Immigration Laws and Enforcement

Established with a new form of government–a democratic republic–the United States had to work out how a democracy sets its goals for immigration restriction, how these priorities are expressed in laws, and how such laws are enforced.  Often driven by historical contingencies, the federal government developed piecemeal policies and practices regulating important matters such as which and how immigrants could become citizens, what kinds of persons should be allowed to immigrate, and what kinds of powers different branches of government held to enforce immigration laws.  How the government decided to handle each situation as it arose–with Congress passing laws, the executive branch carrying them out, and the judiciary evaluating the constitutionality of laws and practices—depended on situations that varied over time.

The first challenge tackled by Congress concerned the crucial question of what immigrants could gain citizenship by naturalization and through what procedures and standards.  The 1790 Naturalization Act stated that only “free white persons,” like the founding fathers, could gain citizenship and established a process requiring two years of residency and a formal legal petition.  A few years later, however, Congress responded to a military conflict with France with the Alien and Sedition Acts (1798) to guard against immigration by political threats and to make it harder for new immigrants to gain citizenship and voting rights.

The next major decisions about how immigration should be regulated arose during the 1840s as the states of New York and Massachusetts enacted laws to prevent entries by poor Europeans.  Through the Passenger Cases (1849), federal courts interpreted the Constitution to rule that immigration restriction was a matter solely of federal jurisdiction–not state, county, or municipal governments.  Since then, as upheld in later judicial rulings, only national branches of government such as U.S. Congress, the White House, the Department of State, and federal immigration agencies have the authority to regulate immigration and enforce policies.

During the mid- and late nineteenth century, the U.S. government confronted a growing and increasingly diverse population produced by rising levels of immigration from more disparate points of origin and by territorial expansion.  Because immigration is related to international commerce in involving the circulation of persons to and from other countries, the federal government at first worked through diplomatic negotiations and treaty arrangements to regulate conditions for citizenship and immigration by new populations.  For example, the 1848 Treaty of Guadalupe Hidalgo secured U.S. sovereignty over the present day Southwest and provided citizenship for all formerly Mexican residents who chose to remain in the newly American territories.

Diplomacy also informed early efforts to restrict immigration.  The United States first turned to systematic immigration restriction by targeting Chinese in the 1870s.  The 1868 Burlingame Treaty proved a barrier,  however, because it had secured the rights of Chinese and Americans to freely travel back and forth with the goal of maintaining U.S. access to Chinese workers.  Only a few years after its signing, severe economic depression and concerted agitation by organized labor groups led the United States to change course and seek to sharply restrict immigration by Chinese laborers.  Enacting such laws required the renegotiation of the Burlingame Treaty.  In the 1880 Angell Treaty, the Chinese government agreed to U.S. rights “to regulate, limit, or suspend immigration of Chinese laborers to the United States.”  Swiftly after this new treaty was signed, Congress enacted the first of what came to be known as the Chinese Exclusion Laws (1882-1943).

For the following several decades, the United States federal government steadily defined and expanded its sovereign authority over immigration restriction and enforcement despite efforts by the Chinese government and Chinese Americans to protest their diminishing access, rights, and protections once they became legally categorized as excludable aliens and noncitizens.  A series of court rulings conferred virtually unlimited authority to the U.S. government over immigration and immigrants [See Chae Chan Ping 1889, Fong Yueting 1893, Wong Wing 1896, Ju Toy 1905] including powers to detain and deport unauthorized immigrants and noncitizens who could not claim the same levels of due process and judicial hearings in regular courts as did legal residents and citizens.  The immigration bureaucracy and a network of immigration courts hold primary authority over immigration matters.  Even though the U.S. and Japanese governments negotiated the terms of the 1907-08 Gentlemen’s Agreement when restricting Japanese migration to the United States, the steady trend moved toward the U.S. government asserting its domestic authority over immigration restrictions by the 1910s and institutionalizing the lesser protections and status of noncitizens and excludable aliens.

The nadir of this diminished status occurred during World War II and produced the incarceration of about 130,00 Japanese Americans, two-thirds of whom were U.S.-born citizens.  After the attack on Pearl Harbor, Japanese Americans were categorized racially as “enemy aliens.”  As suspects for potential espionage and treason, although no evidence was ever uncovered, Japanese Americans became subject to the principle of “military necessity” and placed under curfew orders before being rounded up and confined in incarceration camps 100 miles away from the Pacific coast.  Court challenges such as Korematsu v. U.S. upheld the principle of military necessity, which still stands to this day.  The case of ex parte Endo, which was not decided until December 1944, paved the way for the release of those Japanese American citizens whom the U.S. government found to be “concededly loyal.”  Japanese immigrants who could not legally naturalize, however, were still aliens and confined in the camps until the war’s end.

As the U.S. government undertook to effectively enforce immigration regulations, it quickly recognized the need for dedicated agencies and personnel.  The Immigration Bureau was established in 1891 and has expanded in fits and starts.  For example, although no numeric limits applied to migration within the American hemisphere until 1965, Congress funded the Border Patrol in 1924 to monitor and supervise crossings.  Because its operations affect so many critical areas, the Immigration Bureau has been housed in various departments including the Department of the Treasury as a matter of commerce; moved to the Department of Commerce and Labor in 1903; then to the Department of Labor in 1913; then to the Department of Justice in 1940 as a matter of national security.

In its first three decades of operation, the immigration bureau was chiefly concerned with admitting new arrivals at immigration stations in places like Ellis Island, Boston, New Orleans, and Angel Island if they were not excluded under U.S. immigration laws. Starting in the 1920s, however, immigration agencies and personnel became mostly concerned with enforcement of immigration regulations rather than services to immigrants because primary responsibility for evaluating and processing visa applications shifted to diplomatic offices overseas. This strategy for “remote control” was extremely effective in causing immigration to the United States to plummet by implementing annual numeric caps allocated by national origin and an outright ban on immigration from Asia.  This emphasis on quantitative limits produced the sharpest constriction of immigration to the United States for several decades, even though the severity of the laws damaged foreign relations and prevented aid to refugees in dire need.

The Cold War and establishing of global governmental organizations such as the United Nations raised the importance of international standards and regulations in U.S. immigration policy.  The governments of other countries had platforms to criticize the open discrimination in the U.S. national origins quota system.  After World War II, human rights and refugee relief became common principles.  The 1951 Refugee Convention, which is administered by the United Nations High Commission on Refugees (UNHCR), establishes baseline principles, the key principle is non-refoulement, which mandates that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.  Standards and procedures for enacting the convention were set in the 1967 Protocol Relating to the Status of Refugees, to which the United States is a signatory nation.

The 1965 Hart-Celler Immigration Act abolished the national origins quota system and opened immigration to all countries of the world based on a preference system that prioritized family reunification, skilled employment, and refugees.  Immigration to the United States diversified and increased dramatically, primarily through the employment and refugee provisions.  [Pathways to legal immigration since 1965] However, the 1965 law exacerbated problems of unauthorized immigration by imposing numeric limits for the first time on migration within the Americas.  These quantitative restrictions made illegal long-standing patterns of circular migrations between the United States and its nearest neighbors—particularly Canada and Mexico—magnifying the U.S.’s immigration quandaries.  Nonetheless, immigration laws remained incompletely enforced because of the difficulty of fully securing the U.S.’s extensive land borders to the north and south, its proximity by water to the Caribbean, the economic disparities and social instabilities that drive migrants to seek better opportunities and safety, and constant violations by U.S. employers of laws banning employment of unauthorized workers.

By the mid-1980s, millions of long-term residents, workers, and taxpayers had become unauthorized immigrants with no possibility of legal permanent status because they immigrated outside the numeric limits.  To resolve these problems, Congress passed the Immigration Reform and Control Act in 1986 to give amnesty to 2.7 million long-term unauthorized residents while intensifying enforcement of employment restrictions and border crossing resources.  The 1996 Illegal Immigration Reform and Immigrant Responsibility Act added further enforcement measures targeting employment and border control.  Immigration agencies held tremendous powers to round up, detain, and to deport excludable aliens, unauthorized immigrants, and noncitizens.  Despite these efforts, unauthorized migrations have continued even as the resources committed to enforcement have steadily increased.

The twenty-first century witnessed dramatic expansion of immigration enforcement institutions. 9-11 inflamed concerns about national security related to immigration and border control, leading to the establishing of the Department of Homeland Security (DHS) in 2002 to consolidate and expand security and policing operations, including the rounding up, detention, and deportation of unauthorized immigrants.  Presently, about 11 million unauthorized immigrants reside in the United States who largely do not pose security risks but cannot attain legal status because they have violated U.S. immigration laws.  Unless Congress enacts a legal resolution for their situation, they remain vulnerable to detention and deportation which are presently the main tools available to the DHS to enforce immigration laws.