over 70 percent of respondents in immigration proceedings appear pro se, facing a U.S. government attorney who is arguing for their deportation. The stakes can be life-or-death: permanent banishment and deportation to persecution and torture. 

But unacknowledged systemic racial bias in criminal and immigration enforcement compromises the fairness and accuracy of Immigration Court proceedings for pro se respondents. People of color, and especially Black people, face systemic racial bias that makes them more likely to be arrested, convicted, deported, and harshly punished than similarly situated white people, absent evidence that people of color are more likely to offend. 

Immigration judges who rely on evidence tainted by systemic racial bias, like police reports or disciplinary records from immigration detention, are more likely to make unfair and inaccurate decisions on eligibility for release from immigration detention or relief from deportation. To ensure a full and fair hearing, Immigration Judges should develop the factual record of systemic racial bias faced by pro se Black and other respondents of color.

*Names were changed to protect privacy.