This article originally appeared in the Winter 2017 edition of The Green Card, the newsletter of the Immigration Law Section of the Federal Bar Association. © Jeffrey S. Chase 2017 All Rights Reserved
Racism was codified in this country’s original naturalization law. The Naturalization Act of 1790 limited the right to naturalize to “free white persons.” Following the Civil War, the Act of July 14, 1870, added “aliens of African nativity” and “aliens of African descent” to those eligible to naturalize. However, all others considered “non-white” continued to be barred from obtaining United States citizenship. In 1922, the Supreme Court denied Takao Ozawa, a Japanese immigrant who had lived in the U.S. for 20 years, the right to become a naturalized citizen because he “clearly” was “not Caucasian.” In interpreting the term “free white persons,” the Court found that “the framers did not have in mind the brown or yellow races of Asia.”1 In United States v. Bhagat Singh Thind, 2 the Supreme Court reached the same conclusion regarding an “upper-caste Hindu” who claimed a lineage classified as “Aryan” or “Caucasian.” The Court determined that “Aryan” related to “linguistic, and not at all with physical, characteristics,” and concluded that the term “free white persons” as understood by the common man, would not include those of Hindu ancestry.3 It was not until passage of the McCarran-Walter Act in 1952 that the naturalization law was amended to read that “[t]he right of a person to become a naturalized citizen shall not be denied or abridged because of race or sex…”4 Additionally, Native Americans were not accorded citizenship. According to one source, Native Americans were referred to as “domestic foreigners” in their own country.5 In 1856, U.S. Attorney General Caleb Cushing stated “Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States.”6 Cushing added that Native Americans could not obtain citizenship through the naturalization laws of the time, which Cushing stated “apply only to foreigners, while “Indians are not foreigners, and they are in our allegiance, without being citizens of the United States. Moreover, those acts apply only to ‘white’ men.”7 Native Americans were finally recognized as U.S. citizens by the Indian Citizenship Act of 1924.
1880s: The Exclusion of Immigrants from China
In 1882, Congress enacted the Chinese Exclusion Act as a 10-year bar on the entry of laborers from China. The text of the statute begins with the sentence “Whereas in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof…” It was extended in 1892 for another 10 years (as part of the Geary Act), and then made permanent in 1902. Although the act was repealed by the Magnuson Act in 1943, the new legislation only allowed the admission to this country of 105 immigrants per year from China. It was not until the Immigration Act of 1965 that full-scale Chinese immigration to the U.S. was restored.
1920s-30s: Keeping America “White”
The Immigration Act of 1924 limited immigration from any country to 2 percent of the number of immigrants from that country that were in the U.S. in 1890, and further excluded Asians. The purpose was to stop the growing number of Polish, Italian, Greek, and Slavic immigrants, as well as Jewish immigrants (who were referred to at the time as members of the “Hebrew race,” considered the lowest of all the European “races”).8 In signing the bill into law, President Calvin Coolidge declared that “America must be kept American.”9 Such view was motivated by the belief that “persons of northern European stock were superior to...the ‘races’ of southern and eastern Europe,” who at that time, “were racialized as non-white,” and was also motivated by strong anti-semitism.10 Madison Grant, described as a “prolific non-scientist” and “popularizer of the eugenics movement,”11 was called in as an expert to influence Congress by convincing its members of the threat posed by the immigration of Southern Europeans of “inferior stock.”12 Grant was the author of a highly influential book, The Passing of the Great Race,” in which he propagandized his theory of Nordic racial superiority. In a fan letter written to the author in the early 1930s, Adolf Hitler referred to the book as his “Bible.”13 During the 1930s, perhaps 2 million people of Mexican heritage (including some U.S. citizens) were deported, on the belief that Mexicans were taking scarce jobs away from Americans during the Great Depression. The mass deportations led to a shortage of agricultural workers at the beginning of WW II, which led to the institution of the Bracero program, which allowed 4.6 million Mexicans to enter the U.S. legally. However, this spurt in immigration from Mexico eventually led to more mass deportations in 1954.14
1940s: Barring Jewish Refugees; Japanese-American Denaturalization
Strong anti-semitic sentiments in the United States (combined with the general anti-immigration mood caused by the Great Depression) resulted in a closed-door policy towards Jewish refugees during and after World War II. 18 | The Green Card The desire to prevent Jewish refugees from entering this country led Breckinridge Long, the State Department official in charge of the Visa Division during the war, to author a memo advising consular officers to "delay and effectively stop for a temporary period of indefinite length the number of immigrants into the United States. We could do this by simply advising our consuls to put every obstacle in the way and to require additional evidence and to resort to various administrative devices which would postpone and postpone and postpone the granting of the visas." As a result, 90 percent of the visas allotted for German and Italian-controlled countries were never issued, which prevented some 190,000 Jews from escaping Nazi atrocities.15 The U.S. also infamously turned away ships of Jewish refugees fleeing Nazi persecution, the most famous example involving the ship The St. Louis, the plight of whose passengers was later memorialized by Hollywood in the 1976 film The Voyage of the Damned. After the war, the allies established displaced persons (“DP”) camps in Europe. When President Truman sent former INS Commissioner Earl G. Harrison to visit the DP camps to assess the conditions, his harrowing report to the President included the line “we appear to be treating the Jews as the Nazis treated them, except we are not exterminating them.”16 In addition to the closed door policy towards Jewish refugees, the policy of interning Japanese-Americans during the war led to the deportation of some U.S. citizens of Japanese descent. Maurice Roberts was an INS official assigned to conduct hearings to determine deportability for this group. Roberts recounted that the internees included 77,000 Japanese-Americans who were U.S. citizens by birth, and another 43,000 who were lawful permanent residents. Roberts wrote “[i]n racial terms suprisingly Hitler-like, Lt. General John L. DeWitt, Commanding General of the Western Defense Command, declared that the Japanese constituted an enemy race whose racial strains remained undiluted despite successive generations on U.S. soil.”17 DeWitt’s statement made no mention of anti-miscegenation laws prohibiting Asian-Americans from marrying “white persons,” which existed in 7 states in 1910, and had more than doubled to 15 states by 1950.18 In 1944, Congress enacted an amendment to 8 U.S.C. § 801, to allow for loss of citizenship through written renunciation “whenever the United States shall be in a state of war.” A U.S. District Court recognized that the motivation behind such amendment was the illegality of the continued detention of American citizens: “if renunciations of American citizenship could be obtained from those in Tule Lake [an internment camp], it was thought they could then be detained as alien enemies without doing violence to our traditional constitutional safeguards.”19 The court recounted the extreme conditions which led to many of the renunciations that followed, including “[m]ass hysteria; the outgrowth of the combined experience of evacuation, loss of home, isolation from outside communication and concentration in an enclosed, guarded, overpopulated camp with little occupation, inadequate and uncomfortable living accommodations, dreary and unhealthful surroundings and climatic conditions, producing neurosis built on fear, resentment, uncertainty, hopelessness and despair…”20 Paraphrasing from a comparable decision, the court stated that “it is shocking to the conscience that an American citizen be confined without authority and then, while so under duress and restraint, for his Government to accept from him a surrender of his constitutional heritage.”21
1950s: The McCarren-Walter Act; “Operation Wetback”
In 1952, Congress enacted the McCarren-Walter Act. In a very recent article, two scholars point to a cause and effect between that Act’s removal (for the first time in this country’s history) of “being white” as a prerequisite for naturalization, and the mass deportations to Mexico that were carried out two years later by the Eisenhower Administration.22 In 1954 (the same year that the Supreme Court decided Brown v. Board of Education), the government carried out the Special Mobile Force Operation, more commonly referred to as “Operation Wetback.” The program resulted in the deportation of an estimated one million people to Mexico, some of whom were U.S. citizens. In the view of Professors Louis Hyman and Natasha Iskander, the program’s “enforcement approach - assuming those who were not white had dubious citizenship” - reflected resistance to the McCarren-Walter Act’s “legal shift” of removing racial barriers to naturalization.23 The program has been referred to as “a humanitarian catastrophe;” in which some of those deported died of sunstroke after being deported into the Mexican desert; others were deported in cargo ships under conditions described as comparable to “an eighteenth-century slave ship.”24
1980s: Haitian Interdiction
In the words of Kevin R. Johnson, “No U.S. policy approached...the government’s extraordinary treatment of Black persons fleeing the political violence in Haiti.”25 Following the October 1991 military coup in Haiti that overthrew the democratically-elected Aristide government, which was in turn followed by a reign of political terror, the U.S. Coast Guard interdicted 34,000 Haitians at sea over a six-month period. Johnson quoted his colleague Stephen Legomsky as stating “[t]he public would never [have stood] for this if the boat people were Europeans.”26 In Sale v. Haitian Centers Council, Inc., 27 the Supreme Court upheld the policy initiated by President George H.W. Bush, and surprisingly continued under President Clinton, of repatriating the intercepted Haitians to Haiti without first screening the returnees to see if they qualified for refugee status. In its amicus brief, the NAACP referred to the policy as “separate but unequal.” In his dissenting opinion, Justice Brennan concluded that the Haitian refugees “do not claim a right of admission to this country. They do not even argue that the Government has no right to intercept their boats. They demand only that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. We should not close our ears to it.”28
Post- 9/11: Registration of Muslims
In response to the terrorist acts of September 11, 2001, on September 10, 2002, the National Security Entry-Exit Registration System (“NSEERS”) was implemented by the INS. The program required males over the age of 16 who were nationals of designated countries to register. 24 of the 25 countries designated were predominantly Muslim countries (the sole exception being North Korea). The program was indefinitely suspended in April, 2011. The Future The above is intended as a simple overview of U.S. immigration policies that were impacted by racial criteria.29 As future administrations respond to calls to restrict or deport certain classes of people based on racial criteria, it is hoped that our nation’s past mistakes may serve as guidance in formulating policies based on justice and fairness to all. n The author is an Attorney Advisor at the Board of Immigration Appeals, Executive Office for Immigration Review (EOIR), U.S. Department of Justice. The author wrote this article in his personal capacity, and the views expressed herein are solely his own, and do not necessarily represent the positions of EOIR or the Department of Justice.
1 Takao Ozawa v. United States, 260 U.S. 178 (1922).
2 261 U.S. 204 (1923).
3 Id. at 214-15.
4 Pub. L. 414 (June 27, 1952), Sec. 311.
5 Warren J. Blumenfeld, “Immigration Policy and Racism,” Huffington Post Feb. 1, 2013.
6 Felix S. Cohen, Handbook of Federal Indian Law: With Reference Tables and Index (U.S. Gov’t Printing Office, 1945), p.155.
8 Blumenfeld, supra.
9 Stephen Mihm, “Paleoconservatism Is Back,” Bloomberg View, Nov. 27, 2016, www.bloomberg.com/view/articles/2016-11-27/paleoconservatism-is-back
10 Kevin R. Johnson, “Race, The Immigration Laws, And Domestic Race Relations: a ‘Magic Mirror’ into the Heart of Darkness,” 73 Indiana Law Journal 1111, 1129 (Fall, 1998).
11 Ann Gibson Winfield, “Eugenics and Education in America: Institutionalized Racism and the Implications of History, Ideology, and Memory,” p.74 (2007).
12 “European Immigration and Defining Whiteness,” RACE.com, www.understandingrace.org/history/gov/ eastern_southern_immigration.html.
13 Edwin Black, “Hitler’s Debt to America,” The Guardian, February 5, 2004, www.theguardian.com/ uk/2004/feb/06/race.usa.
14 See NPR, “It Came Up in the Debate: Here Are 3 Things To Know About ‘Operation Wetback,” Nov. 11, 2015, www. npr.org/sections/thetwo-way/2015/11/11/455613993/itcame-up-in-the-debate-here-are-3-things-to-know-aboutoperation-wetback.
15 See The American Experience: “America and the Holocaust: People and Events - Breckinridge Long,” at www.pbs.org/wgbh/amex/holocaust/peopleevents/pandeAMEX90.html)
16 See U.S. Holocaust Museum, “Resources,” “Report of Earl G. Harrison,” at www.ushmm.org/exhibition/ displaced-persons/resourc1.htm.
17 Maurice A. Roberts, “The Tule Lake Hearings,” 73 Interpreter Releases 1065, 1066 (Aug. 12, 1996).
18 See e.g. Hrithi Karthikeyan and Gabriel J. Chin, “Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to AsianAmericans, 1910-1950,” 9 Asian American Law Journal Vol. 9:1 (2002).
19 Tadayasu Abo v. Clark, 77 F.Supp. 806, 809 (N.D. Cal. 1948).
20 Id. at 808.
21 Id. at 811.
22 Louis Hyman and Natasha Iskander, “What the Mass Deportation of Immigrants Might Look Like,” Slate Nov. 16, 2016. The authors are an associate professor of history at Cornell University and an associate professor of public policy at New York University.
24 Jeet Heer, “Operation Wetback Revisited,” The New Republic, April 25, 2016, newrepublic.com/article/132988/ operation-wetback-revisited
25 Kevin R. Johnson, “Race, the Immigration Laws, and Domestic Race Relations: A ‘Magic Mirror’ Into the Heart of Darkness,’ 73 INDIANA L.J. 1111, 1144 (1998).
27 509 U.S. 155 (1993).
28 Sale v. Haitian Centers Council, supra at 208.
29 For a much more in-depth, scholarly treatment of the topic, please refer to Kevin Johnson’s excellent article, for which the full citation may be found in footnote 8.