If Black Americans were to seek asylum, they would easily qualify
I have evaluated countless refugee cases. The oppression Black Americans face in the US would qualify as persecution.
People hold signs on Brooklyn Bridge during a protest against police brutality and racism in the aftermath of the death of George Floyd in New York, US, on June 13, 2020 [Caitlin Ochs/Reuters]
Refugee protection is less about vulnerability and more about oppression. This is at least what I have long believed, having worked in the field for more than 15 years.
When we speak of refugees, we often speak of their vulnerabilities and the responsibility to safeguard their rights. There is truth in that, but in real terms, people become refugees because they are oppressed. Their rights are violated because of discrimination.
The 1951 Refugee Convention defines a refugee as someone who has left their country due to a well-founded fear of persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group, and due to that fear is unable or unwilling to seek protection from their country.
By no means do I advocate for Black Americans to leave the United States, but assuming a Black American were to seek asylum abroad, the social and political unrest that has rocked the country just these past few weeks alone would add to a trove of evidence to support any claims of “well-founded fear” for this person’s safety and wellbeing at home.
I have heard countless refugee claims during protection and resettlement interviews I have done for the US government and the United Nations Refugee Agency, and read through many pages of information about the countries of origin that substantiated the testimonies of claimants. I can tell you what we all collectively witnessed in the murder of George Floyd the subsequent numerous acts of police brutality in the ensuing protests and systematic state treatment of Black Americans could certainly qualify as a legitimate basis for most asylum claims.
The stories I have heard from refugees who were racially or ethnically profiled, subjugated to systems of targeted oppression, who feared imprisonment and were jailed, sometimes repeatedly, facing mistreatment and torture by police and prison guards are quite similar to the stories of so many Black Americans.
Their persecution was on the basis of race. And their persecutor was the state or agents of the state, thus rendering the authorities unwilling or unable to offer protection.
The UN High Commissioner for Human Rights has called out disproportionate and unnecessary violence by police during the protests following the murder of George Floyd, as well as the more than 200 attacks on journalists and infringements on the right to freedom of expression.
In a bold and rare display of unanimity, 47 UN human rights experts issued a statement on “systemic racism that produces state-sponsored racial violence, and licenses impunity for this violence” in the US.
Perhaps nowhere is American racial inequity laid barer than in its criminal justice system. A searing report from The Sentencing Project to the UN found the US in violation of Article 2 and 26 of the International Covenant on Civil and Political Rights for pursuing policies that allow racial disparities in its criminal justice system.
In 2016, 27 percent of arrests in the US were of Black Americans – double their share of the population. Black minors, who are 15 percent of the child population, accounted for 35 percent of juvenile arrests.
Unsurprisingly, in sentencing as well, with Black prisoners’ sentences nearly 20 percent longer than those of white prisoners.
Even when progress is supposedly made, it is dubious at best. Statistics from 2018 show a 34 percent decrease in the imprisonment rate for Black Americans since 2006, but they only accounted for inmates sentenced to a year or more in state or federal prison and excluded shorter sentences and inmates held in local jails.
Even with varying theories accounting for the decrease and factoring for differences in data, the lower imprisonment rates in 2018 did not depict a less oppressed race. Black Americans remained the most incarcerated population – making up 33 percent of the sentenced prison population in 2018, despite being only 12 percent of the adult population.
Proportionally, this means Black people are nearly twice as likely to be imprisoned as Hispanic people and five times more likely than white people. One in 10 Black children spends part of their childhood with one parent behind bars.
Racial disparities in the juvenile justice system are heading in the wrong direction. Between 2003 and 2013, the rate of Black youth incarceration jumped from being 3.7 times higher than that of white youth to 4.3 times higher.
The Guardian’s database of police killings in the US revealed that the number of young Black men killed in 2015 was five times higher than that of white men of the same age.
In 2014, the UN expressed concerns when the US failed to bring to trial the police officers responsible for the deaths of Michael Brown and Eric Garner. The Special Rapporteur on Human Rights said the decision lent to a pattern of impunity where excessive force is used on Black American victims.
In 2016, following the deaths of Philando Castille in Minnesota and Alton Sterling in Louisiana, the UN body on human rights said excessive use of force by police in America against African Americans was becoming an everyday occurrence.
After an official visit in January 2016, the UN observed “alarming levels of police brutality and excessive use of lethal force by law enforcement officials committed with impunity”. Among its recommendations were calls to improve investigations of extrajudicial killings by police forces.
As noted in the 1968 landmark report by the Kerner Commission, convened after the 1967 unrest in Detroit, racial disparities in the US criminal justice system go hand in hand with “culturally embedded forms of racial discrimination” in Black communities seen in inadequate housing, high unemployment, voter suppression and access to upward mobility. Today, Black Americans are twice as likely to be unemployed than the rest of America.
What accounts for mistaken links between race and crime is more an outcome of urban poverty and racialized policing, which forces individuals into a vicious cycle of crime and incarceration. At the same time, racial bias – implicit and explicit – causes white Americans to overestimate crime committed by Black people, contributing to racial profiling. The fact that African Americans are victims of crime disproportionately more than other groups is usually overlooked.
Social mobility is denied in numerous ways to Black citizens and Black communities, which are deprived of social services. Redlining – policies which limit access to means of upward mobility such as banking, insurance, better schools and housing, through the practice of districting neighbourhoods – although banned, still affects Black communities.
The landmark 1988 Atlanta real-estate investigation, which revealed wide lending disparities between white and Black neighbourhoods of similar income levels, essentially highlighting racist practices that denied Black Americans access to bank loans and thus better housing and schools, is one of the numerous examples of how institutional oppression affects present and future generations.
Systemic income inequality has made white Americans 20 times richer than Black Americans. Black communities face stark inequalities in both healthcare and education Implicit bias and racial disparities cause Black Americans to receive lower-quality healthcare than white Americans. In schools in minority and Black communities that are chronically underfunded, Black students are suspended and expelled from school at a rate three times higher than white students and school policing makes Black students more vulnerable to the criminal justice system and higher dropout rates.
The voting rights of Black communities are diminished in half the country or even suppressed in some states. Recent state elections in the US highlight failures such as poll worker shortages, long lines and processing delays that are designed to disproportionately impact Black Americans and people of colour.
White nationalism, on the rise since the election of Donald Trump, extremism and hate groups are further threats to Black Americans and minority groups. In 2018, the US Commission on Civil Rights found a lack of civil rights protections across the country on the basis of race.
In 2019, 90 civil society groups urged the US to invite a fact-finding mission from the UN Special Rapporteur on racism. The last such UN mission in 2008 found that “the historical, cultural and human depth of racism still permeates all dimensions of life of American society”.
The US is party to the Convention on the Elimination of Racial Discrimination and yet it lags behind in implementation and its long-overdue periodic report to the UN on its obligations to uphold those commitments is perhaps emblematic of the problem.
It should be clear that leaving one’s country is one of many requirements that must be met by anyone seeking refugee status, and I am by no means whatsoever, advocating for Black Americans to do that as this country belongs equally to them.
Rather this article is meant to illustrate that should Black Americans seek international protection, they could very well receive it given their country’s disastrous human rights record and the pervasive institutional discrimination they suffer.
That should give each of us pause, the country pause and hopefully pause, if not halt, any questions about whether the US has a racism problem.
The US may pride itself on being a bastion of human rights, but it is clear Black Americans are not receiving their fair treatment, access or share. The country needs to undertake major policy reforms immediately if it is to wipe this shameful stain from its democratic reputation.