Editor’s Note: This article is the next installment of our Symposium on AI and Human Rights, co-hosted with the Promise Institute for Human Rights at UCLA School of Law.
There is growing acknowledgment of the risks that AI technologies — those that can “differentiate, rank, and categorize” data, behaving intelligently to think, predict, and act with some degree of autonomy — pose, especially for already marginalized people. Yet the proliferation of AI technology continues largely unchecked, including in the context of border and immigration enforcement. This undermines migrants’ human rights including, as described by the former UN Special Rapporteur on Racism, through its “xenophobic and racially discriminatory impacts…on migrants, stateless persons, refugees and other non-citizens.”
In a recent landmark thematic hearing on human mobility and structural racism at the Inter-American Commission on Human Rights (IACHR), civil society organizations — including my own, the Promise Institute for Human Rights at UCLA School of Law, jointly with the Black Alliance with Just Immigration (BAJI) — made submissions arguing that the use of border technologies by the United States in immigration enforcement exacerbates the racial discrimination and abuse that Black migrants already face in their migration journeys, including through deterrence and border externalization policies. As we argued before the Commission, it is essential that a racial justice lens shape the development of U.S. laws, policies, and practices related to border technology, to avoid intensifying the racial discrimination already at the heart of the U.S. immigration system and its harmful impacts on Black migrants.
Racism in U.S. Immigration Laws, Policies, Practices, and Enforcement
Structural racism shapes migrants’ journeys and experiences of immigration enforcement in the Americas, with particularly harmful impacts on Black migrants. As Black African migration (as well as Haitian migration) to/through South America has increased in recent years, successive states have enacted policies that impede their movement and ability to reach and seek asylum in the United States. The United States has adopted various border externalization policies that prevent migrants from crossing the U.S.-Mexico border, such as “Remain in Mexico” and Title 42, which have been found to violate the international right to asylum and the principle of non-refoulement found in the 1951 Refugee Convention; more recently, the Biden administration enacted another “asylum ban” that restricts access to the asylum process. Black migrants are often disproportionately affected by these policies. For example, in May 2022, Haitians were just 6% of the migrant population crossing the U.S.-Mexico border but represented 60% of those ordered on expulsion flights under Title 42; conversely, predominantly white Ukrainian refugees were largely given exception from Title 42 measures.
Starting in 2019, the U.S. and Mexican governments took coordinated steps that effectively externalized U.S. immigration enforcement into southern Mexico. Mexican immigration officials in the southern Mexican state of Chiapas stopped issuing the “exit permits” that had allowed them to transit north and leave Mexico through the U.S.-Mexico border. Mexico also deployed its militarized National Guard to Southern Mexico for immigration enforcement, which led to an increase in apprehending and detaining migrants without documentation. This resulted in thousands of African, Haitian, and other migrants being stranded in Tapachula, Chiapas, near the Mexico-Guatemala border. Black migrants are, due to their skin color and language, particularly visible and targeted by the National Guard and other immigration enforcement. While stuck in Mexico – as elsewhere on their journey – Black migrants face racial discrimination, violence, and other rights violations. This includes overt acts of racism and hostility by Mexican immigration officials, challenges navigating the Mexican immigration system due to bias, national origin, and language differences, and barriers in employment, housing, and education.
Black migrants continue to face racial discrimination within the U.S. immigration system upon arrival. U.S. immigration laws and policies have historical roots in white supremacy and anti-Black racism, and these logics persist today. For instance, Black migrants “face disparate treatment in immigration court removal proceedings, including denials of adequate interpretation, lack of access to counsel, intentionally rushed proceedings, and adjudicator bias, which result in wrongful denials of asylum and, in some cases, deportation to persecution and torture.” Because the U.S. immigration and anti-Black criminal legal systems are so intertwined, Black migrants are often criminalized, racially profiled, surveilled, detained, and deported disproportionately. Black migrants contend with racism, abuse, and neglect while in immigration detention, and are often detained for longer periods, forced to pay higher bonds, and are more likely to be refused parole.
Border Technology Exacerbates Racial Discrimination and Abuse Against Black Migrants
The United States has increasingly relied on digital technology to enforce its border externalization policies. The Biden administration has allocated substantial funds toward border security technology. “Smart borders” include “remote video surveillance, drones, automated license plate readers, motion sensors, [and] integrated fixed towers [IFTs].” At the U.S.-Mexico border IFTs are tall long-range structures that use cameras and radar to detect moving people and collect data about them for immigration enforcement. The United States also employs small unmanned aerial systems (sUAS), a form of remote-operated drone originally designed for military operations, to identify and surveil migrants, facilitating their apprehension at the border. Such border surveillance technologies impinge on migrants’ privacy rights and can lead to increased violence and detention, and are a tool to externalize borders and impede migrants from entering the United States.
Upon arrival to the U.S.-Mexico border, some migrants are required to use CBP One, a mobile AI application implemented by U.S. Customs and Border Protection (CBP) to submit their personal and biometric information to apply for asylum (or, previously, exceptions to Title 42). This app has come under scrutiny, including because it is less able to recognize the photos of Black and dark-skinned people, creating a barrier for them to access this portal to move their asylum applications forward. While the algorithms CBP One relies on are not publicly available, such facial recognition technology has been rejected as racially discriminatory in other contexts such as policing. For example, these algorithms have been found to inaccurately identify Black faces at a rate 10 to 100 times more than white faces.
Immigration officials continue to use technology to monitor migrants after they enter U.S. territory. This includes the Investigative Case Management System used by Immigration and Customs Enforcement (ICE), software that gives ICE access to migrants’ personal and biometric information; as well as the use of mobile applications like SmartLink or electronic ankle monitors as alternatives to (immigration) detention. The Department of Homeland Security (DHS) is developing a Homeland Advanced Recognition Technology System (HART) to “aggregate and compare biometrics data including facial recognition, DNA, iris scans, fingerprints, and voice prints—most often gathered without obtaining a warrant…[in order] to target immigrants for surveillance, raids, arrests, detention, and deportation.” Just as anti-Black racism operates in the criminal legal system, Black migrants face racial profiling, criminalization, and detention at disproportionate rates, and these technologies are another tool that perpetuates these differential outcomes in the U.S. immigration system.
Human Rights and Border Technology Policy-Making
As BAJI and the Promise Institute argued before the IACHR, the use of border technology exacerbates racial discrimination in U.S. immigration enforcement, particularly against Black migrants, as well as the racialized harms caused by U.S. border externalization. Border technology, as with technology in general, is often framed as “neutral,” “objective,” and “fair” – yet it has the “capacity to reproduce, reinforce and even exacerbate racial inequality within and across societies.” It is used for controlling, surveilling, and policing migrants. Despite claims that it makes immigration enforcement “safer,” smart borders are a form of deterrence that perpetuate the racial inequity at the heart of immigration laws, policies, practices, and enforcement.
Policymakers must act now to stop the racialized impacts of AI at the border. Necessary policy reforms include: the collection and publication of data about AI-enabled border technologies, their use, and the differential impacts on Black and other racialized groups; the development of effective measures for oversight and accountability; and the establishment of a global governance framework on the use of digital surveillance technologies. Ultimately, policymakers must acknowledge and address how AI-enabled technologies are perpetrating and exacerbating human rights abuses at the border.