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Kevin R. Johnson



Excerpted from: Kevin R. Johnson, Race, The Immigration Laws, And Domestic Race Relations: a "Magic Mirror" into the Heart of Darkness, 73 Indiana Law Journal 1111-1159, 1112-1148 (Fall, 1998)(294 Footnotes)
 


I.      THE HISTORY OF RACIAL EXCLUSION IN THE U.S. IMMIGRATION LAWS
        A.      From Chinese Exclusion to General Asian Subordination
                  1.      Chinese Exclusion and Reconstruction
                   2.      Japanese Internment and Brown v. Board of Education
       B.        The National Origins Quota System
       C.       Modern Racial Exclusion
                  1.       The War on "Illegal Aliens" a/k/a Mexican Immigrants
                  2.       Asylum, Haitian Interdiction, and the Politics of Race
                  3.      Proposition 187 and Race


Racism, along with nativism, economic, and other social forces, has unquestionably influenced the evolution of immigration law and policy in the United States. It does not exist in a social and historical vacuum. Foreign and domestic racial subordination instead find themselves inextricably linked.

In untangling this history, keep in mind critical differences between traditional immigration law and ordinary public law. Although the Equal Protection Clause generally requires strict scrutiny of racial classifications in the laws, the Supreme Court long ago--in a decision undisturbed to this day--upheld discrimination on the basis of race and national origin in the admission of noncitizens into the country. Similarly, even though discrimination on the basis of alienage status in modern times may mask an intent to discriminate against racial minorities, the Supreme Court ordinarily defers to alienage classifications made by Congress. Because the substantive provisions of the immigration laws historically have been immune from legal constraint, the political process allows the majority to have its way with noncitizens.

A. From Chinese Exclusion to General Asian Subordination


The horrendous treatment of Chinese immigrants in the 1800s by federal, state, and local governments, as well as by the public at large, represents a bitter underside to U.S. history. Culminating the federalization of immigration regulation, Congress passed the infamous Chinese exclusion laws barring virtually all immigration of persons of Chinese ancestry and severely punishing Chinese immigrants who violated the harsh laws. Discrimination and violence, often rooted in class conflict as well as racist sympathies, directed at Chinese immigrants already in the United States, particularly in California, fueled passage of the laws. The efforts to exclude future Chinese immigrants from our shores can be seen as linked to the deeply negative attitude toward Chinese persons already in the country.

The Supreme Court emphasized national sovereignty as the rationale for not disturbing the laws excluding the "obnoxious Chinese" from the United States. In the famous Chinese Exclusion Case, the Supreme Court stated that "[t]he power of exclusion of foreigners [is] an incident of sovereignty belonging to the government of the United States, as a part of [[[its] sovereign powers delegated by the Constitution." Similarly, in Fong Yue Ting v. United States, the Court reasoned that "[t]he right of a nation to expel or deport foreigners ... is as absolute and unqualified as the right to prohibit and prevent their entrance into the country."

Congress later extended the Chinese exclusion laws to bar immigration from other Asian nations and to prohibit the immigration of persons of Asian ancestry from any nation. The so-called Gentleman's Agreement between the U.S. and Japanese Governments in 1907-08 greatly restricted immigration from Japan. The Immigration Act of 1917 expanded Chinese exclusion to prohibit immigration from the "Asiatic barred zone." A 1924 law, best known for creating the discriminatory national origins quota system, allowed for the exclusion of noncitizens "ineligible to citizenship," which affected Asian immigrants who as non-whites were prohibited from naturalizing.

Other aspects of the immigration and nationality laws reinforced the anti-Asian sentiment reflected in the exclusion laws. For example, the Supreme Court interpreted the naturalization law, which allowed "white" immigrants as well as (after the Civil War) persons of African ancestry to naturalize, as barring Asians from naturalizing. In United States v. Thind, the Court held that an immigrant from India was not "white" and therefore was ineligible for naturalization. Similarly, in Ozawa v. United States, the Court held that a Japanese immigrant, as a non-white, could not naturalize. This manipulation of the citizenship rights of racial minorities harkens back to Dred Scott v. Sandford, in which the Supreme Court held that a freed Black man was not a citizen for the purpose of invoking the jurisdiction of the federal courts.

Incorporating the racial discrimination encoded in federal naturalization law, state laws buttressed the racial hierarchy. A number of states, most notably California, passed so-called "alien land laws" early in the twentieth century that barred the ownership of certain real property by noncitizens "ineligible to citizenship." The measures were directed at Japanese immigrants, who as non-whites barred from naturalization, were "ineligible to citizenship." The political and social milieu in which these laws were passed demonstrates their racial animus. For example, anti-Japanese venom dominated the campaign culminating in the alien land law by initiative in California. Despite the obvious racial overtones, the Supreme Court rejected the contemporary challenges to the land laws.

Racism unquestionably influenced the anti-Asian exclusion in the immigration laws.
The national climate of opinion, pervaded by racism and a burgeoning feeling of ethnic superiority or what [has been] called the "Anglo-Saxon complex," certainly contributed not just to the violence but also to the virtual unanimity with which the white majority put its seal of approval on anti-Chinese ends if not means.

1. Chinese Exclusion and Reconstruction

Congress passed the first wave of discriminatory immigration laws not long after the Fourteenth Amendment, which bars states from denying any person equal protection of law, and other Reconstruction Amendments went into effect. With the harshest treatment generally reserved for African Americans formally declared unlawful, the nation transferred animosity to another discrete and insular racial minority whose immigration status, combined with race, made such treatment more socially acceptable and legally defensible. This issue arose in the congressional debates over ratification of the Fourteenth Amendment when a member of Congress declared that Chinese persons could be treated less favorably than African Americans because "[the Chinese] are foreigners and the negro is a native."

The relationship between Chinese exclusion and the revolutionary improvements for African Americans during Reconstruction often goes ignored, even though pre-Civil War state laws regulating the migration of slaves served as precursors to the Chinese exclusion laws. Congress enacted the national exclusion laws with the support of southerners interested in rejuvenating a racial caste system as well as self-interested Anglos from California.

It was no coincidence that greater legal freedoms for African Americans were tied to Chinese misfortunes. As one historian observed, "[w]ith Negro slavery a dead issue after 1865, greater attention was focused [on immigration from China]." Political forces quickly reacted to fill the racial void in the political arena. In California, partisan political concerns, along with labor unionism, in the post-Civil War period figured prominently in the anti-Chinese movement.
In 1867 [the year after the Fourteenth Amendment went into effect] California Democrats launched their offensive against the Chinese. The result ... was a bonanza. The party laid hands on an issue of enormous potential in its own right--a new issue, uncontaminated by the sad history of the civil war, yet evocative of that entire syndrome of hatreds and loyalties which still could not quite openly be declared.

The relationship between the treatment of African Americans and other racial minorities can be seen in a constitutional landmark of the nineteenth century. In his dissent in Plessy v. Ferguson, often lauded for its grand pronouncement that "[o]ur Constitution is color-blind," Justice Harlan noted the irony that the "separate but equal" doctrine applied to Blacks, who unquestionably were part of the political community, but not Chinese immigrants, "a race so different from our own that we do not permit those belonging to it to become citizens of the United States" and who generally are excluded from entering the country. Seeking to protect Blacks by denigrating the Chinese, Justice Harlan left no doubt about his sympathies on the question of racial superiority:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Some might contend that this analysis fails to recognize that the courts at various times invoked the law to protect Chinese immigrants. A most prominent example is Yick Wo v. Hopkins, in which the Supreme Court held that discriminatory enforcement of a local laundry ordinance against "aliens and subjects of the Emperor of China" violated the Equal Protection Clause of the Fourteenth Amendment. Though often cited for the proposition that a facially neutral law enforced in a racially discriminatory manner violates the Constitution, the decision, rather than a commitment to racial equality, represented an early foray by the Supreme Court in invalidating economic regulation, which reached its high-water mark during the Lochner era. In any event, as the Court's treatment of the exclusion laws reveals, Yick Wo is far from representative of the prevailing judicial attitude toward the rights of persons of Chinese ancestry during the late 1800s.

2. Japanese Internment and Brown v. Board of Education

The historical context of the infamous decision to intern Japanese Americans, as well as Japanese immigrants, during World War II sheds light on the interrelationship between society's treatment of different minority groups. The Supreme Court ruling in Korematsu v. United States shows how, absent the protection of law, disfavored racial minority citizens might be treated. In that case, the Supreme Court allowed U.S. citizens of Japanese ancestry, including some born and bred in this country, to be detained in internment camps. This decision reveals the inherent difficulties in drawing fine legal distinctions between noncitizens and citizens who share a common ancestry. In attempting to defuse the Japanese threat to national security, the U.S. Government refused to distinguish between noncitizens who immigrated from Japan and citizens of Japanese ancestry. Lumped together as the monolithic "Japanese" enemy, all were interned. The U.S. Government classified all persons of Japanese ancestry, regardless of their immigration status, as "foreign."

As the Japanese suffered from internment during World War II, African Americans, due in no small part to increased labor demand during the war, experienced improved employment opportunities and less discrimination. As in the nineteenth century, Asian American exclusion from the national community was combined with some improvements for African Americans.

The timing of the Supreme Court's decision in Korematsu, one of the most well-known equal protection cases of the twentieth century, should not be ignored. Korematsu (1944) is an infamous case, while Brown v. Board of Education (1954), which vindicated the rights of African Americans, is much revered. Though close in time, these cases reveal the very best and worst of American constitutional law. While persons of Japanese ancestry were rebuilding the remnants of their lives after the turmoil of legally sanctioned internment, African Americans saw hope in being told that "separate but equal" was no longer the law of the land.

Ultimately, some of the harshest aspects of the anti-Asian laws were relaxed. Pressures to end exclusion of Chinese immigrants to the United States grew during World War II as it became increasingly embarrassing for the nation to prohibit immigration from a valued ally, China, in the war effort. Japanese propaganda efforts during World War II made much of the Chinese exclusion laws. In the end, foreign policy concerns, not humanitarian ones, caused Congress in 1943 to allow China a minimum quota of immigrant visas and to allow Chinese immigrants to naturalize. In this way, the United States relaxed the Chinese exclusion laws for foreign policy reasons similar to those that helped bring about Brown v. Board of Education.

The Vietnam War also reveals a relationship between Asian subordination and improvements for African Americans. While the civil rights movement of the 1960s achieved improvements for African Americans, the escalation of the war in Vietnam during this time was accompanied by the growth of racism directed at the Vietnamese people, which lingers to this day. Seeing the racial roots of the war, as well as the impact on domestic people of color, two of the most prominent African American leaders of their generation, Martin Luther King, Jr. and Malcolm X, though of different political persuasions, opposed U.S. involvement in Vietnam.

As this sad history demonstrates, Asian Americans--whatever their immigration status and however long they or their ancestors have lived in the United States--historically have been treated as foreigners in this land. Some claim that the immigration laws discriminate against Asians to this day. Besides suffering from efforts to exclude persons who shared their ancestry from the national community, Asian Americans stood accused of the high crime against the American "melting pot" mythology of refusing to assimilate. Ironically, the law prevented full assimilation and equal citizenship. For example, due to the bar to naturalization, immigrants from Asia (as non-whites) were disenfranchised and prohibited from exercising political power as citizens, which in the long run detrimentally affected Asian American political involvement. Barred from the political community, Asian Americans were denied the possibility of more fully assimilating into the mainstream and then suffered criticism for failing to assimilate.

B. The National Origins Quota System

In 1924, Congress established the much-reviled national origins quota system, a formulaic device designed to ensure stability in the ethnic composition of the United States. Specifically, the system served to prefer white immigrants. It initially permitted annual immigration of up to two percent of the number of foreign-born persons of a particular nationality in the United States as set forth in the 1890 census. In operation, the quota system "materially favored immigrants from Northern and Western Europe because the great waves from Southern and Eastern Europe did not arrive until after 1890." Congress enacted the quota system in the wake of passing the literacy test in 1917; this test excluded "[a]ll aliens over sixteen years of age, physically capable of reading, who can not read the English language, or some other language or dialect, including Hebrew or Yiddish." In operation, the test, as intended, restricted the immigration of non-English speakers, including Italians, Russians, Poles, Hungarians, Greeks, and Asians.

A House report offers a clear articulation of the purposes of the national origins quota system:
"With full recognition of the material progress which we owe to the races from southern and eastern Europe, we are conscious that the continued arrival of great numbers tends to upset our balance of population, to depress our standard of living, and to unduly charge our institutions for the care of the socially inadequate.
If immigration from southern and eastern Europe may enter the United States on a basis of substantial equality with that admitted from the older sources of supply, it is clear that if any appreciable number of immigrants are to be allowed to land upon our shores the balance of racial preponderance must in time pass to those elements of the population who reproduce more rapidly on a lower standard of living than those possessing other ideals."
....
"... [The quota system] is used in an effort to preserve, as nearly as possible, the racial status quo in the United States. It is hoped to guarantee, as best we can at this late date, racial homogeneity ...."

As one commentator remarked approvingly in 1924, the national origins quota system was "a scientific plan for keeping America American." Implicit in these rationales, of course, was the view that persons of northern European stock were superior to persons of other groups. In a similar vein, the conventional wisdom was that "[t]he real assimilation of aliens depends to a very large extent upon their associates after entering--'we can easily assimilate' them 'if their origins resemble the origins of the people they find when they get here."'

The racial hierarchy endorsed by proponents of the national origins quota system was entirely consistent with the academic literature of the day, which viewed the "races" of southern and eastern Europe as inferior to northern European ones. In effect, southern and eastern European immigrants, commonly thought of today as white ethnics, were "racialized" as non-white, and therefore unworthy of joining the national community.

A heavy dose of anti-Semitism fueled the demand for the national origins quota system. Proponents hoped to limit the immigration of Jewish persons to the United States. This anti-Semitism mirrored the discrimination suffered by Jewish Americans in this country. During World War II, anti-Semitism, enforced and reinforced by the quota system, unfortunately influenced the U.S. Government's refusal to accept many Jewish refugees fleeing the Holocaust, one of the tragedies of the twentieth century.

Other "races" also were affected by the quota system. Although Asian Americans were excluded from immigrating to the United States well before 1924, an oft-overlooked impact of the quota system was that it discouraged immigration from Africa, historically the source of precious little immigration to the United States. This is entirely consistent with anti-Black subordination in the country and this nation's later refusal to accept refugees fleeing political turmoil in Haiti, a country populated primarily by persons of African ancestry.

Despite persistent criticisms, including claims that it adversely affected U.S. foreign policy interests, the Anglo-Saxon, northern European preference in the immigration laws remained intact until 1965. Congress, though it tinkered somewhat with the quota system, maintained the quotas in the Immigration & Nationality Act (INA), the comprehensive immigration law that (as frequently amended) remains in place today. President Truman vetoed the INA (a veto that Congress overrode) because it carried forward the discriminatory quota system. In defending the INA's version of the quota system, one commentator of the day claimed that the nation's ethnic composition should not be changed and that, because some known Communists opposed the law, opponents should be circumspect before joining the fray. A Senate report concluded that the national origins quota system "preserve[d] the sociological and cultural balance in the United States," which was justifiable because northern and western Europeans "had made the greatest contribution to the development of [the] country" and the nation should "admit immigrants considered to be more readily assimilable because of the similarity of their cultural background to those of the principal components of our population."

In sum, the national origins quota system reflects this nation's preoccupation with its ethnic balance. The system was based on the desire to limit the immigration of inferior "races" from southern and eastern Europe. Domestic discrimination accompanied the exclusion in the laws. Long-standing anti-Semitism, as well as prejudice against other immigrant groups, existed in the United States.

The life of the national origins quota system spanned a period when domestic racial minorities enjoyed some improvements under the law. While domestic minorities gained formal legal rights, noncitizens at best remained in the same rightless place in American society. Many noncitizens lost rights with the INA, which besides maintaining the quota system, also included some draconian provisions punishing noncitizen political minorities in the name of fighting Communism.

C. Modern Racial Exclusion

In the wake of the Civil Rights Act of 1964, Congress passed the Immigration Act of 1965. This new law abolished the national origins quota system and barred racial considerations from expressly entering into decisions about immigrant visas; it also imposed for the first time a ceiling (120,000) on migration from the Western Hemisphere. Immigration from the Western Hemisphere previously had been restricted not through quotas but through vigorous enforcement of the exclusion and deportation grounds. The limitation on Western Hemisphere immigration was part of a compromise to those who feared a drastic upswing in Latin American immigration. Consequently, Congress coupled more generous treatment of those outside the Western Hemisphere with less generous treatment of Latin Americans.

With the demise of the quota system, the racial demographics of the immigration stream changed significantly. Increasing numbers of immigrants of color came to the United States. Not coincidentally, concern with immigration, particularly the race of the immigrants, grew over the coming decades.

Importantly, the abolition of the national origins quota system, though removing blatant discrimination from the immigration laws, failed to cleanse all remnants of racism. Various characteristics of the modern immigration laws, though facially neutral, disparately impact noncitizens of color from developing nations. The 1965 Act replaced the national origins quotas with an across-the-board annual numerical limit of 20,000 immigrants from each nation. This ceiling in operation creates lengthy lines for immigrants from developing nations, such as Mexico, the Philippines, and India, and relatively short, or no, lines for people from most other nations. For example, as of March 1998, fourth-preference immigrant visas (brothers and sisters of adult citizens) were being granted to Philippine nationals who applied in April 1978, compared to October 1987 for virtually all other nations. For third-preference immigrant visas (married sons and daughters of citizens), the applications of Mexican citizens filed in May 1989 were being processed in March 1998, compared to September 1994 for applicants from almost every other nation. Thus, similarly situated persons (e.g., siblings and children of U.S. citizens) may face radically different waits for immigration depending on their country of origin, with accompanying racial impacts.

Other changes to the immigration laws reflect racial concerns. Many have lauded the Refugee Act of 1980, which for the very first time created a general right to apply for asylum in the United States for noncitizens fleeing political and related persecution in their homelands. The Act, however, was motivated in part by a desire to limit the number of Vietnamese refugees accepted by the United States, whom the President had admitted liberally after the fall of Saigon in 1975. The law established numerical limits on refugee admissions and generally restricted the power of the President to admit refugees, with the hope of preventing future mass migrations. Years after Congress passed the law, Vietnamese citizens brought suit charging that the U.S. Government discriminates against them based on nationality in processing visa applications.

Similarly, the immigration laws allow for the exclusion of persons likely to become public charges, an inadmissibility ground given more teeth in 1996 amendments to the immigration laws. The public charge exclusion has a disproportionate effect on noncitizens of color from developing nations.

Passed before the heated immigration debates of the 1990s, the Immigration Act of 1990 reflects congressional concerns with the racial composition of the immigrant stream. The law created a new immigrant visa program that effectively represents affirmative action for white immigrants, a group that benefitted from preferential treatment under the national origins quota system until 1965. Congress, in an ironic twist of political jargon, established the "diversity" visa program, which though facially neutral prefers immigrants from nations populated primarily by white people. As congressional proponents envisioned, many Irish immigrated under the program. Indeed, a transitional diversity program required that forty percent of the visas would be issued to Irish immigrants. In fiscal year 1995, the leading source of immigrants under the permanent diversity visa program was Poland.

In short, the modern immigration laws have disparate racial impacts. As Professor Howard Chang has observed in a related vein, "[n]ativism ... is not merely a shameful feature of our past .... Nativism afflicts our politics today, posing a clear and present danger of new anti-immigrant legislation." The same is true for racial discrimination in the immigration laws. Other examples bring this point home.

1. The War on "Illegal Aliens" a/k/a Mexican Immigrants

One cannot fully appreciate the current debate over undocumented immigration in the United States without understanding how it fits into a long history. Especially in the Southwest, the immigration laws have helped ensure a disposable labor force. For example, during the Great Depression when the supply of unskilled labor dwarfed demand, Mexican immigrants as well as citizens of Mexican ancestry were "repatriated" to Mexico at the behest of governmental authorities. Later, under the Bracero Program in the 1940s and 1950s, an estimated one million Mexican workers were temporarily admitted into the country to work in agriculture.
At times, the call for immigration restrictions has been expressly anti-Mexican. For example, in 1956, the Duke Law School's Law & Contemporary Problems published an article ironically entitled "A Critical Analysis of the Wetback Problem," which referred to the 1950s as the "wetback decade" and blamed undocumented immigration from Mexico with "displacement of American workers, depressed wages, increased racial discrimination toward Americans of Mexican ancestry, illiteracy, disease, and lawlessness." Though the term "wetbacks" has been replaced in today's parlance with "illegal aliens," the modern restrictionist movement plays on remarkably similar--though often sanitized--themes.

Despite the fact that undocumented persons come from nations all over the world, the near exclusive focus of governmental and public attention at the tail end of the twentieth century has been on undocumented immigration from Mexico. The racial impact of the recent push to crack down on "illegal aliens" is unmistakable. Well-publicized border enforcement operations, little different from military operations, in El Paso, Texas (Operation Blockade, later renamed Operation Hold the Line due to protests from the Mexican Government) and San Diego, California (Operation Gatekeeper) have been aimed at sealing the U.S.-Mexico border and keeping undocumented Mexican citizens from entering the United States. Indeed, U.S. military forces assisted the Immigration & Naturalization Service (INS) in policing the border. At the same time, reported abuses against Mexican nationals along the border continue unabated. For example, in 1997, a U.S. Marine on patrol shot and killed a teenager, Esequiel Hernandez, Jr. (a U.S. citizen who had no criminal record) while he was herding his family's goats near the border. The U.S. General Accounting Office found that, despite the border enforcement build-up, the evidence was inconclusive about whether the strategy had proven effective.

Public concern with undocumented Mexican immigration heightened at the same time that the population of persons of Mexican ancestry grew in the United States. In return, the resistance of Mexican Americans to anti-immigrant sentiment represents a fight for status. Similar to the often-heated debate over bilingual education and crime, restrictionist proposals are but another battlefield for Anglos and Mexican Americans to fight for status in the U.S. social hierarchy.

Besides conflict over social status, Mexican Americans, and Latinos more generally, have a self-interest in fighting overzealous border enforcement. In the fervor to locate and deport undocumented Mexican citizens, Mexican Americans, often stereotyped as "foreigners" by the national community, may fall within the enforcement net. In the infamous deportation campaign known as "Operation Wetback" in 1954, for example, "[t]he Mexican American community was affected because the campaign was aimed at only one racial group, which meant that the burden of proving one's citizenship fell totally upon people of Mexican descent. Those unable to present such proof were arrested and returned to Mexico." Similarly, evidence suggests that provisions of the immigration laws that allow for the imposition of sanctions on those who employ undocumented persons, have resulted in "'a serious pattern of discrimination"' by employers against persons of Latin American, as well as Asian, ancestry.

The historical relationship between subordination of Mexican Americans, a "foreign" minority, and African Americans, viewed as a domestic minority, is telling. During the New Deal, while the government scrambled to help citizens and provided public benefits to citizens who satisfied eligibility requirements, Mexican American citizens as well as Mexican immigrants were effectively deported to Mexico. In 1954, the same year that the Supreme Court handed down the much-lauded Brown v. Board of Education decision, the U.S. Government commenced "Operation Wetback," the mass-deportation campaign directed at undocumented Mexicans. Ironically, the war on Mexican immigrants, as well as Mexican American citizens, began at the same time that the formal legal rights of African Americans were finally being recognized. At that time, it was far from clear that the Equal Protection Clause of the Fourteenth Amendment on which Brown rested even protected Mexican Americans. During a period when the law promised (though perhaps failed to deliver) new legal protections to African Americans, a legally sanctioned deportation campaign struck with a vengeance at persons of Mexican ancestry.

2. Asylum, Haitian Interdiction, and the Politics of Race

U.S. law and policy toward noncitizens who have fled civil war, political and other persecution, and genocide in their native lands historically have been influenced by nativism and racism. Domestic anti-Semitism, for example, unfortunately contributed to the Roosevelt administration's decision to turn its back on Jewish refugees fleeing the horrors of Nazi Germany. Congress passed the Refugee Act of 1980, among more humanitarian purposes, with the hope of reducing the number of refugees that the President admitted from Vietnam.

It has not only been race, however, that has influenced U.S. refugee and asylum policy. Persons from China and Cuba, for example, in the latter half of the twentieth century received generous treatment from the U.S. Government in no small part due to foreign policy concerns, namely that the U.S. Government was at odds with the government of their homelands; admitting refugees from China and Cuba implicitly condemned their governments. The United States generally denied asylum to Central Americans fleeing regimes with abominable human rights records that were U.S. allies, while granting relief to Poles fleeing a harsh communist government at odds with our own.

Policy conflicts occasionally resulted in confused and inconsistent U.S. policies. For example, the treatment of Chinese refugees, including many who claimed persecution because of resistance to China's one-child rule, was erratic at best. This results from the fact that, while foreign policy interests favored liberal admissions (and thus implicitly condemned China's communist government), domestic fears militated in favor of numerical limits. The U.S. Government initially showed sympathy for Chinese refugees. However, fearing a mass migration from China in the 1990s, the executive branch began to detain all Chinese migrants who came to the United States on ships, including the much-publicized Golden Venture in 1993, and to interdict Chinese ships outside U.S. territorial waters before they reached the mainland.

Despite the fluctuations on policy, the U.S. Government not infrequently went to extraordinary lengths to halt feared mass migrations of people of color. It implemented special detention policies directed at Central Americans and made concerted efforts to encourage potential asylum applicants to forego their claims and "voluntarily" depart. No U.S. policy approached, however, the government's extraordinary treatment of Black persons fleeing the political violence in Haiti. An oft-ignored fact is that, by stigmatizing African American citizens, "U.S. immigration policy toward Haiti may harm a historically disadvantaged group--namely, black Americans."

For much of recent history, the U.S. Government generally has supported the Haitian Government, in large part because the various regimes were stridently anticommunist. In stark contrast, both Democratic and Republican administrations have had notoriously poor relations with Haiti's neighbor, Cuba, since Fidel Castro came to power in 1959. The different relationships visibly influenced asylum and refugee policy toward persons fleeing the two nations: Cubans received much more favorable treatment than Haitians.

In the late 1970s, an increasing number of Haitians in makeshift boats sailed to south Florida. In 1981, the Reagan administration, to diminish the flow of refugees and to deter others from following, initiated a program in which the U.S. Coast Guard interdicted Haitian boats and allowed INS officers to screen applicants to determine whether they had plausible claims for asylum and withholding of deportation. Between 1981 and 1991, the Coast Guard interdicted about 25,000 Haitians.

After the military coup toppled the democratically elected government in September 1991, the Bush administration imposed economic sanctions on Haiti and suspended interdiction; in November 1991, interdiction recommenced. As a result of the coup, "'hundreds of Haitians [were] killed, tortured, detained without a warrant, or subjected to violence and the destruction of their property because of their political beliefs. Thousands [were] forced into hiding."' In the six months after October 1991, the Coast Guard halted over 34,000 Haitians on the high seas, which exceeded the number interdicted during the previous ten years.

To stop the flow of refugees, President Bush in May 1992 began immediately repatriating all Haitians without screening to determine whether they might be eligible to remain in the United States. Despite campaign promises to the contrary, President Clinton continued Haitian interdiction and repatriation and forcefully defended the policy against legal challenge.

The Supreme Court ultimately upheld the executive branch's unprecedented Haitian repatriation policy. The Court did so without squarely addressing the claim made in an amicus curiae brief of the NAACP, TransAfrica, and the Congressional Black Caucus that the policy was discriminatory and that the Haitians were subject to "separate and unequal" treatment.

Besides African American activist groups, others condemned the executive branch's harsh policies toward the Haitians as race-based. True enough, people of color from Haiti apparently were the first group of refugees ever singled out for interdiction on the high seas by U.S. armed forces, as well as for a series of extraordinary policies. The issue is complex, however. Cubans, who have received much more favorable treatment, also are people of color. The executive branch's foreign policy goals, in addition to race and concerns of a mass migration, may explain the disparate treatment between Haitians and Cubans.

Nonetheless, subtle racism inevitably reduced the potential for significant resistance to an interdiction program directed exclusively at Haitian refugees. As law professor Steve Legomsky declared, "'[t]he public would never [have stood] for this if the boat people were Europeans."' The race, class, language, and culture of the Haitians, as well as the popular belief that many had the HIV virus, unquestionably contributed to the domestic resistance to their admission.

In the end, asylum-seekers from Haiti, one of the few nations near the United States with a large Black population, suffered some of the harshest treatment imaginable from the U.S. Government. The Supreme Court's sanctioning of that treatment occurred in the aftermath of the violence in Los Angeles after the Rodney King verdict, a time when the nation's focus was on building racial harmony to avoid a repeat of violence in the future. At the same historic moment, the nation was striving to improve the place of African Americans at home while it was excluding Blacks from abroad.

3. Proposition 187 and Race

Race played a prominent role in the passage of California's Proposition 187, one of the racial milestones of the 1990s. To bolster his sagging re-election campaign, California Governor Pete Wilson capitalized on public dissatisfaction with immigration by staunchly supporting the initiative. Television advertisements emphasizing Wilson's unqualified support for Proposition 187 showed shadowy Mexicans crossing the border in large numbers. Supporters blamed undocumented Mexicans for California's economic woes that were more likely attributable to drastic reductions in federal defense spending required by the end of the Cold War and the demise of the Soviet Union.

Nativist and racist themes inflamed the bitter Proposition 187 campaign. One initiative sponsor, in a textbook example of nativist sentiment, boldly asserted that "'[i]llegal aliens are killing us in California.... Those who support illegal immigration are, in effect, anti-American."' An argument favoring the measure in a pamphlet distributed to registered voters proclaimed that "Proposition 187 will be the first giant stride in ultimately ending the ILLEGAL ALIEN invasion." One leader in the pro-187 campaign even played on fears that, unless citizens took steps like the initiative, Mexico might ultimately annex California.

The public statements of the drafters of Proposition 187 left the unmistakable imprint of racial animus. One initiative leader conjured up disturbing imagery of lynching, a device historically used to terrorize African Americans in the United States: "'[y]ou are the posse ... and [Proposition 187] is the rope."' Harold Ezell, a high-ranking INS official during the Reagan presidency who was loathed by Latino activists because of his derogatory comments about illegal aliens, attributed Proposition 187's widespread support to the fact that "'[t]he people are tired of watching their state run wild and become a third world country."' Barbara Kiley, mayor of an Orange County town, reportedly described the children of undocumented immigrants as "'those little f--kers."' Her husband and the initiative campaign's political consultant, Richard Kiley, observed that the public protests of Proposition 187 were counterproductive because "'[o]n TV there was nothing but Mexican flags and brown faces."' Barbara Coe, a Proposition 187 supporter, expressed fear of the "'militant arm of the pro-illegal activists, who have vowed to take over first California, then the Western states and then the rest of the nation."'

Election results were polarized along racial lines. White voters supported Proposition 187 by two-to-one and Latinos opposed it by a three-to-one margin. As the racially tinged campaign and racially polarized vote suggest, Proposition 187, though facially neutral, at its core focused on race. Although undocumented persons in the United States come from many nations other than Mexico, this never figured prominently in the debate over the initiative. Moreover, the measure, if implemented, will disparately impact certain minority communities. Undocumented Mexicans, Mexican American citizens, and citizens of other minority groups viewed as foreign, including Asian Americans, are the groups most likely to feel the enforcement sting of Proposition 187.

To this point, the courts have enjoined the implementation of most of Proposition 187, with the final disposition of the legal challenges unknown. Nonetheless, the law triggered national action. In 1996, Congress enacted welfare reform restricting benefits to lawful, as well as unlawful, immigrants. As with the Chinese exclusion laws, California blazed a trail for the nation.

Proposition 187 was about much more than immigration. The initiative represented the electorate's general frustration with changing racial demographics. While an effort to attack domestic racial minorities with full force is unsavory politically, an all-out war against noncitizens, with the attack being focused on their immigration status rather than their race, could be pursued. Proposition 187 thus reflects racial tensions in a way similar to the ever-popular English-only laws, which have racial impacts because of the link between language and national origin. Designation of English as the official language, though facially neutral, directly affects the Latino community. It therefore should not be surprising that the national origins quota system of 1924 came on the heels of the addition of the English literacy requirement to the immigration laws in 1917. Both constituted parts of an overall package to limit the immigration of minorities.

Two years after the voters passed Proposition 187, the electorate approved the California Civil Rights Initiative, which was designed to eliminate affirmative action by the State of California. This followed a University of California Board of Regents' decision to eliminate affirmative action in student admissions. Consequently, attacks on racial minorities followed attacks on immigrants of color.

II. LESSONS FROM THE IMMIGRATION LAWS FOR DOMESTIC MINORITIES
Immigration law offers a helpful gauge for measuring this nation's racial sensibilities. Long a fixture of immigration law, the plenary power doctrine, a judicially created immunity for substantive immigration decisions, emphasizes that the legislative and executive branches of the U.S. Government enjoy "plenary power" over immigration matters and that little, if any, room exists for judicial review. Though consistently criticized, and arguably narrowed by the Supreme Court, the doctrine continues to represent the law of the land. In this important way, immigration law has been, and remains to some extent, estranged from traditional public law, where the Constitution operates in full force.

At the tail end of the twentieth century, immigration law and policy have increasingly become a visible hotbed of racial conflict. This section analyzes the teachings of the plenary power doctrine for domestic race relations.

A. Racial Exclusions in the Immigration Laws Reinforce the Subordinated Status
of Minority Citizens in the United States
Academic attacks on the plenary power doctrine are legion, coming from many different angles. Some, for example, challenge the fundamental idea underlying the doctrine--that nations have unfettered sovereign power to seal their borders. Few, if any, modern defenders of the plenary power doctrine can be found in the legal academy.

Federal plenary power over immigration contrasts sharply with the Supreme Court's occasional strict scrutiny of state alienage classifications. In Graham v. Richardson, which invalidated a state welfare regulation, the Court recognized that "[a]liens as a class are a prime example of a 'discrete and insular' minority ... for whom heightened judicial solicitude is appropriate." This reasoning would seem to apply with full force to federal regulation. However, the Supreme Court consistently has been deferential to federal alienage classifications, just like it has been with respect to Congress's judgments about substantive immigration admissions criteria. For example, in Mathews v. Diaz, the Court invoked the plenary power doctrine and upheld limits on lawful immigrants' eligibility for a federal benefits program.

The plenary power doctrine fortunately has not been invoked in recent years to shield any laws as contrary to this nation's modern constitutional sensibilities as the infamous Chinese exclusion laws. Express racial and national origin exclusions, which would squarely contradict such icons of the law as Brown v. Board of Education, rarely arise in modern immigration law and policy. As we have seen, however, the facially neutral immigration laws of the modern era have distinctively racial impacts.

Assuming that under the plenary power doctrine noncitizens possess few, if any, constitutional protections with respect to entering the country, the implications of racial and national origin exclusions on citizens must be considered. Because the Constitution unquestionably protects the rights of citizens, citizens claiming injury have a better chance at successfully challenging the immigration laws than noncitizens directly affected by their operation. Courts have recognized that citizens in certain circumstances may challenge the lawfulness of immigration laws because of the impact on their rights.

Gerald Rosberg focuses on the damage to U.S. citizens sharing the race or national origin of groups barred from joining the national community:
[A racial or national origin] classification would ... require strict scrutiny, not because of the injury to the aliens denied admission, but rather because of the injury to American citizens of the same race or national origin who are stigmatized by the classification. When Congress declares that aliens of Chinese or Irish or Polish origin are excludable on the grounds of ancestry alone, it fixes a badge of opprobrium on citizens of the same ancestry.... Except when necessary to protect a compelling interest, Congress cannot implement a policy that has the effect of labeling some group of citizens as inferior to others because of their race or national origin.

Others also have observed the impacts of racial and national origin exclusions on citizens. In vetoing the INA, President Truman observed that the national origins quota system was founded on the idea
that Americans with English or Irish names were better people and better citizens than Americans with Italian or Greek or Polish names. It was thought that people of West European origin made better citizens than Rumanians or Yugoslavs or Ukrainians or Hungarians or Balts or Austrians. Such a concept ... violates the great political doctrine of the Declaration of Independence that "all men are created equal."

Similarly, in arguing for the abolition of the quota system, Secretary of State Dean Rusk recognized that excluding certain noncitizens suggested that "'we think ... less well of our own citizens of those national origins, than of other citizens."'

Brown v. Board of Education suggests that racial and national origin exclusions in the immigration laws adversely affect domestic minorities. In that case, the Supreme Court relied on social science studies documenting the fact that segregation of African Americans "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone." Similarly, exclusion from the country of immigrants of color may well "generate[] a feeling of inferiority as to the[] status in the community" of domestic minorities who share a similar racial and national origin background.

Racial exclusion of noncitizens under the immigration laws, be they express or covert, reveals to domestic minorities how they are viewed by society. The unprecedented efforts to seal the U.S.-Mexico border combined with the increased efforts to deport undocumented Mexicans, for example, tell much about how a majority of society views Mexican Americans and suggests to what lengths society might go, if permitted under color of law, to rid itself of domestic Mexican Americans. In fact, during the New Deal, Mexican American citizens, as well as Mexican immigrants, were "repatriated" to Mexico. It therefore is no surprise that the organized Mexican American community consistently resists the harsh attacks on immigration and immigrants. This is true despite sentiment among some Mexican Americans to restrict immigration because of perceived competition with immigrants in the job market.

For similar reasons, African American activist organizations protested when the U.S. Government acted ruthlessly toward poor Haitian refugees facing death from the political violence gripping Haiti. Asian activist groups criticized the treatment of Chinese immigrants in the 1990s, as well as anti-immigrant sentiment and welfare reforms that adversely affected the Asian immigrant community. These minority groups implicitly understand the link between racial exclusions and their place in the racial hierarchy in the United States. It is not just that they share a common ancestry, though that no doubt plays some role in the formulation of political support. These communities instead understand that animosity toward members of immigrant minority communities is not just limited to immigrants. In this way, immigration has proven to be a battlefield for status among Anglos and people of color in the United States.

The concerns of minority activists find support in psychological theory, which suggests that people generally view persons of national origin ancestries other than their own as fungible. Put differently, in-groups tend to define out-groups as homogeneous. The out-group homogeneity theory helps explain the persistence of racial stereotypes. Many have experienced the homogenizing of racial minorities in crude and obviously false statements about how all certain racial minorities "look alike." The theory supports the idea that society generally classifies all persons of Mexican ancestry, for example, as the same and fails to make fine legal distinctions between them based on such things as immigration status.

In the end, we must understand that the impact of racially exclusionary immigration laws does more than just stigmatize domestic minorities. Such laws reinforce domestic subordination of the same racial minority groups who are excluded. By barring admission of the outsider group that is subordinated domestically, society rationalizes the disparate treatment of the domestic racial minority group in question and reinforces that group's inferiority. Exclusion in the immigration laws must be viewed as an integral part of a larger mosaic of racial discrimination in American society.
 

 


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Thanks to Derrick Bell and his pioneer work: 
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