Immigration Fairness
For most of the first half of its history, the United States maintained an open border policy. This should come as no surprise to people who believe that one of the greatest characteristics of the United States was the freedom that yielded prosperity during that same period. However, I find that many people really don’t know the history of US immigration law. They seem to think that there were always restrictions, that “illegal entry” is a recent phenomenon, and that there was some time in the past when no exemptions were made. They like to shout meaningless slogans: “Wait in line! Do it the right way like my grandfather did!” What I found by looking into this history may surprise them. Let’s dig into it.
First, I should distinguish between immigration and naturalization. Immigration is a change in location; naturalization is a change in legal status. Immigration is the simple act of moving from one place to another. You could move to Canada or Mexico, but you would not automatically become a citizen of either country. Article I, Section 8, Clause 4 of the Constitution grants Congress the power “… To establish an uniform Rule of Naturalization”, (US Const , 1787, pp. Art I, Sec 8, Clause 4) but immigration is not mentioned. Early Congress, being reluctant to tread outside the Constitutional boundaries, did not impose immigration limits. The early Republic therefore had naturalization law as early as 1790, but there was no federal immigration law until 1875. The borders were wide open, at the federal level.
From there, the following changes were made:
1868 — The 14th Amendment to the Constitution allowed Black people to become citizens the same way White people were (and still are): by being born here. Language was added to the naturalization law that expanded citizenship from “free white people” to include “aliens of African nativity and to persons of African descent”.
1875 — The first federal immigration law. Prior to this time, the only immigration restriction laws were state laws, mostly aimed at keeping out or deporting Irish Catholics (Irish Protestants were apparently bad enough, but they drew the line at Irish Catholics) because it was believed that they were a burden on local poorhouses (the 19th century equivalent of welfare) (Hidetaka Hirota, Expelling the Poor). The Page Act kept Chinese women from immigrating to the United States on the basis that Chinese women were immoral, but in reality it was passed because people on the West Coast did not want Chinese people to flourish there. The history of this act is fascinating because it revolves around discomfort with sexuality, Asians, and the commonly held belief that Congress had no authority to restrict immigration because the Constitution does not grant it. (Abrams, Kerry, “Polygamy, Prostitution, and the Federalization of Immigration Law”) Modern conservatives who favor viewing the Constitution as a limit on government seem to have no such qualms about anti-immigration laws.
1882 — The Chinese Exclusion Act finished what the Page Act started, barring Chinese men from immigrating. It was authorized for 10 years as an experiment, extended for another 10 with the Geary Act, and then made permanent in 1902. Other laws addressed perceived loopholes. It wasn’t repealed until 1943 with the Magnuson Act. Try to imagine what was going on in 1943 that would cause Congress to suddenly repeal a ~70 year old policy. Also, Congressed passed an act that charged a little bit of money to immigrants to pay for immigration officials.
1885 — The Alien Contract Labor Law made it illegal to import labor. Guess who was doing this and why.
1891 — The Immigration Act of 1891 was the first comprehensive immigration law. It set up a bureaucracy to enforce the laws and deport people. It led to the creation of Ellis Island, where European immigrants were swiftly moved into the country, and its West Coast partner, Angel Island, where Chinese immigrants were swiftly rejected. (Roger Daniels, Guarding the Golden Door) Many people mistakenly believe that their ancestors had to prove their ability to earn a living through some demonstration of craftsmanship while moving through the Ellis Island line. They may be surprised to find that people who came over in First Class got to skip the Ellis Island line and head straight to shore. Of the remainder, something like 65% declared their profession to be “common laborer”. (Statistical Abstract of the United States)
1903 — Anarchist Exclusion Act — at last the borders were not wide open to Europeans. The rejection rate at Ellis Island ran at <1% during this period.
1906 — Naturalization Act, makes some changes and requires some English knowledge
1907 — Immigration Act, bans some people with certain kinds of diseases and disabilities.
1917 — Immigration Act, requires you to have a male relation who can read simple sentences in your native language (Daniels and also see Commons, Races and Immigrants in America, 1907, p234), extends Chinese Exclusion to more Asians. Even after this, the rejection at Ellis Island never exceeded 3% and usually ran at around 1.5%.
1921 — Emergency Quota Act, sets some quotas for Europeans
1924 — The Johnson-Reed Act finally enacts the eugenicists’ wet dream, drastically limiting immigration to “nordic” people by forcing immigrants to queue up at the embassies in their home countries and adhere to strict quotas. Those quotas were based on the share of the population coming from any country based on the 1890 census. This virtually eliminated people from South Europe (Italy) and East Europe (Russians, Poles, Hungarians, and above all, Jews from Russia, Poland, and Hungary). Ellis Island was closed.
As a result of the 1924 Act (which has since been overturned by a number of Acts, especially the comprehensive 1965 Act), it is common American lore that everyone who is currently a citizen had an ancestor that immigrated “legally”. It appears that everyone had an ancestor who “came in the right way” or “waited in line”.
Typical of this genre is the Thomas Sowell quote: “The endlessly repeated argument that most Americans are the descendants of immigrants ignores the fact that most Americans are NOT the descendants of ILLEGAL immigrants.” (Sowell, 2015) This frequently leaves out the rest of Sowell’s statement: “Millions of immigrants from Europe had to stop at Ellis island, and had to meet medical and other criteria before being allowed to go any further.” Depending on when they came, his complete statement may be misleading. Let’s take a look.
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As we saw above, there were few restrictions on immigration prior to 1924. Between 1924 and 1965, despite perceptions like those expressed above by Dr. Sowell, there were many ways to enter the country legally or quasi-legally.
The Americas loophole
Before and after the 1924 Act, there were few to no limits to immigration from Canada, Mexico, or the Americas unless you were Asian. Thus, you could circumvent limits by going through Canada & Mexico or even Cuba. Prior to the Act, the authorities themselves described how futile it would be to try to get immigrants to settle somewhere besides the Northeast as follows (Commons, p227)
The commissioner of immigration at Ellis Island, speaking of the cordon established by his bureau along the Canadian frontier from Halifax to Winnipeg in order to catch those who tried to escape inspection at New York, said, “All those immigrants who had New York, Philadelphia, Chicago, Cleveland, or Cincinnati in mind as a destination when they left Europe and came to Quebec, went all the way around that wall to its western end at Winnipeg, and then took trains and came back to the very places they had in mind when they left Europe; and if you were to land all the ships that now come to New York at Galveston, New Orleans, or Charleston, every one of the immigrants would come to the place he had in mind when he decided to emigrate.”
Ngai says, “[I]llegal European immigrants entered the United States across both [land] borders. Belgian, Dutch, Swiss, Russian, Bulgarian, Italian, and Polish immigrants enlisted in agricultural labor programs in the Canadian west, only to arrive in Canada and immediately attempt entry into the United States, at points from Ontario to Manitoba. An investigation by the Federal Bureau of Investigation in 1925 reported that ‘thousands’ of immigrants, ‘mostly late arrivals from Europe,’ were ‘coming [into Canada] as fast as they can get the money to pay the smugglers.’ The most heavily traveled route for illegal European immigration was through Mexico. The commissioner general of immigration noted, ‘Long established routes from southern Europe to Mexican ports and overland to the Texas border, formerly patronized almost exclusively by diseased and criminal aliens, are now resorted to by large number of Europeans who cannot gain legal admission because of passport difficulties, illiteracy, or the quota law.’” [Ngai, Impossible Subjects, p.66]
After the Act passed, it was still big business to bring people in through the Americas.(Benshoff, 2018)
Articles in The New York Times in the early 1920s described people from Czechoslovakia and Poland hiring smugglers to ferry them by boat from Cuba into the country or to get them across the U.S. border with Canada.
It helped to have family connections (Donohue, 2019):
’[Stanford History Professor Richard White’s Irish grandfather] tried to come through Detroit. It was hard to get caught at Detroit, but he managed to get caught,’ White said. Back in Canada, his grandfather called his brother, a Chicago police officer, who crossed the border and met him there. The two then walked to Detroit, his brother flashing his Chicago policeman’s badge to U.S. customs officers who waved the pair through.
Ngai finally notes (pp66–67) that “By the late 1920s surreptitious entry into the United States by Europeans declined. The threat of apprehension and deportation was a deterrent but alternate legal methods also existed for circumventing the quota laws. Europeans could go to Canada and be admitted to [the] United States legally after they had resided in Canada for five years. The evidence suggests that this was a popular strategy: the proportion of lawful admissions from Canada of persons not born in Canada increased from 20 percent in 1925 to over 50 percent in the early 1930s. And, as European immigrants in the United States became naturalized citizens, they could bring relatives over legally as nonquota immigrants. In 1927 over 60 percent of the nonquota immigrants admitted to the United States were from Italy; with the next largest groups coming from Poland, Czechoslovakia, and Greece.” I’ll have more to say about this curious lack of concern about European “chain migration” and “anchor babies” and the differential treatment of Mexicans sometime in the future.
Pre-examination
The immigration service noted that some deportation cases created moral dilemmas for courts and enforcement personnel, such as when the parent of a born citizen had to be deported on a technicality, causing undue suffering to a family of citizens. One such technicality might be that they happened to be out of the country temporarily when the 1917 Act was passed. The number of people affected were not insignificant: In 1925, “the immigration service reported that 1.4 million immigrants might be living illegally in the U.S.” (Donohue, 2019) At the time, the population of the US was about 115 million, so this was more than 1% of the population.
To address these, they sought changes to the law, but also “the secretary granted waivers by invoking an obscure clause of the Immigration Act of 1917, the Seventh Proviso to section 3, which stipulated that ‘aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the Discretion of the Attorney General.’ … By invoking the Seventh Proviso to waive deportations, Perkins reverted to the central principle of pre-1924 immigration policy inherent in the statute of limitations on deportation, the idea that immigrants who have settled in the country should not be expelled. The process of readjustment of status was known as the ‘pre-examination’ procedure.” (Ngai, p84) Donohue notes that we would call this “amnesty” today.
The procedure consisted of receiving a pre-examination certification, going into Canada, going to a US consulate there, receiving a visa for permanent residence, and then returning to the United States. (Ngai, 2004, p. 84) “The data indicate that between 1935 and 1959 the INS processed nearly 58,000 pre-examination cases and granted approval in the vast majority of them.” (Ngai, 2004, p. 87) The procedure found widespread use for European immigrants, but was denied to Asians because Chinese were ineligible for citizenship, and denied to Mexicans because the consul in Juarez, William Blocker, determined that the applicants were of “the laboring class” and should not be eligible. (Ngai, 2004, p. 86)
WWII and the Cold War
In addition to pre-examination, the INS implemented a wartime measure of suspending deportation orders under the Alien Registration Act. Applied from 1941 through the late 1950s, several thousands of deportations were suspended every year. These included seamen, tourist visa overstays, and border crossers, but were mostly limited to Europeans (73%), not Mexicans (8%). (Ngai, 2004, pp. 87–88)
I have previously discussed ‘white’ and who was considered to be white. The selection of Europeans for various exemptions to the 1924 Act were crucial to the question of whiteness. Ngai (Ngai, p89) concludes her presentation of the era with this:
Thus it became possible to unmake the illegality of Italian, Polish, and other European illegal immigrants through the power of administrative discretion. … [A] rough estimation suggests that between 1925 and 1965 some 200,000 illegal European immigrants who were construed as deserving successfully legalized their status under the Registry Act, … and contributed to a broader reformation of racial identity taking place, a process that reconstructed the “lower races of Europe” into white ethnic Americans.
Amnesty & Parole
As the Cold War developed, immigration policy became a handmaid to diplomacy. After a failed revolt in Hungary in 1956, the Eisenhower administration paroled nearly 35,000 “freedom fighters”, far above the annual Hungarian quota of 865. Congress soon thereafter passed legislation that not only allowed the Hungarians to attain citizenship, but also additional legislation that allowed the executive branch to parole and offer resident alien status to immigrants as it saw fit. (Daniels, 2005, p. 127) Other presidents would use this, including the Carter and Reagan administrations when they paroled over 120,000 Cuban immigrants in the Mariel boatlift, and numerous others fleeing Indochina.
The Irish
Daniels (p141) describes the undocumented Irish immigrant situation:
The INS data show that 43,000 nonimmigrant Irish entered in 1978, 34,000 of them on tourist visas. In 1987, with unemployment in Ireland at 19 percent, 105,000 Irish non-immigrants entered the United States legally, 81,000 of them as tourists. In contrast, 3,060 Irish entered as immigrants in that year. By the mid-1980s, the presence of large numbers of illegal Irish — estimates ran from 40,000 to 250,000 — was an open secret, largely ignored by the mainstream press but a regular feature of such ethnic papers as the Irish Echo and the Irish Voice. Eventually, the Irish Immigration Reform Movement, a pressure group for legalization, was created and by the laters 1980s its green-and-white stickers — “Legalize the Irish” — could be seen in shop windows in ethnic neighborhoods, in ethnic bars, and as an extra adornment on rapid transit ads from Boston to Washington. Despite all this publicity, the INS, notorious for its policies of selective enforcement, which “located” more than 1.5 million deportable aliens in 1997, could find only forty-six Irish! It could have found more than that in a Saturday night surveillance of one of the more popular Irish bars in New York or Boston, or at an Irish or Irish American soccer game.
Cuba
Immigration from Castro’s Cuba has always been a special case. One of the earliest extralegal projects was dubbed Operation Pedro Pan. Parents sent their children to stay with “relatives” in the US. The parents were arranged by Catholic Welfare Services. Ostensibly a discovered problem — “omygosh, how did all of these children get here? We should do something!” — it was in reality a clandestine operation. [Daniels]
Over the years, policy developed with regard to Cubans (although not to Haitians) to allow them into the country and parole them. At times, this backfired politically, as when Castro dumped people from prisons and mental hospitals into the Mariel Boatlift along with all of the economic refugees, tainting them all as “undesirables”. [Daniels] In 1995, the “open border” Clinton Administration agreed to a change in policy in which people caught at sea would be returned “for safety reasons” while people who made it to shore would be allowed to stay. This was called the “wet foot / dry foot” policy. Some Cubans chose to go to Yucatan and then through the Southern border; they were also allowed to stay (the “dusty foot” policy). The “open border” Obama Administration finally put a stop to this policy in 2017, deporting everyone who came in from Cuba without a visa.
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As you can see, the Thomas aphorism is simply meaningless: most Americans whose ancestors arrived many generations ago are descended from people who immigrated when there was no such thing as “illegal immigration”. Whether or not they followed a legal naturalization process largely didn’t matter, and their children all automatically became citizens as a result of “birthright citizenship”. Americans whose ancestors arrived from Europe between 1891 and 1924 may have come from or through Mexico or Canada when legal immigration was as simple as bypassing Ellis Island and walking across the northern or southern border, or between 1924 and 1965 when Ellis Island was closed but the “Americas loophole” still existed. Still other Americans may have been “pre-examined”, “dried out”, “paroled” for Cold War reasons — all different words for the same outcome. Sowell’s common appeal to fairness is like making a claim that my great-grandfather never received a speeding ticket or an OSHA violation — while true, it is trivially true since “speeding” and “OSHA” did not exist in his lifetime. Unfortunately, making these kinds of statements without regard to the full historical context is typical of many conservative pundits.
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Adapted from Cameron (Cameron, 2018) (NB: I originally had a link to an old website in the Wayback Machine, but when I went looking again, I found that Cameron has a Medium page for this, so that’s even better.)
If your family came before … This was the “right way”:
1776 … They weren’t “immigrants”, they were “colonists”
1790 … Same, unless they weren’t white. “Citizen” wasn’t even defined before 1790, at which time only white immigrants could naturalize.
1870 … (Amendment to the 1790 Naturalization Act) Be black or white, but still not Asian
1875 … No federal immigration regulation before this date, only inconsistent state laws
1882 … They weren’t East Asian
1906 … Hard to say: no federal records kept before then; you could naturalize in front of a judge in 1–2 hours (if not Asian)
1917 … Be almost anyone (except Asians). Background checks without any means to check on e.g. criminal records or subversive activities were introduced. Also, be able to read something in your own language or have a male relative who could.
1924 … National quotas started, Ellis Island closed, visa application in home country required (does not apply to people from the Americas — no restrictions on them)
1929 … Visa quotas tightened and first “amnesty”
1965 … Open borders to the Americas first closed off, the “take a number and wait in line” visa system replaced with a pro-family system
1997 … System more heavily restricted
