tries or of Asian descent. In addition to extending the statutory life of the Chinese exclusion law, the 1902 act also applied that law to American territorial possessions, thereby prohibiting not only the immigration of noncitizen Chinese laborers from "such island territory to the mainland territory," but also "from one portion of the island territory of the United States to another portion of said island territory."26 Soon after, Japanese were restricted from free immigration to the United States by the "Gentleman's Agreement" negotiated between the respective governments in 1907.27 Additional evidence would be provided by the prohibition of immigration from countries in the Asia-Pacific Triangle as established by the Immigration Act of 1917.28 During this period, congressional attempts were also made to prevent blacks from immigrating to this country. In 1915 an amendment to exclude "all members of the African or black race" from admission to the United States was introduced in the Senate during its deliberations on a proposed immigration bill.29 The Senate approved the amendment on a 29 to 25 vote,30 but it was later defeated in the House by a 253 to 74 vote,31 after intensive lobbying by the NAACP.32 31 In 1917 Congress codified existing immigration laws in the Immigration Act of that year.33 That act retained all the prior grounds for inadmissibility and added illiterates to the list of those ineligible to immigrate, as a response to the influx of immigrants from southern and eastern Europe. Because of a fear that American standards would be lowered by these new immigrants who were believed to be racially "unassimilable" and illiterate, any alien who was over 16 and could not read was excluded. The other important feature of this statute was the creation of the Asia-Pacific Triangle, an Asiatic barred zone, designed to exclude Asians completely from immigration to the United States. The only exemptions from this zone were from an area that included Persia and parts of Afghanistan and Russia. The 1917 immigration law reflected the movement of American immigration policy toward the curbing of free immigration. Free immigration, 28 Ch. 641, 32 Stat. 176 (1902). "The Gentleman's Agreement of 1907, U.S. Department of State, Papers Relating to the Foreign Relations of the United States 1924 (1939), vol. 2, p. 339. 2 Ch. 29, 39 Stat. 874 (1917). 29 52 Cong. Rec. 805 (1914). 30 Id. at 807. particularly from nations that were culturally dissimilar to the northern and western European background of most Americans, was popularly believed to be the root of both the economic problems and the social problems confronting this country. The National Origins Quota Four years later, Congress created a temporary quota law that limited the number of aliens of any nationality who could immigrate to 3 percent of the United States residents of that nationality living in the country in 1910.34 The total annual immigration allowable in any one year was set at 350,000. Western Hemisphere aliens were exempt from the quota if their country of origin was an independent nation and the alien had resided there at least 1 year. The clear intent of the 1921 quota law was to confine immigration as much as possible to western and northern European stock. As the minority report noted: The obvious purpose of this discrimination is the adoption of an unfounded anthropological theory that the nations which are favored are the progeny of fictitious and hitherto unsuspected Nordic ancestors, while those discriminated against are not classified as belonging to that mythical ancestral stock. No scientific evidence worthy of consideration was introduced to substantiate this pseudoscientific proposition. It is pure fiction and the creation of a journalistic imagination. . . . The majority report insinuates that some of those who have come from foreign countries are non-assimilable or slow of assimilation. No facts are offered in support of such a statement. The preponderance of testimony adduced before the committee is to the contrary.35 Notwithstanding these objections, Congress made the temporary quota a permanent one with the enactment of the 1924 National Origins Act.36 A ceiling of 150,000 immigrants per year was imposed. Quotas for each nationality group were 2 percent of 31 Id. at 1138-39. 32 See Crisis, vol. 9 (February 1915), p. 190. 33 Ch. 29, 39 Stat. 874 (1917). 34 Ch. 8, 42 Stat. 5 (1921). 35 As reprinted in the legislative history of the INA [1952] U.S. Code Cong, and Ad. News 1653, 1668. 38 Ch. 190, 43 Stat. 153 (1924). the total members of that nationality residing in the United States according to the 1890 census.37 Again, Western Hemisphere aliens were exempt from the quotas (thus, classified as "nonquota" immigrants). Any prospective immigrant was required to obtain a sponsor in this country and to obtain a visa from an American consulate office abroad. Entering the country without a visa and in violation of the law subjected the entrant to deportation without regard to the time of entry (no statute of limitation). Another provision, prohibiting the immigration of aliens ineligible for citizenship, completely closed the door on Japanese immigration, since the Supreme Court had ruled that Japanese were ineligible to become naturalized citizens.38 Prior to the 1924 act, Japanese immigration had been subjected to "voluntary" restraint by the Gentleman's Agreement negotiated between the Japanese Government and President Theodore Roosevelt. In addition to its expressed discriminatory provisions, the 1924 law was also criticized as discriminatory against blacks in general and against black West Indians in particular.39 Ch. 190, 43 Stat. 153, 159, §11(b). "Early congressional enactments restricted eligibility for naturalization to free white persons (ch. 3, 1 Stat. 103 (1790)) and to persons of African nativity or descent (Rev. Stat. §2169 (1875)). But when Congress passed the Naturalization Act of June 29, 1906 (ch. 3592, 34 Stat. 596), persons of Japanese ancestry began submitting petitions to become naturalized citizens under the procedures established by that act. The Supreme Court, however, held that the 1906 act was limited by the prior congressional enactments and thus Japanese were ineligible for naturalization. Ozawa v. United States, 260 U.S. 178 (1922). 3 "West Indian Immigration and the American Negro," Opportunity, October 1924, pp. 298-99. shortage caused by the First World War.43 The spirit of acceptance lasted only a short time, however. Spurred by the economic distress of the Great Depression, Federal immigration officials expelled hundreds of thousands of persons of Mexican descent from this country through increased Border Patrol raids and other immigration law enforcement techniques. To mollify public objection to the mass expulsions, this program was called the "repatriation" campaign. Approximately 500,000 persons were "repatriated" to Mexico, with more than half of them being United States citizens.45 Erosion of Certain Prior to the next recodification of the immigration laws, there were several congressional enactments that cut away at the discriminatory barriers established by the national origins system. In 1943 the Chinese Exclusion Act was repealed, allowing quota of 105 Chinese to immigrate annually to this country and declaring Chinese eligible for naturalization.46 The War Brides Act of 194547 permitted the immigration of 118,000 spouses and children of military servicemen. In 1946 Congress enacted legislation granting eligibility for naturalization to Pilipinos and to races indigenous to India.49 A Presidential proclamation in that same year increased the Pilipino quota from 50 to 100.50 In 1948 the Displaced Persons Act provided for the entry of approximately 400,000 refugees from Germany, Italy, and Austria (an additional 214,000 refugees were later admitted to the United States).51 The McCarran-Walter Act of 1952 The McCarran-Walter Act of 1952,52 the basic law in effect today, codified the immigration laws under a single statute. It established three principles for immigration policy: (1) the reunification of families, (2) the protection of the domestic labor force, and (3) the immigration of persons with needed skills. However, it retained the concept of the national origins system, as well as unrestricted immigration from the Western Hemisphere. An important provision of the statute removed the bar to immigration and citizenship for races that had been denied those privileges prior to that time. Asian countries, nevertheless, were still discriminated against, for prospective immigrants whose ancestry was one-half of any Far Eastern race were chargeable to minimal quotas for that nation, regardless of the birthplace of the immigrant. "Operation Wetback" Soon after the repatriation campaigns of the 1930s, the United States entered the Second World War. Mobilization for the war effort produced a labor shortage that resulted in a shift in American attitudes toward immigration from Mexico. Once again Mexican nationals were welcomed with open arms. However, this "open arms" policy was just as short lived as before. In the 1950s many Americans were alarmed by the number of immigrants from Mexico. As a result, then United States Attorney General Herbert Brownell, Jr., launched "Operation Wetback," to expel Mexicans from this country. Among those caught up in the expulsion campaign were American citizens of Mexican descent who were forced to leave the country of their birth. To ensure the effectiveness of 52 Ch. 477, 66 Stat. 163 (1952). 53 Grebler, Moore, and Guzman, The Mexican American People, pp. 521-22. Mark A. Chamberlin et al., eds., “Our Badge of Infamy: A Petition to the United Nations on the Treatment of the Mexican Immigrant," in The Mexican American and the Law (1974 ed.), pp. 31-34. 54 Pub. L. No. 89-236, 79 Stat. 911 (1965). 55 The 1965 amendments to the Immigration and Nationality Act provided the following seven category preference system: First preference: unmarried sons and daughters of U.S. citizens. (20 percent) Second preference: spouses and unmarried sons and daughters of lawful resident aliens. (20 percent plus any visas not required for first preference) Third preference: members of the professions and scientists and artists of exceptional ability and their spouses and children. (10 percent) the expulsion process, many of those apprehended were denied a hearing to assert their constitutional rights and to present evidence that would have prevented their deportation. More than 1 million persons of Mexican descent were expelled from this country in 1954 at the height of "Operation Wetback."53 The 1965 Amendments The national origins immigration quota system generated opposition from the time of its inception, condemned for its attempts to maintain the existing racial composition of the United States. Finally, in 1965, amendments to the McCarran-Walter Act abolished the national origins system as well as the Asiatic barred zone.54 Nevertheless, numerical restrictions were still imposed to limit annual immigration. The Eastern Hemisphere was subject to an overall limitation of 170,000 and a limit of 20,000 per country. Further, colonial territories were limited to 1 percent of the total available to the mother country (later raised to 3 percent or 600 immigrants in the 1976 amendments). The Western Hemisphere, for the first time, was subject to an overall limitation of 120,000 annually, although no individual percountry limits were imposed. In place of the national origins system, Congress created a seven category preference system giving immigration priority to relatives of United States residents and immigrants with needed talents or skills.55 The 20,000 limitation per country and the colonial limitations, as well as the preference for relatives of Americans preferred under the former selections process, have been referred to by critics as "the last vestiges of the national origins system" because they perpetuate the racial discrimination produced by the national origins system. Restricting Mexican Immigration After 1965 the economic conditions in the United States changed. With the economic crunch felt by Fourth preference: married sons and daughters of U.S. citizens and their spouses and children. (10 percent plus any visas not required for first three preferences) Fifth preference: brothers and sisters of U.S. citizens and their spouses and children. (24 percent plus any visas not required for first four preferences) Sixth preference: skilled and unskilled workers in occupations for which labor is in short supply in this country, and their spouses and children. (10 percent) Seventh preference: refugees. (6 percent) Spouses and minor children of American citizens are exempt from the preference system. many Americans, the cry for more restrictive immigration laws resurfaced. The difference from the 19th century situation is that the brunt of the attacks is now focused on Mexicans, not Chinese. High "guesstimates" of the number of undocumented Mexican aliens entering the United States, many of which originated from Immigration and Naturalization Service sources, have been the subject of press coverage. 56 As a partial response to the demand for "stemming the tide" of Mexican immigration, Congress amended the Immigration and Nationality Act in 1976, imposing the seven category preference system and the 20,000 numerical limitation per country on Western Hemisphere nations. Legal immigration from Mexico, which had been more than 40,000 people per year, with a waiting list 2 years long, was thus cut by over 50 percent. se "6-8 million," New West Magazine, May 23, 1977; "4-12 million," Los Angeles Times, Aug. 7, 1977. 57 Pub. L. No. 94-571, 90 Stat. 2703 (1976). In 1976 there were 57,863 immigrants from Mexico; in 1975, 62,205. U.S., Immigration and Naturalization Service, Annual Report 1976, p. 89. 5 Pub. L. No. 95-412, 92 Stat. 907 (1978). Recent Revisions of the Although the annual per-country limitations have remained intact, Congress did amend the Immigration and Nationality Act in 1978 to eliminate the hemispheric quotas of 170,000 for Eastern Hemisphere countries and 120,000 for Western Hemisphere countries. Those hemispheric ceilings were replaced with an overall annual worldwide ceiling of 290,000.59 In 1980 the immigrant quota system was further revised by the enactment of the Refugee Act. In addition to broadening the definition of refugee, that statute eliminated the seventh preference visa category by establishing a separate worldwide ceiling for refugee admissions to this country. It also reduced the annual worldwide ceiling for the remaining six preference categories to 270,000 visas, and it increased the number of visas allocated to the second preference to 26 percent.60 * Refugee Act of 1980, Pub. L. No. 96-212 (to be codified in scattered sections of 8 U.S.C.). The Refugee Act also increased the allocation of refugee visas to 50,000 annually for the first three fiscal years under the statute and provided that the number of refugee admissions in the following years would be determined by the President after consultation with Congress. Chapter 2 Present Discrimination in the Immigration Laws The repeal of the national origins system in 1965 was intended to abolish all discrimination in the selection of immigrants to the United States on the basis of their race or national origin. To replace a system widely acknowledged to be racially discriminatory, all intending immigrants were to have an equal opportunity to enter the U.S. on a first-come, first-served basis "without regard to place of birth.”1 Although the current immigrant selection system purports on its face to treat all persons equally, the system has been criticized as having a discriminatory effect because of the imposition of annual per-country limitations of 20,000 immigrants and colonial quotas of 600 visas. As one experienced immigration practitioner concluded: These discriminations between. . .colonial subquotas and national quotas are indefensible classifications based upon race, national origins, place of birth and prejudice. However, they have been sustained by the courts and represent our national policy-a policy in conflict with 'S. Rep. No. 748, 89th Cong., 1st sess., reprinted in [1965] U.S. Code Cong. & Ad. News 3328, 3332. • The annual worldwide ceiling for nonrefugee immigrants was reduced to 270,000 in 1980. Refugee Act of 1980, Pub. L. No. 96-212 (to be codified in scattered sections of 8 U.S.C.). * Jack Wasserman, statement submitted to the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 14-15, 1978, pp. 2, 6–7. Pub. L. No. 95-412, 92 Stat. 907 (1978). The per-country limits were to be imposed gradually, as the national origins quota system would not be officially abolished until July 1, 1968. In the interim, those quota numbers under the existing quota system that were unused at the end of the year would be reallocated to countries with oversubscribed quotas and long preference waiting lists. S. Rep. No. 748, our national antidiscrimination declarations and attitudes. We can retain an annual worldwide ceiling of 290,000* but discrimination based upon age, national quotas, quotas based upon place of birth and colonial quotas are neither needed nor in keeping with modern concepts of equality and fairness. They represent a relic of prejudice and a bygone era. They should be eliminated.2 Per-Country Limits Prior to the adoption of a single annual worldwide ceiling in 1978, the 1965 amendments to the McCarran-Walter Act repealed the national origins quota system for the selection of immigrants to the United States and limited the number of immigrants for any given year from the Eastern Hemisphere to 170,000, with no more than 20,000 visas going to each country in the Eastern Hemisphere. Immigration from the Western Hemisphere, which had not been previously restricted, was to be limited as of July 1968 to 120,000 annually, although no per-country limits were imposed. It is interesting to note that during the decade preceding the imposition of these restrictions upon Western Hemisphere immigration, the number of Mexican immigrants steadily increased and began to overtake Canadian immigra 89th Cong., 1st sess., reprinted in [1965] U.S. Code Cong. & Ad. News 3328, 3329, 3333. By imposing this 120,000 quota, Congress intended to place immigrants from both hemispheres on an equal footing in terms of access to the U.S. The committee has been increasingly concerned with the unrestricted flow of immigration from the nonquota countries (Western Hemisphere) which averaged approximately 110,000 admissions [per year] over the past ten years. . .to continue unrestricted immigration for persons born in the Western Hemisphere countries is to place such aliens in a preferred status compared to aliens born in other parts of the world. . . . Id. at 3336. |