Black American Refugees:  Crossing the Same River Twice

Black American Refugees: Crossing the Same River Twice

“You can never really go back to the same waters. Not only are you no longer the same, but neither are the waters you left. The current has changed. The elements of nature have affected the stream. When you return, although it appears the same, it really is a different river and you are a different person. Therefore, you cannot cross the same river twice.”
- Alice Walker

On a recent trip to the United States to visit an ill relative, I dropped in to see my mother.  I did not have time to remove my rucksack before she pushed a small plastic cube into my hand.  "Here," she said, "it's my new dash cam, I ordered it online."  It was for filming potential run-ins with the police.  A second video recorder, for a different angle, was in the post. Later,  in the car, she described being stopped in her New Jersey neighbourhood a few years ago.  An officer had pulled her over for having her high-beams on.  Admittedly, high-beams in the wrong place can be dangerous for oncoming traffic, but after apologising and explaining that she had just bought the car, he continued to yell at her in a way that age and experience signalled to her was just that bit too much.  He told her he could just make her get out and walk.  It was night-time in winter, and she was on her way to work.  The officer would not leave until she felt humiliated.  

As she recounts her story, I hope my face does not reveal my pessimism with regard to the camera’s life-saving potential. A tight knot just under my left shoulder blade develops and stays for the better part of a year. More now than during other visits, and particularly after watching the footage of Sandra Bland’s stop, there is a quiet fatigue pressing down on all of my thoughts and interactions. It feels like I am a person I have never met, visiting a foreign country for the first time.

But it’s not – foreign, that is.  It still resembles itself, still haunted by familiar ghosts.  But then, it is constantly changing, and so are we.  To use Alice Walker's metaphor, "you cannot cross the same river twice;" it's always different, and so are you. Thanks to #SayHerName and #BlackLivesMatter, the abstract horror stories of the American racial present have become specific, systemic features have gained a material immediacy, and that affects the number of times we are put on guard.  It changes our relationship to the space we inhabit so that we hear different subtleties in the songs on the radio and find that we are irritated by the way the wind moves things around.  Not to sound too romantic about all this, but the feeling is very alienating.

Given this sharp sense of alienation that I am sure I share with others, I am not surprised that recently, a few articles have surfaced contemplating the possibility of Black Americans claiming asylum abroad for being persecuted in the United States.

(c) Jacob Lawrence

Legally, in terms of international law, and specifically the 1951 Geneva Convention on the Status of Refugees, a refugee is a person who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Pivotal here are two things—the concept of persecution and the interpretation of ‘well-founded fear’.   Persecution is generally understood as torture, severe pain, death, or the denial of something fundamental to one’s life or identity.  'Well-founded' generally means that there is a good chance that the persecution will actually happen.  This is tricky, since even if there is a promise of persecution, there is no guarantee it will happen, so ultimately there is a judgment call made as to whether the fear of persecution is ‘well-founded.’  This happens on both a subjective (personal evidentiary) basis and an objective (general state of the country, corroborating evidentiary) basis.  In the case of Black people being disproporationately arrested, abused and/or killed by police, while the fear of persecution may be well-founded, it may not meet the standard typically interpreted into the probability that the persecution will actually happen that is a necessary component of gaining asylum status.  Since asylum decisions are made on a case-by-case basis, it is difficult to make arguments about disproportionate impact (importing language from constitutional equal protection) rather than on the liklihood that an individual will be tortured or killed.  With this in mind, it is important to recognise that asylum law generally is not equipped to deal with the types of structural state violence faced by Black Americans, as it defines persecutory violence quite narrowly and does so on a case-by-case basis.  

However, other aspects typical to asylum claims are indeed in place, such as state's failure to protect individuals from persecution (which follows if the police are, indeed, the agents of persecution), arbitrary death being visited on people owing to their race or origins, etc.  While legally it would be a difficult case to make, considering asylum claims by Black Americans is not an absurd proposition, ideologically speaking, given the principles that underlie the Geneva Convention.

It is worth mentioning that qualifying as a refugee is so difficult that many consider the international refugee system a cosmetic response, accessible only to the privileged few who have the means to travel and suffer the 'right' type of violence.  The system is inadequate for dealing with the issues of global disparity and systemic violence, and it operates partly in the service of legitimising the state system and curtailing free movement, even when movement could save lives.


Historically, the idea of asylum for Black people in North America is not without precedent.  In fact, it has, in various ways, been revisited a number of times throughout US history.

A century before the Geneva Convention was adopted, in an 1852 article in the Jamaican newspaper The Gazette, Jamaica was being considered as a place for the resettlement of Black people from the United States and Canada.  Africans had rebelled against European colonial powers, which ultimately led to the formal abolition of slavery in Jamaica in 1831, more than three decades before abolition in the United States.  The Anti-Slavery Society of Toronto found Jamaica to be a good place for resettlement of Black people who had arrived in Canada via the United States, in particular because the recent Fugitive Slave Act (1850), deeming runaways as fugitives and demanding their return as property. 

While resettlement to Jamaica mirrors international law on refugees inasmuch as assistance was being offered to the aggrieved group by another country on a humanitarian basis, of course the assistance in this case did not stem from binding international obligation, nor was it defined or constrained by the definitions of persecution or refugees that we find today in the Geneva Convention. 

We should not only consider the restrictive definition of the ‘refugee’ under the Geneva Convention when historicising the notion of the Black American refugee.  The discussion must be broader, or it will not capture the relevance of the concept in context.  What of the various movements to voluntarily repatriate to Liberia, Sierra Leone and other parts of Africa throughout the 1800s and 1900s?  As controversial as they have been, they all tend to refract the terror imposed on Black people in the Americas.  What of the underground railroad and the clandestine escape towards the Northern Star and out of bondage?  What of the great post-emancipation northward migration, which saw tens of thousands of free Black people moving northward from the Southern US states in the 1860s through the early 1900s, in order to escape not only the spectre of formal slavery (continued through indenture, sharecropping and Black Codes) but the culture of humiliation that continued to define the South for Black people?  What of the choreography that we engage in on a daily basis, navigating public places with knots in our backs, sleeping heavy from the labour of anticipating violence?

The status of Black people in America has been consistently one just at the edge of flight.  What we call it, and whether we call it refuge, escape, migration or exclusion is not always up to us.  Many of us could have been Assata Shakur, who actually does have formal asylum status in Cuba, which is a direct result of her plight against white supremacy in the US.  The word ‘refugee’  was used  to describe those affected by Hurricane Katrina, and it stuck to some extent, not only because people had to pack themselves into the Superdome for safety, but because they could not depend on the state for safety.  In fact, the state prepared the stage for the devastation of Katrina and offered a wholly inadequate response to the tragedy.  The aesthetics of that situation, much like the scale and severity of state violence against Black people in the US generally, has the flavour of an international humanitarian episode. 

Of course, invoking the term ‘refugee’ is a powerful call to the aesthetics of international law and the support of the international community. The invocation is powerful, given the potential embarrassment it can cause a state that can elect a Black leader but fail to prevent law enforcement from killing Black people on what seems to be a daily basis.  But the aesthetic value of calling ourselves refugees only scratches the surface of the current state of things.  We have always been refugees, moving and dancing to avoid the bullets, the cuffs and the lash. What now?  

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