Maryland Bar Bulletin
Publications : Bar Bulletin : August 2013


To admit the Chinese to citizenship “would be to begin the wreck of the Republic.”
- Exclusionists during congressional debates, Cong. Rec., 47th Cong. 1st Sess. 1486 (1882).

While the House of Representatives considers its own piecemeal immigration reform, it is crucial to understand that major immigration reform of the type that the country is considering today comes in reaction to the larger social and political climate. The United States has battled its dual history as a country built by immigrants and tarnished by its hostility towards new waves of immigration.

The most significant laws which have affected immigration over the past century and a half have reflected the then prevailing views of the country. The first was the Chinese Exclusion Act of 1881, which Congress passed in reaction to efforts by Californians and other westerners who wanted to ensure that Chinese citizens who had played a huge role in the development of the western economy would not control its social, religious, or cultural fabric. That law, followed by similar, but weaker, policies targeted against Japanese citizens, was in place until the end of World War II.   

In 1924, Congress, sitting at the height of segregation, passed an immigration law, known as the quota law, which limited immigration based on national origin. It limited immigration to the U.S. to two percent of a nation’s citizens in the US as per the 1890 census. Despite subsequent censuses, the law used the 1890 census because it did not account for significant migration from Eastern and Southern Europe which took place in the interim. The law also formally stopped all immigration from “Asiatic” countries. In that era, both political parties were heavily influenced by both racists and isolationists following World War I. The U.S. was also heavily consumed by questions of citizenship, which was demonstrated by numerous judicial determinations of whether foreign nationals were “free white persons” eligible for citizenship under the 1790 immigration. Courts throughout the nation, including the U.S. Supreme Court, used the available scholarship of the era to conclude, for example, that Indians and Japanese were not white persons, while Armenians were.   

By the 1950s, the U.S. realized that its immigration policy, like racial segregation, heavily stained its image as the “leader of the free world” and therefore, at the height of the Cold War, Congress passed the McCarren-Walter Act of 1952. The Act eliminated the racial bar to citizenship, but maintained the quotas designated in the 1924 law while also restricting the immigration of post-colonial British subjects who had previously been under the generous British quota. Crafted in the heat of political repression against dissidents in the U.S., the law created broad grounds of removability and attempted as best it could to bar those with political ideologies opposed to the U.S. from immigrating to the U.S. It complemented the 1950 Internal Security Act which called for the removal of any individual who had at any time been a member of the Communist Party no matter the length, involvement, or knowledge of the party’s goals or platform. As the Communist Party of previous decades had been a leader in the fight against racism in the U.S., and an advocate for labor rights, it was not uncommon for immigrants to join its efforts.   

Lost in the monumental period of the Voting Rights Act and Civil Rights Acts of 1964 and 1965 came the 1965 immigration act authored by freshman Senator Edward Kennedy. This law eliminated the quota system and instead created a numerically equal system in which all countries would be allowed the same number of immigrants.  

While the overt racism of the immigration laws of the past has been eliminated on the books, the policies of the past twenty years have served to target immigrants for the actions of others and to perpetuate the U.S.’s view of immigrants.  In response to a variety of terrorist acts, including the bombing of the World Trade Center in 1993, the 1995 Federal Building bombing in Oklahoma City, the mass burning of African American churches in the south, and the 1996 bombing of the Olympic games in Atlanta, Congress passed both the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).   

While these Acts were designed to provide safety and security to the U.S. following the insecurity and danger that the country felt after these distinct and powerful attacks, in reality the vast majority of those punished under these laws are immigrants who had no involvement with these attacks. IIRIRA was quite comprehensive in that it covered many areas and greatly expanded grounds of removability, radically limited waivers of inadmissibility, set a time bar on when an individual could seek asylum, and prevented anyone who entered the U.S. in an unauthorized fashion from applying for permanent residency even if they married a U.S. citizen. Furthermore, it set a ten year bar on returning to the U.S. for anyone in the U.S. out of status for over one year. Thus, it created an ever increasing class of undocumented people.

The aftermath of the attacks of September 11, 2001 led to the creation of the Department of Homeland Security and an immediate public backlash against immigrant communities while the U.S. government specifically targeted men from a variety of Muslim-majority countries. Men from these countries above the age of sixteen were forced to register with the U.S. government or face removal from the U.S. While this program was eliminated by the Obama administration, its scars remain today.

Despite campaigning on immigration reform, the Obama administration unleashed immigration enforcement both through record numbers of arrests and removals from the U.S. soon after taking office; it also expanded the use of INA section 287(g) in which Immigration and Customs Enforcement deputizes local police departments to enforce immigration law, a policy since abandoned due to public outrage over the conduct of many local police departments, most notably that of Maricopa County, Arizona. More recently, the administration has alleviated the effects of  harsh laws and policies by providing temporary legal status to certain undocumented youth and exercising discretion in removal proceedings.

Mark J. Shmueli practices in all areas of immigration law and is based in Takoma Park, Maryland.

previous next
Publications : Bar Bulletin : August 2013

back to top