Immigration Laws and Enforcement
As the U.S. federal government undertook to restrict immigration systematically in the 1880s, it needed to work out not only what persons to target for limited entry, but also the rationales for making these kinds of distinctions, how to characterize excluded categories of persons in law, and how to implement effectively laws that admitted some categories of persons, but not others, with varying rights of access to citizenship, employment, social services, civil rights, and legal residence. Immigration policies are closely aligned to protection of national interests by marking the boundaries around citizens and citizenship, leading the courts to confer expansive powers on the legislative branch to enact restrictions which intrinsically discriminate against targeted classes of persons and to the executive branch to enforce these laws under the principle of sovereign and plenary powers.
Starting with the 1790 Nationality Act, which reserved the right to citizenship by naturalization to “free white persons,” or white, male, property owners, for most of U.S. history, immigration laws have excluded persons primarily based on race, national origins, and socioeconomic class. The Supreme Court clarified that immigration restriction is a matter of federal, rather than state, authority in 1855 and 1875 rulings. The earliest targets for systematic federal immigration restriction were Chinese (1882), identified by race as inferior and unassimilable. It was to effectively enforce anti-Chinese laws that the courts allocated tremendous authority to the executive branch in ways that systematically limited the civil protections and rights of “excludable aliens,”* who became liable for extended detentions, deportation, and limited access to due process. The ranks of excluded categories of persons grew to include other races and nationalities, those without close family connections, persons without specified kinds of employment skills, and those exceeding annual, quantitative limits designated by Congress.
Agencies responsible for processing legal immigrants while policing excluded aliens have steadily expanded since the founding of the Immigration Bureau (1891) and the Border Patrol (1924). Since the 1920s, consular offices abroad handle the processing of visa and passport applications. After World War II, international law and standards requires provision for refugees and asylum seekers fleeing danger and persecution. After 9-11, the enforcement aspects of immigration administration gained priority and these agencies were consolidated into the Department of Homeland Security which aimed to better enforce immigration laws and protect against terrorist threats.
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.
Have students read section 4 of the Chinese Exclusion Act (1882).
Ask students: What requirements does this section lay out for Chinese planning to enter the United States? Who is responsible for enforcing these requirements? What are the penalties for ignoring these requirements?
Historical Context: The Supreme Court clarified that immigration restriction is a matter of federal, rather than state, authority in 1855 and 1875 rulings. The earliest targets for serious immigration restriction were Chinese (1882), identified by race as inferior and inassimilable. It was to effectively enforce anti-Chinese laws that the courts allocated tremendous authority to the executive branch in ways that systematically stripped away civil protections and rights from “excludable aliens,” who became liable for extended detentions, deportation, and limited access to due process.
Relevance: Show the proposed budget for Homeland Security for 2002 and 2018 and ask students to figure out what “homeland security” is supposed to do. (i.e. what is the U.S. being secured against?)
-Guide students to the understanding that (1) increasing funds are being allocated to homeland security and (2) border patrols and immigration processing are a part of Homeland Security.
-Why might the U.S. government include immigration within homeland security?
Body: Who Else is Involved?
-What does the pdf chart above reveal about the priorities of immigration policies? About expectations for those who immigrate?
-Based on the descriptions of department responsibilities (listed in the website above), what kinds of people would be involved in the U.S. immigration process? (i.e. who holds some power in this process?) (e.g. economists, teachers, inspectors of places, inspectors of paper work, etc.)
-What kind of power does each group seem to hold?
Students will create a visual (infographic, flowchart, political cartoon, etc.) that expresses their understanding of the immigration process. Example:
This was the first law to define eligibility for citizenship by naturalization and establish standards and procedures by which immigrants became US citizens. In this early version, Congress limited this important right to “free white persons.”
Congress enacted deportation laws targeting persons deemed political threats to the United States in response to conflicts in Europe.
In the settlement of the Mexican-American War, this treaty formalized the United States' annexation of a major portion of northern Mexico, El Norte, and conferred citizenship on Mexicans choosing to remain in the territory.
The Supreme Court designates the authority to legislate and to enforce immigration restrictions a matter of federal authority rather than a state or local power.
This California Supreme Court case ruled that the testimony of a Chinese man who witnessed a murder by a white man was inadmissible, denying Chinese alongside Native and African Americans the status to testify in courts against whites.
Negotiated during construction of the Transcontinental Railroad which relied heavily on Chinese labor, this international agreement secured US access to Chinese workers by guaranteeing rights of free migration to both Chinese and Americans.
Ratified in 1868 to secure equal treatment for African Americans after the Civil War, the Fourteenth Amendment guaranteed birthright citizenship for all persons born in the United States. It also provided for equal protections and due process for all legal residents.
This law prohibited the recruitment to the United States of unfree laborers and women for “immoral purposes” but was enforced primarily against Chinese.
This Supreme Court decision affirmed that the federal government holds sole authority to regulate immigration.
This law was a major shift in U.S. immigration policy toward growing restrictiveness. The law targeted Chinese immigrants for restriction-- the first such group identified by race and class for severely limited legal entry and ineligibility for citizenship.
Legislated a few months after the Chinese Exclusion Law, this immigration legislation expanded the ranks of excludable aliens to include other undesirable persons and attributes such as "convicts," "lunatics," and "those likely to become a public charge."
Congress extended domestic authority over immigration to improve enforcement of the Chinese exclusion laws. It abolished one of the exempt statuses, returning laborers, stranding about 20,000 Chinese holding Certificates of Return outside the United States.
This Supreme Court decision affirmed the plenary powers of U.S. federal authorities over immigration matters, in this instance even when changes in U.S. immigration law reversed earlier policy and practice.
Congress quickly came to realize the challenges of enforcing immigration exclusions, leading it to authorize and fund a dedicated immigration bureau responsible both for processing legal immigrants and enforcing immigration restrictions.
Congress renewed the Chinese exclusion laws and expanded enforcement mechanisms by requiring that Chinese prove their lawful presence in the United States by carrying a Certificate of Residence, a precursor of the green card system, or be liable for detention and deportation.
This Supreme Court decision ruled as constitutional the 1892 Geary Act's requirement that Chinese residents, and only Chinese residents, carry Certificates of Residence to prove their legal entry to the United States, or be subject to detention and deportation.
Increasing immigration, mainly from southern and eastern European countries, along with a series of economic downturns fueled nativist fears and the founding of the Immigration Restriction League by three influential Harvard graduates.
This Supreme Court decision that detention by immigration authorities does not constitute a criminal punishment, affirming the lesser rights of excludable aliens.
This Supreme Court case validated racial segregation by ruling that the equal protections principles mandated by the Fourteenth Amendment could be honored with facilities that were "separate but equal."
This Supreme Court case established the precedent that any person born in the United States is a citizen by birth regardless of race or parents' status.
This law identified anarchists as targets for exclusion and made provision for their removal if detained after entry.
Congress extended the Chinese exclusion laws in perpetuity in response to the Chinese government's efforts to leverage better conditions for Chinese travelers to the United States by abrogating earlier treaties. Chinese communities organized an anti-American boycott in protest.
Rather than enacting racially discriminatory and offensive immigration laws, President Theodore Roosevelt sought to avoid offending the rising world power of Japan through this negotiated agreement by which the Japanese government limited the immigration of its own citizens.
Congress funded this high-level commission to research the causes and impact of recent immigration to build support for significant restrictions on European immigration. The commission produced a 41-volume study in 1911.
Although this law is best known for its creation of a “barred zone” extending from the Middle East to Southeast Asia from which no persons were allowed to enter the United States, its main restriction consisted of a literacy test intended to reduce European immigration.
This act gave the executive branch greater powers to enforce immigration restrictions during World War I. It particularly targeted anarchists and other potential radicals.
The U.S. Department of Justice conducted a series of raids to round up, arrest, and deport suspected anarchists and left-wing radicals.
Fears of increased immigration after the end of World War I and the spread of radicalism propelled Congress to enact this "emergency" measure imposing drastic quantitative caps on immigration.
To further limit immigration, this law established extended "national origins" quotas, a highly restrictive and quantitatively discriminatory system. The quota system would remain the primary means of determining immigrants' admissibility to the United States until 1965.
Immigration within the American hemisphere remained uncapped until 1965; however, in 1924 Congress authorized funding for the Border Patrol to regulate crossings occurring between immigration stations.
During the economic and political crises of the 1920s and 1930s, the Border Patrol launched several campaigns to detain Mexicans, including some U.S.-born citizens, and expel them across the border.
Blease's Law criminalized crossing the border outside an official port of entry. Primarily designed to restrict Mexican immigration, the law made “unlawfully entering the country” a misdemeanor and returning after a deportation a felony.
During World War II, the U.S. government negotiated with the Mexican government to recruit Mexican workers, all men and without their families, to work on short-term contracts on farms and in other war industries. After the war, the program continued in agriculture until 1964.
President Franklin Delano Roosevelt signed this war-time executive order authorizing the rounding up and incarceration of Japanese Americans living within 100 miles of the west coast.
This Supreme Court decision upheld the federal government's right to set aside civil rights protections in the name of "military necessity" in ruling on Fred Korematsu's challenge to Executive Order 9066, which authorized removal and incarceration of Japanese Americans.
In December 1944, the Supreme Court authorized the end of Japanese American incarceration by ruling that "concededly loyal" U.S. citizens could not be held, regardless of the principle of "military necessity."
Congress enacted exceptions to the national origins quotas imposed by the Immigration Act of 1924 in order to help World War II soldiers and veterans bring back foreign spouses and fiances they had met while serving in the military.
This UN Refugee Convention set international standards for refugee rights and resettlement work. It is administered by the United Nations High Commission on Refugees. Wary of international obligations, President Truman refused to sign the U.S. government on to the convention.
Even as the bracero program continued to recruit temporary workers from Mexico, the Immigration Bureau led round ups of Mexican nationals. The Bureau claimed to have deported one million Mexicans.
The Immigration Bureau and the FBI used this program to try regularize the statuses of the many Chinese Americans who had entered the United States using some form of immigration fraud under the discriminatory Chinese exclusion laws.
This law set the main principles for immigration regulation still enforced today. It applied a system of preferences for family reunification (75 percent), employment (20 percent), and refugees (5 percent) and for the first time capped immigration from the within Americas.
After Fidel Castro's revolution, anti-communist Cubans received preferential immigration conditions because they came from a historically close U.S. neighbor and ally. This law provided them permanent status and resources to help adjustment to life in the U.S.
The UNHCR issued this protocol in 1967 to implement the goals of the 1951 Refugee Convention, which set forth the key principle of refoulement, or that persons in flight from persecution and danger cannot be forced to return to places of danger.
The United States made provisions to admit about 135,000 Vietnamese and other Southeast Asians in the months following the fall of Saigon, resettle them across the United States with resources to help them establish new lives.
The 1976 Amendments extended to the Western Hemisphere a per country ceiling of 20,000 and a modified preference system for arrivals. In 1978, the law was further amended to establish a single worldwide annual ceiling of 290,000.
While adhering to the UN standard for defining refugees, this law made U.S. refugee policy more responsive to changing situations through the implementation of annual admissions quotas that could be adjusted annually after consultation between Congress and the White House.
This Supreme Court case ruled that public school districts cannot constitutionally refuse admission to unauthorized immigrant children because the harmful effects to the public outweighed the cost savings.
The courts vacated the 1944 Supreme Court conviction of Fred Korematsu for violating curfew orders imposed on Japanese Americans after the attack on Pearl Harbor.
To address the problem of unauthorized immigration, Congress implemented through bipartisan agreement a multi-pronged system that provided amnesty for established residents, increased border enforcement, enhanced requirements of employers, and expanded guestworker visa programs.
Congress revised the Immigration Act of 1965 by implementing the H-1B visa program for skilled temporary workers, with some provisions for conversion to permanent status, and the diversity visa lottery for populations unable to enter through the preference system.
The regular denial of asylum applications from Salvadorans and Guatemalans fleeing violence in their homelands during the 1980s led to this legal challenge which forced changes to U.S. procedures for handling such cases.
Building on the steps taken with IRCA in 1986, IIRIRA further empowered federal authorities to enforce immigration restrictions by adding resources for border policing and for verification of employment credentials.
The Nicaraguan Adjustment and Central American Relief Act (NACARA) allowed certain Salvadorans, Guatemalans, and Nicaraguans who had fled violence and poverty in their homelands in the 1980s to file for asylum and remain in the United States.
The Flores settlement resulted from the 1993 Supreme Court case Reno v. Flores, regarding the treatment of unaccompanied minors in immigration detention. The settlement, currently being challenged, set federal standards for the treatment and release of children in detention.
Under the Haitian Refugee Immigration Fairness Act (HRIFA), enacted by Congress on Oct. 21, 1998, certain Haitian nationals who had been residing in the United States could become legal permanent residents.
This Supreme Court case ruled that immigration authorities cannot indefinitely detain aliens ordered deported, but for whom no destination can be arranged.
After the attacks of September 11th, the U.S. government acted to expand the budget, staffing, and powers of the immigration enforcement bureaucracy.
The Homeland Security Act created the Department of Homeland Security (DHS) by consolidating 22 diverse agencies and bureaus. The creation of DHS reflected mounting anxieties about immigration in the aftermath of the terrorist attacks of September 11th.
Passed in October 2006, this law mandated that the Secretary of Homeland Security act quickly to achieve operational control over U.S. international land and maritime borders including an expansion of existing walls, fences, and surveillance.
Trying to cope with the long-term residence of millions of unauthorized immigrants, this executive order provided protection from deportation and work authorization to persons who arrived as minor children and had lived in the United States since June 15, 2007.
This executive order issued by the Obama White House sought to defer deportation and some other protections for unauthorized immigrants whose children were either American citizens or lawful permanent residents.