Written by: Edric Huang
Edited by: Emily Chen, Jenny Dorsey
First Published: 11.19.2020
Last Updated: 9.27.2021
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Table of Contents
The origins of formalized racism and exclusion in U.S. immigration laws — and their lasting consequences on the Asian-American identity.
The simultaneous racialization and criminalization of the Mexican American identity and its implications for Latin American immigration for decades to come.
The limits of the Hart-Celler Act, too often heralded as a major victory.
The origins and political intentions behind the U.S.'s asylum policies
A look at the codification of racial profiling in today's immigration laws
Highlighting Trump-era policies that restricted both illegal and legal immigration pathways
A discussion on how & why Black immigration has been continually overlooked in U.S. policy
Ways to change our collective consciousness and advocate for systemic change
Relevant resources to read and learn more about U.S. immigration laws
The unequal road to naturalization and citizenship for BIPOC is as old as the United States itself. As early as the Naturalization Act of 1790, America has imagined the freed white man as its default citizen, explicitly denying BIPOC their ability to belong and be recognized.
Although enslaved Africans were brought over through forced immigration to work in the American colonies as early as 1619 — and later counted as ⅗ of a person in the newly formed United States to help Southern states gain electoral college votes — they were not not legally counted as American citizens until slavery was abolished and the 14th Amendment was written into law in 1868.
Similarly, after Indigenous people were forcibly resettled & acculturated, they were not given citizenship until the 1924 Indian Citizenship Act. In fact, in 1798 America legally offered legal standing to (white) Canadian and Nova Scotian refugees escaping the British colonies of Canada but gave no such option to the Indigenous peoples they intentionally displaced with these white bodies (Taparata 2019).
Anti-Black and anti-Indigenous capitalism laid the groundwork for much of America’s racist immigration policies, alongside U.S. military imperialism abroad and claims to “national sovereignty” despite being built on stolen land. Through the past few centuries, American laws have continued to reinforce the “white citizen” as the default and make it clear that immigrants and their descendants do not ‘deserve’ the same rights, freedoms, and privileges as their white counterparts.
Formalizing Racism in Immigration:
Anti-Asian Sentiments from 1882-1924
Chinese laborers became one of the first targets of exclusionary immigration laws as a response to rising anti-Chinese sentiment for “displacing” white workers. This public and political fervor culminated first in the 1875 Page Act (which banned Chinese women) and then in the 1882 Chinese Exclusion Act, the first laws to formally ban a whole segment of people from immigrating to the U.S.
While the Page Act was framed as an anti-prostitution act, protecting the “morals” of the American public, legal scholar Ming Zhu notes: “If the focus were truly on involuntary prostitution alone, the mention of shoemakers, farmers, printers, and the danger of an overwhelming wave of Chinese laborers would be entirely out-of-place.” Initially, the 1882 Act was focused on halting Chinese immigration over a 10-year period, but subsequent laws piled on arbitrary regulations and extended this “indefinitely” — that is, until 1965. Through the various stages of Chinese (and subsequently all Asian) exclusion, the American state began to write its playbook for nativism, or legal policies geared towards protecting native-born and already-naturalized American citizens.
Two major Supreme Court cases laid the long-standing foundation for our government’s ability to exclude. In Chae Chan Ping v United States (1889) and Fong Yue Ting v United States (1893), the Supreme Court used racist arguments to strike down two challenges to Chinese exclusion. In the majority opinion for Chae Chan Ping, Justice Stephen Field characterized the Chinese as “dangerous to…peace and security”, “strangers in our land”, and “menaces to our civilization.” This reflected widespread nativist sentiments, shouted by Americans who felt financially threatened by Chinese laborers. This, the Supreme Court declared, made it permissible for Congress to ban such people from our country.
Additionally, Chae Chan Ping established the plenary power doctrine, or the rule that Congress’s power over immigration is absolute. Following Fong Yue Ting, the power to exclude and deport was also firmly planted into Congress hands, sans judicial review. Both cases very clearly foreshadowed that race would be a (if not the) factor used to surveil, exclude, and deport unwanted immigrants.
Shortly after, driven by fear after the Russo-Japanese War marked Asia’s ascension in modern warfare, America expanded its exclusionary regime to the entire “Asian race” via two sweeping laws. In 1917, Congress created the Asiatic Barred Zone, prohibiting “natives or descendants of natives” of most, if not all, of Asia. Importantly, though, it did not apply to white people born in the zone. Later, with the Immigration Act of 1924, Congress formalized a racial hierarchy by creating “nationality quotas” where certain numbers of immigrants per country were allowed, while still completely excluding Asia. However, nationality was always secondary to race. For example, after 1924, a Japanese person born in Brazil was not recognized as Brazilian, but Japanese.
The Immigration Act also outright banned the immigration of “aliens ineligible to citizenship” — that is, Asian “aliens” covered by the Chinese Exclusion Act or discussed in Chae Chan Ping, who were denoted as “racially ineligible to naturalize”. The justification for this ban was one of racial “difference”.
As Woodrow Wilson said, America had learned its lesson and did not want another “race problem to solve”.
When multiple Asian parties tried to make the case for citizenship during this period, race (as either biological fact or cultural fact) was always evoked. Ozawa v United States (1922) and Thind v United States (1923) are concrete examples.
After this foundation was set, Asian countries would go on to receive disproportionately small parcels of visas, and only in the wake of war and military conflict (e.g., America’s involvement in the Philippines, China’s role as a major Pacific ally in WWII, and the shame of Japanese internment). Yet it’s important to note that even then, nothing caved to the rampant anti-Asian racism of these times. This was apparent in the context of military naturalization, or the idea (enshrined in U.S. law in 1862) that those willing to fight for the U.S. were worthy of citizenship.
As sociologists Deenesh Sohoni and Amin Vafa note: “For immigrants historically considered 'racially distinct,' military naturalization afforded an opportunity to challenge preexisting conceptions of citizenship that equated color with country.” However, between 1900 and 1952, most Asian immigrants who appealed for military naturalization were rejected, as laws like Chinese Exclusion Act and Chae Chan Ping took precedence. The one exception to this is Filipinos, granted largely because the Philippines (and Puerto Rico) were a protectorate of the U.S. However, in addition to abundant racism and antagonism toward Filipino migrants in the 1930s, the U.S. was incentivized to give the islands independence so that “the rest of the civilian population would cease being U.S. nationals and would become aliens ineligible to citizenship.”
It was not until 1943 that the Chinese Exclusion Act was dismantled, and took until 1965 for quotas from Asian countries to be formally revoked by the Immigration and Nationality Act (Hart-Celler Act).
The Mexican American Identity from 1929 to 1965
The “Mexican American” identity was constructed before Chinese exclusion; its initial creation was rooted in U.S. imperialism, and its racialization coincided with its criminalization.
In the 1840s, the Mexican-American War was justified using Manifest Destiny, which presumed white superiority and non-white inferiority. Upon victory, however, America scratched its head when it encountered Mexicans living on newly-American land. These Mexicans were made “white” by law, through a “reverse one-drop rule” — that is, one drop of European (in this case, Spanish) blood was enough to confer whiteness.
Although this put newly-“white” Mexican Americans above Black and Indigenous people, “Mexican-Americans” were still not fully integrated into white American society. This marks the genesis of what legal scholar Laura Gomez (2007) describes as an “off-white” Latino identity, often leveraged to incite interracial conflict using the “carrot” of white citizenship. The racially-ambiguous Mexican-American identity planted these roots.
The Latino identity became further racialized due to America’s open southern border. Throughout the 19th and 20th century, American employers and even local governments actively recruited Mexican laborers to their farms, ranches, railroads, and mines. Up until the 1920s, little attention was paid to the southern border; people were allowed to cross over it as they pleased to fulfill labor needs.
However, the free passage of Mexicans into the U.S. and bypassing the “white-only” immigration system presented a problem to the federal government. As a reaction, Congress passed Blease’s Law, or the Undesirable Aliens Act of 1929, spearheaded by “a proud and unreconstructed white supremacist”. This made “unlawfully entering the country” a misdemeanor and returning after a deportation a felony, which would then ban any subsequent re-entry.
In this light, the beginnings of what is now ICE (Immigration and Customs Enforcement) began nearly a century before its formal establishment in 2003. After Blease’s Law, the border became a criminalized place, with “legal” entry points intentionally positioned far apart and three new prisons being constructed to detain undocumented immigrants. (These prisons remain open today.) As Mexican immigrants continued to enter the country for work or other opportunities, their identities became criminalized; Border Patrol “subjected Mexican immigrants...to kerosene baths and humiliating delousing procedures because they believed Mexican immigrants carried disease on their bodies.” (City of Inmates, Kelly Lytle Hernandez)
“Illegality” became a way for America to assert its sovereignty using racist tropes. Blease’s Law coincided with the Border Patrol’s separate repatriation campaign of 1929-1936, which detained and deported nearly 1.8 million Mexican immigrants, including U.S.-born Mexican American citizens. White supremacists and eugenicists also leveraged the trauma of the Great Depression as a justification to remove Mexican immigrants (now characterized as “stealing jobs”). According to former California State Senator Joseph Dunn, who conducted a 2004 investigation into these deportations,
“the Republicans decided the way they were going to create jobs was by getting rid of anyone with a Mexican-sounding name.”
Despite the widespread racism, the reality of unfilled jobs, especially in the agricultural sector, prompted the government to sanction programs such as the Bracero Program (1942 - 1964), where Mexican laborers were allowed into the U.S. as guest workers but not given the rights of citizenship. While the program promised set wages, free housing, decent meals, insurance, and free transportation back to Mexico at the end of the contract these were rarely upheld; as a result, many negotiated backdoor deals to enter the U.S. “illegally”.
This set the stage for Operation Wetback. From 1954-55, the American government led a fully militarized campaign to find “illegal” immigrants (many of whom were American citizens), pack them into cargo ships, and deport them back to Mexico. The media corroborated the machismo, militarized image of Operation Wetback with criminalizing descriptions of “brown peril” and of alien “hordes.” As the Latinx identity expanded to include others, such as those from Puerto Rico and the Northern Triangle, the media cast them all into an ambiguous racial image: simultaneously “illegal” yet necessary for a functioning American society.
“The way the universe of capital relates to the freedom of movement of individuals is inherently contradictory: it needs ‘free’ individuals as cheap labor forces, but it simultaneously needs to control their movement since it cannot afford the same freedoms for all people.”
America has never stopped these deportations, nor has it properly addressed the humanity of undocumented immigrants in this country. The enforcement of Blease’s Law, also known as Section 1325, expanded prolifically under Presidents Bush, Obama, and Trump. With the creation of “illegal immigration,” the American state created a problem that they’ve since become obsessed with “fixing” — without ever doing anything close.
A False Turning Point: Hart-Celler Act of 1965
1965 is heralded as a turning point in American history because the Hart-Celler Act opened the doors for immigrants all around the world. With the government finally publicly admitting that nationality quotas had resulted in heavily racialized patterns of immigration, the Act replaced them with formal equality: no nation could claim more than 7% of the available visas in any given year. President Johnson would go on to say: “[It repairs] a very deep and painful flaw in the fabric of American justice. It corrects a cruel and enduring wrong in the conduct of the American Nation.”
Hart-Celler did indeed spark a massive demographic shift. However, as with much of the Civil Rights movement, racism merely evolved after 1965. It created formal “equality” in the eye of the law, yet its implementation and execution fell short. While the Act should rightfully be celebrated for officially dismantling the Chinese Exclusion Act, it privileged immigrants who were coming for family reunification (which was unlikely for Asian Americans after decades of separation) and employment visas, which privileged highly skilled immigrants. The implicit metric for entering the U.S. became tied to immigrants’ abilities to contribute to our capitalist society. (For Asian Americans, this also set the stage for the model minority myth.)
Moreover, the Hart-Celler Act was ignorant of previous immigration flows. For the first time, it capped the number of immigrant visas available to Mexico and the Western Hemisphere, immediately creating a huge backlog. Legal scholar Gerald Lopez points out that it “made no room for the massive undocumented migration of Mexican labor that had already become an essential feature of U.S. and Mexican life and, not coincidentally, again avoided enacting employer sanctions.” While it may not be racist in intent, the choice to bypass historical injustices alluded to how insignificant the Latinx identity was —and is — in the law’s eye.
With more restrictions came more opportunities to police. As critical race theorists and legal scholars Devon Carbado and Cheryl Harris recount: The ruling of United States v. Montoya de Hernandez (1985) permitted strip searches at the border without either probable cause or a warrant; United States v. Martinez-Fuerte (1976) sanctioned a factory sweep of Latino workers by declaring actions beyond the reach of the Fourth Amendment; United States v. Brignoni-Ponce (1975), which sanctioned the use of race to justify roving patrols near the border. Anything became allowed at an increasingly racialized border, as the economic anxiety of the 1980s spurred deportations harkening back to the 1930s.
U.S. Refugee Policies from 1980 - 2000
While often viewed through the lens of humanitarianism, asylum has always been a political tool. As pointed out in the introduction to this piece, racial politics lay at the heart to offer refuge to white Canadians — who pledged their undying loyalty to this country — but never to Indigenous or enslaved peoples. When Creek Indians and African Americans were finally offered “refuge” and soon contested forms of citizenship, it would be on the basis of their labor and use. Evan Taparata (2019) traces these genealogies beautifully.
These politics (of enhanced white loyalty and displaced non-whiteness) echo the U.S.’s contemporary refugee policies, which came after WWII. In the 1950s, for example, Eisenhower rewarded parole to over 15,000 Hungarians who had resisted their Soviet-controlled government. Later, the Carter administration actively accepted over a quarter million Vietnamese, Cambodian, and Laotian refugees because they fit neatly into the U.S.’s war on communism.
In fact, asylum seekers’ “very desire for asylum provided much-needed ideological evidence of the superiority of Western liberal democracy” against communism. (Gibney 2005).
Meanwhile, nothing was offered to the millions of Muslims fleeing post-partition India, or the Mozambicans, South Africans, and Rwandans thrown into discord over recently imposed borders. Even after the U.S. officially established the Refugee Act of 1980, Salvadorans and Guatemalans were granted asylum less than 3% of the time. These groups were fleeing the Northern Triangle of Guatemala, El Salvador, and Honduras, which had erupted into civil war and genocides — much of which can and should be attributed to U.S. intervention, from extensive military training to puppet regimes to the political creation of gangs to harmful economic policies that only benefited the U.S. The U.S. could not accept refugees from these countries without also accepting responsibility for its actions.
Even after the 1980 Refugee Act formalized pathways to citizenship for asylum seekers, the U.S. Coast Guard began intercepting boats of Haitian refugees and caging them at Guantanamo Bay. This created a dangerous precedent: by remotely detaining asylum seekers, the U.S. could bypass “the need to grant them constitutional protections” like due process or freedom from cruel and unusual punishment (Gibney 2003). In stark contrast, many white-passing Cuban refugees were widely welcomed during the same time period. Yet again, racism ensured Black and Brown bodies were largely excluded from the chance at asylum.
The selectivity underlying U.S. asylum policy fits neatly into its imperialist and neocolonial history. Now that East Asian migrants have largely become palatable to America, those considered “racially ineligible to naturalize” are now Black and Brown people. Since 1980, 55% of refugees have come from Asia (including the Middle East / Southwest Asia), 28% from Europe, 13% from Africa, and 4% from Latin America (Pew Research 2019). Even when race is typically not discussed in the context of asylum, asylum policies reproduce and reinforce race by solidifying white supremacy through charity.
However, the guise of humanitarianism in the asylum process adds a dangerous element. Reagan claimed that Haitians, Guatemalans, and Salvadorians were economic, not political, migrants — and therefore ineligible for asylum. This entirely ignores the conditions that created poverty in these countries, which include violence incited by the U.S.-sanctioned gangs. Instead, poverty and violence are characterized as the natural condition of the nation and its people.
Because asylum is largely dictated on an individual basis, the U.S. Border Patrol, ICE, and immigration officers have internalized this inaccurate structural inferiority directly onto the people. Guatemalans and Salvadorians became “dangerous illegal immigrants” associated with the War on Drugs; Haitians were labeled as welfare-seekers and disease-bearers (specifically of HIV). Southeast Asian refugees were also subject to this racialized treatment, their brown skin undermining their relationship with the model minority myth.
Racial Profiling in the Name of National Security: 1996 - 2016
We include these historical examples to remind us that structural racism is historically produced. However, our current immigration regime is marked by some extreme additions, beginning with the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). These two acts essentially invented immigration enforcement as we know it today — where deportation is a constant and plausible threat to millions. It vastly expanded the number of crimes that would trigger a deportation for even green card-holders, including low level drug crimes, without any due process. Of course, “drugs” and other crimes were already firmly associated with only a specific segment of immigrants.
IIRIRA disregarded most grounds for deportation appeals, eliminated much judicial discretion in cases, and created the “expedited removal” that Trump quotes often. It also allowed individual Border Patrol agents to rapidly issue orders of deportation to people arriving at the border, unless a person can demonstrate to immigration officials that they have a “credible fear” of persecution in their home country. If the officials determine that a person’s fear is credible, they may then apply for asylum; if not, they are deported.
As legal scholar Gabriel Chin has pointed out, racial profiling was now essentially codified into immigration law. According to law enforcement officials, however, they were not interested in discriminating against Latinos but rather interested in arresting people who violate immigration law, the majority of whom “just happen to be” Latinos.
Unsurprisingly, this implicit discrimination expanded post-9/11, when “national security” became the default reason for deportations and militarized enforcement. Plenary power persisted here; one example is the Special Registration Program, controlled by INS and later the Department of Homeland Security (DHS) from 2002 to 2011. The program targeted men from majority-Muslim countries by requiring them to register and periodically re-register with immigration officials regarding their visa status. While the program was enacted to “defend national security”, it was nothing more than an opportunity to enforce a racial identity and persecute a religious faith.
Many have pointed out how 9/11 solidified and reinvigorated the “Arab” / “Muslim” identity. While Arabs have bounced between whiteness, Blackness, and colonial imaginaries throughout history, after 9/11 they were boxed into a Brownness linked to terrorism — a criminality familiar to Latinos and Southeast Asians. Fear was used to legitimize the government’s ability to exclude. With 9/11 and the U.S.’s failure to “win” in Iraq and Afghanistan, the media staged our physical borders as our last frontier against this civilizational threat of Islam as both religion and race.
Prior to the mid-1990s the annual number of deportations had not exceeded 50,000 for decades. By the turn of the century, deportations were at just under 200,000 annually. With the passage of the Patriot Act in late 2001, which granted the power to deport anyone the Attorney General had “reason to believe” might facilitate terrorism, the number of deportations reached nearly 400,000 in 2009 and peaked at 430,000 in the middle of the Obama era. (Even though mass deportations were launched in the name of the war on terrorism, Mexican immigrants actually bore the brunt of them, comprising 72% of those removed in 2009. More data can be found here and here.)
Moreover, racial profiling does not only happen on the federal level; the effects trickle down. Since Bush established DHS in 2002, which houses ICE and Customs and Border Patrol (CBP), its budget has steadily increased over the years. Local law enforcement soon became deputized to assist with immigration raids, and by 2007 all fifty states had enacted some law dealing with “illegal immigration.” Most severely, Sheriff Joe Arpaio of Maricopa County, Arizona, built his reputation on his tough stance toward “illegal immigrants.”
Arizona entered the national conversation as a result of not only Arpaio but also S.B. 1070, or the Support Our Law Enforcement and Safe Neighborhoods Act. The law openly declared its policy to be “attrition through enforcement” and its intent to make living in Arizona virtually impossible for undocumented immigrants. It required police determine a person's citizenship status in any "lawful stop" and made not carrying proof of status a federal misdemeanor, further enabling racial profiling.
(The Supreme Court has since struck down several parts of this law, but upheld the immigration status checks.)
Rather than defend the humanity of undocumented immigrants, Obama responded to S.B. 1070 by attempting to gain the public’s trust. He enhanced both ICE and CBP, and released statements on his unparalleled enforcement record. As a result, Obama is often discussed as a “Deporter-in-Chief”, with his first years of office overseeing “unprecedented levels of personnel, technology, and resources to the Southwest border” and a widely increased number of “boots on the ground” (i.e. Border Patrol agents). However, his militarization is merely the legacy of Presidents before.
In becoming racialized, the border has blanketed the country. More than a line on a map that separated us from Mexico, it became inscribed on the skin of BIPOC at large. More than a marker of difference, it became a marker of death. Between the Arizona desert littered with backpacks — a product of the U.S.’s “Prevention through Deterrence” campaigns — and the looming risk of deportation to warzones, immigrants are no longer teetering on a line of belonging, but life or death.
Xenophobia Codified: The Trump Era
While Trump may seem different in how he has gone above and beyond to restrict both illegal and legal immigration pathways, none of his policies are necessarily “new.” His brand of nativism continues to use racism to protect an immiserating capitalist order, racializing immigrants to promote the idea of economic prosperity requires punishing many. What is significant, though, is how widely and comprehensively he pulls from history.
Sarah Pierce and Jessica Bolter from MPI have rigorously covered the wide expanse of nearly 400 racist immigration policies that Trump has enacted, most of which are in the name of the plenary power doctrine. To highlight some continuities across time, we’ve denoted some examples of his deeply racist ideology towards immigration below:
1/ A new denaturalization task force has begun working to strip citizenship from naturalized American citizens. While there are few legal grounds for denaturalization, the administration has already referred 100 cases to the Justice Department for prosecution. The creation of the task force is causing a sense of insecurity and uncertainty among naturalized citizens and permanent residents, hearkening back to the Mexican repatriation campaigns of 1929.
2/ The administration has put into force elements from the IIRIRA that were never implemented. For example, ICE has begun levying fines of up to $799 per day for unauthorized immigrants who remain in the country in violation of a removal order. This pulls heavily from the public charge rule initially created in the wake of the Chinese Exclusion Act. What began as a $0.50 surcharge on Mexican immigrants — insurance that they will not become a “public charge” or burden on taxpayers’ wallets — has now expanded into a wealth test by denying green cards to any immigrants who “may” become a public charge.