Impossible Subjects: Illegal Aliens and the Making of Modern America

Wishing to favor northern European immigrants without appearing to do so, restrictionists proposed a system of quotas based on national origin. In 1924, Congress passed the Johnson-Reed Act, which restricted immigration to 155,000 per year, established temporary quotas based on 2% of the foreign-born population in 1890, and mandated Secretaries of Labor, State and Commerce to determine a quota system based on national origin no later than 1927. Additionally, the law excluded from immigration virtually all persons, such as the Japanese and Chinese, who were ineligible for citizenship. No numerical restrictions were placed on immigrants from the Western Hemisphere because of the need for labor. Influenced by eugenics, restrictionists rejected the idea of a “melting pot.” They differentiated Europeans according to nationality, ranking them on a “hierarchy of desirability” (24) and constructing a white American race.

Dr. Joseph Hill, who chaired the Quota Board, faced the daunting task of designing a system that allocated numbers to countries in the same proportion that Americans traced their origins. Problematically, there were incomplete records, with immigration not recorded before 1820 and not classified by national origin until 1899. The law completely excluded immigrants from the Western Hemisphere and their descendants, aliens ineligible for citizenship and their descendants, the descendants of slaves, and indigenous peoples. In short, it assumed that the American nation was and would continue to be white.

Moreover, the project assumed that “national identities were immutable and transhistorical, passed down through generations without change” (33). Populations were said to increase at the same rates, ensuring that the oldest immigrants or native stock who arrived before 1790 had the largest numbers. Although there was some controversy over the final report, which went through three iterations, Congress and the President accepted the Quota Board’s calculations in 1929 and it befell to civil servants to implement them.

While the system of quotas was the first major pillar of the 1924 act, the second pillar excluded persons ineligible for citizenship. In 1790, the Nationality Act granted the right to naturalization to free white persons of good moral character (37). Between 1887 and 1923, the federal courts heard 25 cases of immigrants contesting their racial status to qualify for citizenship. The cases of Takao Ozawa v. US (1922) and US v. Bhagat Singh Thind (1923) established that Japanese persons and Asian Indians were unassimilable aliens and helped to create the racial category of Asian. Some were able to win naturalization because of a law granting citizenship to those who fought in World War I. In seven cases, the courts found that Syrians, Armenians, and Asian Indians qualified as white, suggesting that there was more to “whiteness” than the color of skin.

There was not a successful challenge to the racial prerequisites, however. The Courts generally excluded non-whites from citizenship and upheld state laws prohibiting the sale of land to aliens. There was public support in the Pacific West for such exclusion, with race riots targeting Asian immigrants on more than one occasion. The California Joint Immigration Committee (CJIC) was an effective nativist pressure group pushing for such exclusion. In response to the Immigration Act of 1924, Japan imposed a 100% tariff on goods imported from the US in a sign of its anger.

In the first two decades of the 20th century, two groups migrated west: laborers from the interior of Mexico and white farmers and businesspersons from the south and Midwest. Displacing a Mexican American middle class, a new class division overlaid race, with white property owners and Mexican agricultural workers. Although anti-Mexican sentiment grew, the courts upheld the Mexicans’ right to naturalize. However, there was soon strict enforcement of visas and the flow of legal immigrants from Mexico was substantially reduced. Mexicans continued to enter the country illegally and, ironically, were considered an illegal presence in lands that formerly belonged to Mexico.

In 1891, for the first time, Congress authorized the deportation of aliens who had become public charges within one year of arrival. The Immigration Act of 1917 extended the deportation period to five years and added more categories of exclusion and harsher penalties. However, relatively few people were deported before the 1920s. The 1924 Immigration Act eliminated the statute of limitations entirely for almost all forms of illegal entry and called for the deportation of all those entering the country illegally after July 1, 1924. Additionally, the act created the Land Border Patrol, which ensured enforcement. Since unauthorized entry was criminalized, those apprehended and deported could not ever re-enter the US. The legal construction of undocumented immigrants as criminals intensified nativist furor. Problematically, though, the demands of restrictionists for mass deportations were impractical, as immigrants were not abstractions but people, like other Americans, enmeshed in communities.

Before World War I, both the Mexican and Canadian borders were soft. The Immigration Act of 1917 imposed a literacy test and doubled the tax on Mexican immigrants, creating the first barriers to entry. It was the 1924 law, though, that brought the land borders into “sharp relief” (66), as they were points of illegal entry for Europeans who were now numerically restricted. In the 1920s, despite a lack of numerical restrictions, the number of Mexicans deported “skyrocketed” (67) for reasons such as not having a proper visa. Mexicans were subjected to humiliating inspections of their bodies and bathed. The Border Patrol, which included several men associated with the Ku Klux Klan, lacked professionalism and treated the Mexicans harshly. Ngai comments that the border became a “cultural and racial boundary” and “creator of illegal immigration” (67) as a result of policy. There were legal avenues of entry for Mexicans for economic purposes, yet the new law led officials to suspect all Mexican immigrants of criminality.

In the 1930s, there was increasing racial animosity toward Mexicans. In that decade, almost 20% of the Mexican population in the US returned to Mexico via voluntary departures, forced deportations, and organized repatriation programs encouraged by the Immigration Service. Since many had been on public support during the Great Depression, they were ineligible to return to the US. The program, which sent American children to Mexico, was nothing short of a “racial expulsion program” (75). The complete removal of Mexicans from the US was not possible, however, given their large numbers and the need for their labor.

In the late 1920s and early 1930s, the number of deportations of European immigrants increased as well. However, their ejections elicited protests. Critics concluded that the deportation policy was applied in “arbitrary and unnecessarily harsh ways” (77), separating families in many cases while procedurally being in violation of established jurisprudence. To address these concerns, it was politically easier to focus on the administration of the law instead of changing the law. By the early 1930s, these complaints had benefitted Europeans and Canadians.

In 1933 and 1934, liberals pursued a dual legislative strategy which would impose harsher penalties on criminals and prevent family separation in meritorious cases. The former would give political cover for the latter. However, it did not specify how the criminals and deserving would be identified. It turned out that European immigrants with minor criminal records could be deserving, while Mexicans without documentation would be deported. Many European immigrants were able to take advantage of a 1929 law, the Registration Act, that awarded permanent residency to anyone in the country since 1921 of good moral character. Mexicans could rely on this law, but they did not know about it or could not afford the fee. 80% of those awarded residency were European.

In the 1930s and 1940s, at the behest of Secretary of Labor, Frances Perkins, and Immigration and Naturalization Service (INS) head Daniel MacCormack, important administrative reforms were instituted. The INS discontinued the process of arresting suspected aliens without warrants away from the place of entry in an effort to improve due process. The Border Patrol had previously operated 100 miles away from the border and thereby introduced the problem of illegal aliens into the interior of the nation. There was a campaign to raise the professionalism of the INS as well.

Importantly, an obscure provision of the 1917 Immigration Law was invoked to give relief to aliens for whom deportation would cause hardship (84). Beginning in 1935, illegal immigrants could seek pre-examination for a temporary departure from the country, obtain a visa from the American consul in Canada, and return to the US as a legal alien (85). This privilege was not extended to Asians, who were racially excluded. While Mexicans were theoretically not excluded, the practice was not done at the Mexican border. The policy was therefore racist. It continued until 1958, allowing nearly 58,000 people—mainly Europeans—to switch from illegal to legal status in the US.

After 1940, when the INS was moved from the Labor to Justice Department, the Attorney General had the power under the Alien Registration Act to suspend orders of deportation. Several thousand such orders a year were suspended, with 73% being for Europeans. Finally, a favorable judicial ruling stipulating that the prosecutor or investigating inspector could not be the judge or hearing officer in deportation hearings caused Mexican deportations to drop from 16,903 in 1949 to 3,319 in 1950.

With the passage of the 1924 Immigration Law, the emphasis shifted to control of land borders. Americans reacted to the inconsistency of the new policy with democracy and justice, which led to reforms. However, race directed the reach of those reforms (89). It became possible to change the status of illegal European immigrants to legal, but crossing the Mexican border “emerged as the quintessential act of illegal immigration” (89).