been consistently characterized by the courts as a civil proceeding." However, sufficient similarity exists between the immigration law enforcement system and the criminal justice system to justify comparison of certain aspects of both systems. Other studies, in examining INS practices, have recognized these similarities in comparing aspects of the two systems. 18

The report represents the findings and conclusions of the Commission with respect to the administration of justice in the enforcement of the immigration laws of the United States. It is divided into five sections.

The first section of the report discusses past and present discriminatory provisions of United States immigration laws. The second section focuses on problems in the practices and procedures of the INS and the State Department in administering the immigration laws and how those practices and procedures affect citizens, aliens, and intending immigrants.19 The third section of the report concentrates on employer sanctions, a proposed legislative solution to the "immigration problem." In the fourth section, chapters 6 and 7 examine the constitutional rights provided to persons during the apprehension, detention, and deportation stages of the immigration expulsion process and the effect that process has on persons other than those subject to deportation. The

"The classification of deportation as a civil proceeding will be discussed in chapter 7 of this report.

10 One example would be "A Comparison of the Bond-Setting Practices of the Immigration and Naturalization Service with that of the Criminal Courts" by Bruce D. Beaudin, who conducted the study for the Depart

last section of the report examines current INS complaint investigation procedures.

Some of the problems arising from the enforcement and administration of the immigration laws have been addressed by reforms instituted by Leonel Castillo, the former Commissioner of INS. But many problems remain. Those problems are summarized in the two major findings of the report: (1) the current Immigration and Nationality Act still contains discriminatory provisions, and (2) the current practices and procedures for the enforcement of that statute result in the denial of rights to American citizens and to documented and undocumented aliens.

The findings of the report are followed by the Commission's recommendations to eliminate the discriminatory provisions of law and to revise current immigration practices and procedures. These improvements in immigration law, practice, and procedure are necessary if American citizens, resident aliens, and undocumented aliens are to receive the full measure of benefits and legal protections to which they are entitled under our system of government. By adopting these changes, America's "old" immigrants can embark on a true course which furthers the traditions of our free and democratic society, not only for the alien but also for the American citizen.

ment of Justice and the INS. The findings and recommendations of that study are discussed in chapter 7.

19 Intending immigrants are foreign nationals who desire to come to the United States to live and work. This term will be used interchangeably with the term "prospective immigrant" in this report.

Chapter 1

The Early Years

During the formative years of this country's growth, immigration was encouraged with little restraint. Any restrictions on immigration in the 1700s were the result of selection standards established by each colonial settlement. The only Federal regulation of immigration in this period lasted only 2 years and came from the Alien Act of 1798, which gave the President the authority to expel aliens who posed a threat to national security.1

Immigrants from northern and western Europe began to trickle into the country as a result of the faltering economic conditions within their own countries. In Germany, unfavorable economic prospects in industry and trade, combined with political unrest, drove many of its nationals to seek opportunities to ply their trades here.2 In Ireland, the problems of the economy, compounded by several successive potato crop failures in the 1840s, sent thousands of Irish to seaports where ships bound for the United States were docked. For other European nationals, the emigration from their native countries received impetus not only from adverse economic conditions at home but also from favorable stories of free land and good wages in America.*

prevent further arrivals of Catholics into this country. Anti-Catholicism was a very popular theme, and many Catholics and Catholic institutions suffered violent attacks from nativist sympathizers. The movement, however, did not gain great political strength and its goal of curbing immigration did not materialize.

Immigrants in the mid-19th century did not come only from northern and western Europe. In China, political unrest and the decline in agricultural productivity spawned the immigration of Chinese to American shores. The numbers of Chinese immigrants steadily increased after the so-called Opium War, due not only to the Chinese economy, but also to the widespread stories of available employment, good wages, and the discovery of gold at Sutter's Mill, which filtered in through arrivals from the Western nations."

The nativist movement of the 1830s resurfaced in the late 1840s and developed into a political party, the Know-Nothing Party. Its western adherents added an anti-Chinese theme to the eastern antiCatholic sentiment. But once again, the nativist movement, while acquiring local political strength, failed in its attempts to enact legislation curbing immigration. On the local level, however, the cry of "America for Americans" often led to discriminatory State statutes that penalized certain racially identifiable groups. 10 As an example, California adopted licensing statutes for foreign miners and

• Wittke, We Who Built America, pp. 497-510. • Coolidge, Chinese Immigration, p. 58.

10 Ibid., pp. 69-82. Some municipalities also adopted ordinances that discriminated against Chinese. As an example, a San Francisco municipal ordinance, subsequently held unconstitutional in Yick Wo v. Hopkins, 118 U.S. 356 (1886), was enacted regulating the operation of public laundries but in practice was enforced almost exclusively against Chinese.

fishermen, which were almost exclusively enforced against Chinese.11

In the mid-1850s, the Know-Nothing Party lost steam as a result of a division over the question of slavery, the most important issue of that time.12 The nativist movement and antiforeign sentiment receded because of the slavery issue and the Civil War. It maintained this secondary role until the Panic of 1873 struck.

Chinese Exclusion

The depression economy of the 1870s was blamed on aliens who were accused of driving wages to a substandard level as well as taking away jobs that "belonged" to white Americans. While the economic charges were not totally without basis, reality shows that most aliens did not compete with white labor for "desirable" white jobs. Instead, aliens usually were relegated to the most menial employment. 13

The primary target was the Chinese, whose high racial visibility, coupled with cultural dissimilarity and lack of political power, made them more than an adequate scapegoat for the economic problems of the 1870s.14 Newspapers adopted the exhortations of labor leaders, blaming the Chinese for the economic plight of the working class. Workers released their frustrations and anger on the Chinese, particularly in the West.15 Finally, politicians succumbed to the growing cry for exclusion of Chinese.

Congress responded by passing the Chinese Exclusion Act of 1882.16 That act suspended immigration of Chinese laborers for 10 years, except for those who were in the country on November 17, 1880. Those who were not lawfully entitled to reside in the United States were subject to deportation. Chinese immigrants were also prohibited from obtaining United States citizenship after the effective date of the act.

The 1882 act was amended in 1884 to cover all subjects of China and Chinese who resided in any other foreign country." Then in 1888, another act was enacted that extended the suspension of immi

"1 Ibid., pp. 33-38, 69–74.

12 Wittke, We Who Built America, pp. 509-10.

13 As one author noted, "[b]efore the late 1870's the Chinese engaged only in such work as white laborers refused to perform. Thus the Chinese not only were noninjurious competitors but in effect were benefactors to the white laborer." S.W. Kung, Chinese in American Life: Some Aspects of Their History, Status, Problems, and Contributions (1962), p. 68.

"Carey McWilliams, Brothers Under the Skin (rev. 1951), pp. 101-03. 15 Coolidge, Chinese Immigration, p. 188.

gration for all Chinese except Chinese officials, merchants, students, teachers, and travelers for pleasure. 18 Supplemental legislation to that act also prohibited Chinese laborers from reentering the country, as provided for in the 1882 act, unless they reentered prior to the effective date of the legislation. 19

Senator Matthew C. Butler of South Carolina summed up the congressional efforts to exclude Chinese by stating:

[I]t seems to me that this whole Chinese business has been a matter of political advantage, and we have not been governed by that deliberation which it would seem to me the gravity of the question requires. In other words, there is a very important Presidential election pending. One House of Congress passes an act driving these poor devils into the Pacific Ocean, and the other House comes up and says, "Yes, we will drive them further into the Pacific Ocean, notwithstanding the treaties between the two governments."

20

Nevertheless, the Chinese exclusion law was extended in 189221 and 1902,22 and in 1904 it was extended indefinitely.23

Although challenged by American residents of Chinese ancestry, the provisions of these exclusion acts were usually upheld by judicial decisions. For example, the 1892 act24 mandated that Chinese laborers obtain certificates of residency within 1 year after the passage of the act or face deportation. In order to obtain the certificate, the testimony of one credible white witness was required to establish that the Chinese laborer was an American resident prior to the passage of the act. That requirement was upheld by the United States Supreme Court in Fong Yue Ting v. United States. 25

Literacy Tests and the Asiatic
Barred Zone

The racial nature of immigration laws clearly manifested itself in further restrictions on prospective immigrants who were either from Asian coun

18 Ch. 19 Ch.

17 Ch. 220, 23 Stat. 115 (1884). 1015, 25 Stat. 476 (1888). 1064, 25 Stat. 504 (1888). 20 19 Cong. Rec. 8218 (1888). 21 Ch. 60, 27 Stat. 25 (1892). 22 Ch. 641, 32 Stat. 176 (1902). 23 Ch. 1630, 33 Stat. 428. (1904). 24 Ch. 60, 27 Stat. 25 (1892). 25 149 U.S. 698 (1893).