HISTORY OF IMMIGRATION REGULATION IN AMERICA

The history of federal regulation of immigration is one of a
transformation from a largely open system to one where federal rules
govern nearly every aspect of the immigrant experience, from the
conditions under which new residents may enter to the terms under which
they may labor.

Prior to the end of the nineteenth century, immigration
restriction was minimal: the government “counted the number of
immigrants for statistical purposes, and it decreed certain minimum living
conditions aboard ship.” JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS
OF AMERICAN NATIVISM, 1860-1925, 43 (1983); see also SUCHENG CHAN,
European and Asian Immigration into the United States in Comparative
Perspective, 1820s to 1920s, in IMMIGRATION RECONSIDERED: HISTORY,
SOCIOLOGY AND POLITICS, 62 (Virginia Yans-McLaughlin, ed.,1990) (finding
that “[e]xcept for the sedition laws passed in the early years of the republic,
the United States had no immigration laws until 1875, when prostitutes and
convicts were excluded.”). In 1882, Congress denied entry to “convicts, 85
Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 193 of 206
earliest colonial settlements in the 1600s, more-established residents often
reacted negatively to immigrants perceived as different or in some way
threatening.
Congress often aimed such legislation at Asians. Examples 86
include: the 1882 Chinese Exclusion Act; the “Gentlemen’s Agreement of
1907,” which prevented the immigration of Japanese men; and the 1924
Immigration Act’s exclusion of “aliens ineligible for citizenship,” which
included “peoples of all the nations of East and South Asia.” Ngai at 37.
An 1877 Congressional Report on the proposed Chinese Exclusion Act
demonstrates the racial attitudes that drove these policies: the report
contended that “‘[t]here is not sufficient brain capacity in the Chinese race
to furnish motive power for self-government. Upon the point of morals,
there is no Aryan or European race which is not far superior to the
lunatics, idiots, and persons likely to become a public charge.” Id. This
law added to the basic restrictions first instituted by the federal government
in 1875, when Congress excluded from entry “persons convicted of ‘crimes
involving moral turpitude’ and prostitutes.” MAE M. NGAI, IMPOSSIBLE
SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA, 59 (2004).
Though these federal laws restricted who could enter the United
States, they did not place any numerical quotas or absolute restrictions on
any class of persons. Reflecting a society dominated by the proposition
that racial identity determined one’s capacity to participate in society,
however, late nineteenth-century immigration law enacted much more
robust restrictions on immigration from countries identified by
contemporary ideology as populated by “inferior” races. Years of 86
Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 194 of 206
Chinese.” Kitty Calavita, The Paradoxes of Race, Class, Identity, and
“Passing”: Enforcing the Chinese Exclusion Acts, 1882-1910, 25 LAW &
SOC. INQUIRY 1, 4.
This opposition to immigration came from a wide variety of groups 87
and perspectives. Labor unions, fearful that immigrants drove down
wages, frequently agitated for restrictions on entry, though their positions
were equivocal; many union leaders–like Samuel Gompers of the
American Federation of Labor–were immigrants or deeply connected to the
immigrant experience. Higham at 70-72. The Ku Klux Klan, originally
organized in the South after the Civil War to intimidate black voters,
reappeared in northern areas in 1915 to take part in the debate about
immigration, arguing for restrictions. See Higham, 286-99. This version of
the Klan, unlike “the first Klan, which admitted white men of every type and
background . . . accepted only native-born Protestant whites and combined
an anti-Negro with an increasingly anti-foreign outlook.” Id. at 288. Other
groups argued that immigrants were responsible for crime and disorder in
America’s rapidly growing cities, and that social order and control required
restrictions on who could enter the country. See, e.g. Higham at 90
(finding that “[a]nti-foreign sentiment filtered through a specific ethnic
stereotype when Italians were involved; for in American eyes they bore the
mark of Cain. They suggested the stiletto, the Mafia, the deed of
impassioned violence.”). Finally, some contended that immigrants,
particularly those who were from southern and eastern Europe and were
Catholic or Jewish, were diluting American culture by undermining its
traditional bases. See Higham at 95-96 (establishing that “[h]ardly had the
new [southern and eastern European] immigration begun to attract
attention when race-conscious intellectuals discovered its hereditary taint.
In 1890 the Brahmin president of the American Economic Association
alerted his fellow scholars to the new tide of ‘races . . . of the very lowest
stage of degradation.’ About the same time [U.S. Senator] Henry Cabot
Lodge noticed the shift away from northwestern Europe and began to
bristle at its racial consequences.”). See also Ngai, IMPOSSIBLE SUBJECTS
at 93 (finding that “[t]he Johnson-Reed Immigration Act of 1924 was
195
agitation led to new restrictions on who could enter the United States in the
years during and after the First World War. In 1917, Congress restricted 87
Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 195 of 206
motivated primarily by political concerns over the country’s ethnic and
racial composition, but economic factors were still relevant.”).
The law “exclude[d] from the United States not only individual 88
advocates of violent revolution but also those who advocated sabotage or
belonged to revolutionary organizations; [and] second, [determined] to
deport any alien who at any time after entry was found preaching such
doctrines.” Higham at 202.
The literacy test prevented entry for “adult immigrants unable to 89
read a simple passage in some language,” with only two exceptions: “[a]n
admissible alien might bring in members of his immediate family despite
their illiteracy, and in the interest of Russian Jews the same exemption
applied to all aliens who could prove they were fleeing from religious
persecution . . . refugees from political prosecution received no such
exemption.” Higham at 203.
196
immigration by political radicals and imposed a literacy test on those 88
seeking entry. Higham at 202. The 1921 Immigration Act tightened 89
restrictions on immigration, establishing “the first sharp and absolute
numerical restrictions on European immigration” in United States history
and implementing “a nationality quota system based on the pre-existing
composition of the American population.” Id. at 311. These attempts at
restricting immigration culminated in the Immigration Act of 1924, which
capped yearly entries into the United States at 150,000, with quotas
assigned to each country based on two percent of the foreign-born
individuals of each nationality in the United States in 1890. RONALD
TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN
Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 196 of 206
Previous laws had excluded Chinese and Asian Indian immigrants 90
from entering the United States; the 1924 Act simply solidified these efforts
to restrict Asian immigration. Takaki at 209. Because the Philippines
became a United States possession after the 1898 war with Spain,
however, the act did not restrict Filipino migration to Hawaii or the United
States mainland. Filipino migration therefore increased dramatically after
1924 as more jobs became available. Ngai at 103. In 1930, 56,000
Filipinos, most of them men, lived on the west coast. Id. That number
represented a tenfold increase from 1920. Id. Their presence sometimes
led to violence from locals. In 1927, a Washington apple grower brought
eleven Filipino workers he hired to a local jail for protection after he learned
that white people had threatened to “‘deport’” them. Id. at 105. At the
same time, more than 500 Filipinos left the Yakima Valley region “after
white residents threatened to attack them.” Id.
According to historian Mae Ngai, “while practicing exclusion toward 91
Asia and restriction toward Europe, Congress imposed no practical
restrictions on immigration from the countries of the Western Hemisphere.”
Ngai continues to say that many nativistic Americans, however, supported
exclusion or restriction of Mexican immigrants, who were considered part
of an “unstable ‘mongrel race.’” Mae Ngai, The Lost Immigration Debate:
Border Control Didn’t Always Dictate Policy, 3, BOSTON REVIEW
(September/October 2006). Retrieved July 23, 2007 from
http:/bostonreview.net/BR31.5/ngai.html.
197
AMERICANS, 209 (2d ed., 1998). The Act also excluded “aliens ineligible for
citizenship” from entry, adding Japanese people to the list of those who
were excluded from immigrating altogether. The Act did not, however, 90
restrict immigration from Mexico or other countries in the Western
Hemisphere, though it did establish regulations for entry. Ngai, 91
IMPOSSIBLE SUBJECTS at 50.
Historian Mae Ngai has noted that passage of the 1924 act meant
Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 197 of 206
We note that the descendants of non-Asian immigrants who 92
entered this country before the restrictions of the 1920s who condemn
present-day illegal immigrants by pointing out that “when my relatives
came to this country, they followed the law” ignore one very crucial fact:
virtually no law existed to prevent anyone from entering the country prior to
that period. No federal crime for unauthorized entry existed until 1929.
See Ngai, IMPOSSIBLE SUBJECTS at 60.
Historian Mae Ngai notes that Mexican immigrants were still subject 93
to immigration requirements in the 1924 law, which included presentation
of a passport or visa; payment of a head tax; and inspection at entry. Ngai,
Lost Immigration Debate at 4. Ngai describes this process as it occurred
for Mexicans seeking to enter the United States in a later period:
“[inspection at the Mexican border involved a degrading procedure of
bathing, delousing, medical-line inspection, and interrogation. The baths
were new and unique to Mexican immigrants, requiring them to be
inspected while naked, have their hair shorn, and have their clothing and
baggage fumigated. Line inspection, modeled after the practice formerly
used at Ellis Island, required immigrants to walk in single file past a
medical officer.” Ngai, IMPOSSIBLE SUBJECTS at 68.
198
“that numerical restriction created a new class of persons within the
national body–illegal aliens–whose inclusion in the nation was at once a
social reality and a legal impossibility.” Ngai, IMPOSSIBLE SUBJECTS at 57.
Much of federal immigration law in subsequent decades would be aimed at
identifying and controlling these illegal residents, provisions not previously
present in American law. Before the changes brought by the immigration 92
regulation of the 1910s and 1920s, the process of entering the United
States as an immigrant was fairly simple, if invasive: an immigrant need
only present herself at the border for inspection. Once immigrants cleared this initial hurdle (represented to many by Ellis Island), they were
free to enter the country, and did not need to carry any documents or do
anything to prove particular status. The passage of quotas and other 94
restrictions on immigration, however, meant that the status of many aliens
in the United States had become far from clear. Much of the subsequent 95
history of American immigration law is the history of an attempt to
determine the status of aliens living in the United States. Only in 1929did the United States first provide penalties for unlawful entry, making the
first such entry a misdemeanor punishable by up to a year in jail or a
$1,000 fine and the second offense a felony, punishable by two years
imprisonment or a $2,000 fine. Ngai, IMPOSSIBLE SUBJECTS at 60.
Congress made occasional changes to this immigration system over
the next forty years, but the use of quotas and the principal of national 97
exclusion remained central to the federal scheme. The most fundamentalchange in federal regulation of immigration came with the passage of the
Immigration Act of 1965. This act abolished the national-origins quotas
established in the 1924 act and allowed an annual admission of 170,000
Immigrants from the Eastern Hemisphere and 120,000 from the Western.
Takaki, at 419. The restrictions on immigration for the Western
Hemisphere represented a radical change in restrictions on immigration
from that part of the world. Ngai, IMPOSSIBLE SUBJECTS at 258. The law 98
still provided for national quotas, but distributed them equally, not on the
basis of previous immigration in particular years. Takaki at 419. The law
also exempted from the quota spouses, minor children and parents of
United States citizens. Id. Immigrants would be admitted according to
certain preference categories for adult family members, professionals,
workers for unfilled positions and refugees. Id. These changes led to an
even more active role for the federal government in investigating and
determining the status of immigrants, since “strict positive certification wasrequired to ensure that they would not compete with Americans.” Aristide
R. Zolberg, Reforming the Back Door: The Immigration Reform and Control
Act of 1986 in Historical Perspective, 320, in IMMIGRATION RECONSIDERED
(YANS-MCLAUGHLIN, ed.). Still, the 1965 Act represented a major change in
the focus of immigration policy from a race-based policy to one that:
“clearly institutionalized family reunion as the leading principle governing
general immigration.” Id. 99
Congress extended its reach over the lives of aliens in the United
States with the 1986 Immigration Reform and Control Act (“IRCA”). The
Act established sanctions for employers who hired illegal aliens, providinga civil penalty of $250 to $2,000 for each worker hired and criminalpenalties for a “pattern and practice” of illegal hiring, including a fine of up
to $3,000 and six month prison sentences. Zolberg at 334. Such
employers also had to verify the immigration status of all job applicants. Id.
at 335. The Act also provided a means for illegal aliens to obtain amnesty
by “apply[ing] for legal status within an eighteenth-month period starting six
months after the bill became law.” Id. at 334. 100
During the 1990s Congress implemented procedures to limit the
rights of aliens to court review of administrative determinations of their
status. The Anti-terrorism and Effective Death Penalty Act (“AEDPA”) of
1996 “eliminated judicial review of deportation and exclusion orders for
noncitizens convicted of ‘aggravated felonies.’” Lenni B. Benson, Back to
the Future: Congress Attacks the Right to Judicial Review of Immigration
Proceedings, 29 CONN. L. REV. 1411, 1412. The act also removed a long establishedwaiver of deportability for long-term lawful United Statesresidents. Id. at 1412. That same year, Congress placed new restrictions
on immigration and review of agency removal decisions in the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”). Id.
That legislation increased resources for enforcement of the immigration
laws, made more aliens eligible for deportation or exclusion, limited agency
discretion to change immigrants’ status and increased the penalties for
violating immigration laws. Peter J. Spiro, Learning to Live with
Immigration Federalism, 29 CONN. L. REV. 1627, 1633 (1997). That act
also limited review of deportation orders in certain circumstances,
particularly those who had been convicted of certain crimes or based theirpetition on certain “disfavored claims.”The history of federal regulation of immigration, then, is one of the
creation of an intricate and complex bureaucracy that restricted who could
immigrate to the United States and under what terms. Those immigration
regulations have also come to define the conditions under which aliens can
find employment in the country. The creation of this complex federal
bureaucracy not only altered the role of the federal government in relation
to immigration; it also transformed the status of immigrants in American
society. A foreign-born person in the United States in 1870 had a
presumptively legal status; no careful legal inquiry was required to
determine whether that person had a right to reside in the country. By
1990, however, determining whether a foreign-born person enjoyed a legal
right to remain in the United States demanded a detailed legal examinationthat involved numerous federal statutes, several adjudicatory bodies, and anumber of appeals and exceptions. More than one hundred years of
federal regulation have made the federal supremacy over immigration an
intricate affair.