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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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