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The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921–1965

  • Mae M. Ngai

In January 1930 officials of the Bureau of Immigration testified about the Border Patrol before a closed session of the House Immigration Committee. Henry Hull, the commissioner general of immigration, explained that the Border Patrol did not operate “on the border line” but as far as one hundred miles “back of the line.” The Border Patrol, he said, was “a scouting organization and a pursuit organization…. [Officers] operate on roads without warrants and wherever they find an alien they stop him. If he is illegally in the country, they take him to unit headquarters.”

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1. In 1891 Congress created the Immigration Bureau as part of the Department of Commerce and Labor (which became the Department of Labor in 1913). The Immigration Service was the Bureau's field organization; the Border Patrol was a division of the Service. In 1932 the Immigration Bureau and Naturalization Bureau merged to form the Immigration and Naturalization Service (INS). In 1940 Congress moved the INS to the Department of Justice.

Transcript, testimony before Executive Session of the House Committee on Immigration and Naturalization (hereafter “House Immigration Committee”), Jan. 15, 1930, file 55688/ 876–1, entry 9, Records of the Immigration and Naturalization Service, Record Group 85, National Archives (Washington) (hereafter “INS”).

2. Ibid.; Act of Feb. 27, 1925 (43 Stat. 1049). The bureau's policy was an expansive interpretation of a 1916 federal court ruling, Lew Moy et al. v. United States (237 Fed. 50). In that case the court upheld the arrest of Chinese aliens two hundred miles north of the Mexican border on the grounds that the alleged act of conspiracy to smuggle had not yet been completed. Commissioner General of Immigration to the Secretary of Labor, Annual Report (hereafter INS Annual Report), fiscal year ending June 30, 1930, p. 36; “Immigration Border Patrol” (preliminary hearing, unrevised), March 5, 1928, Hearings before the House Immigration Committee, 70th Congress, First Session (Washington, D.C.: GPO, 1930), 5.

3. Chae Chan Ping v. U.S., 130 U.S. 581 (1889); Nishimura Eiku v. U.S., 142 U.S. 652, 659 (1892); Fong Yue Ting v. U.S., 149 U.S. 698, 706, 723 (1893). See also Bosniak, Linda S., “Membership, Equality, and the Difference That Alienage Makes,” New York University Law Review 69 (Dec. 1994): 10471149.

4. The official record is not without problems. Data on apprehensions and deportations do not represent all unlawful entries and are further skewed by policy decisions to police certain areas or populations and not others. On methodologies employed, see “Illegal Alien Resident Population,” INS Statistical Yearbook (1998); see also Edmonston, Barry, Passel, Jeffrey, and Bean, Frank, Undocumented Migration to the United States: IRCA and the Experience of the 1980s (Santa Monica, Ca.: Rand Corporation, 1990), 1618, 27. I thank Neil Gotanda for suggesting that the racial concept of “passing” may be applied to illegal immigrants.

5. Neuman, Gerald L., Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton: Princeton University Press, 1996), 1943; Parker, Kunal, “From Poor Law to Immigration Law: Changing Visions of Territorial Community in Antebellum Massachusetts,” Historical Geography 28 (2000): 6185. On migration and nineteenth-century economic development, see Montgomery, David, The Fall of the House of Labor (New York: Cambridge University Press, 1987), 7074; Bodnár, John, The Transplanted: A History of Immigrants in Urban America (Bloomington: Indiana University Press, 1985), xviii–xix; Zolberg, Aristide, “Global Movements, Global Walls: Responses to Migration, 1885–1925,” in Global History and Migrations, ed. Gungwu, Wang (Boulder, Col.: Westview, 1997), 279. On the transition from state to federal regulation of immigration, see Bilder, Mary Sarah, “The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce,” Missouri Law Review 61 (1996): 744824.

6. Hutchinson, Edward, Legislative History of American Immigration Law, 1798–1965 (Philadelphia: University of Pennsylvania Press, 1981), 163–68. 22 Stat. 58 (first Chinese exclusion law, 1882); 22 Stat. 214 (Immigration Act of 1882); 23 Stat. 332 (Alien Contract Labor Law, 1885). On criminal anthropology, anti-Chinese coolieism, and late nineteenth-century anti-modernism, see Lye, Colleen, “Model Modernity: The Making of Asiatic Racial Form, 1882–1943” (Ph.D. diss., Columbia University, 1999).

7. Hutchinson, Legislative History, 447.

8. Congress extended the statute of limitation for deportation to two years from time of entry in 1903 (32 Stat. 1213) and to three years in 1907 (34 Stat. 898). On the Palmer Raids, see Preston, William Jr, Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933 (Cambridge: Harvard University Press, 1963).

9. Historical Statistics of the United States from Colonial Times to 1970 (Washington, D. C.: GPO, 1975), 105, 113; INS Annual Report, 1921, pp. 14–15; Vleck, William Van, Administrative Control of Aliens (New York: Commonwealth Fund, 1932), 20. See also Clark, Jane Perry, Deportation of Aliens from the United States to Europe (New York: Columbia University Press, 1931), 275.

10. Higham, John, Strangers in the Land: Patterns of American Nativism, 1860–1925, 2d ed. (1955; New Brunswick, N.J.: Rutgers University Press, 1985), 204–7, 301; Montgomery, Fall of the House of Labor, 457–58; Sassen, Saskia, Guests and Aliens (New York: New Press, 1999), 8384; Torpey, John, The Invention of the Passport (New York: Cambridge University Press, 2000), 111–21; Zolberg, Aristide, “The Great Wall against China,” in Migration, Migration History, History: Old Paradigms and New Perspectives, ed. Lucassen, Jan and Lucassen, Leo (Bern and New York: Peter Lang, 1997).

11. Act of May 19, 1921 (41 Stat. 5); Act of May 26, 1924 (43 Stat, 153); Historical Statistics, 105. Not all immigration was subject to numerical quota. Immediate family members of U.S. citizens could immigrate outside the quota limit, as “non-quota immigrants.” Natives of the countries of the Western Hemisphere were not subject to quotas. At the same time, all Asians were excluded as “persons ineligible to citizenship.” The quotas, then, were directly principally at European countries.

12. Ngai, Mae M., “The Architecture of Race in American Immigration Law: A Re-examination of the Immigration Act of 1924,” Journal of American History 86 (June 1999): 6792. See also Divine, Robert A., American Immigration Policy (New Haven: Yale University Press, 1957); Higham, Strangers in the Land; King, Desmond, Making Americans (Cambridge: Harvard University Press, 2000).

13. Act of May 26, 1924, sec. 14. Those who entered before 1924 continued to be subject to deportation according to the terms of the Immigration Act of 1917.

14. Act of Feb. 27, 1925 (43 Stat. 1049); Act of March 4, 1929 (45 Stat. 1551).

15. Fong Yue Ting v. U.S., at 708; Wong Wing v. U.S., 163 U.S. 228 (1896); Flora v. Rustad, 8 Fed. (2nd) 335.

16. Between 1930 and 1936 the service brought over 40,000 criminal cases against unlawful entrants, winning convictions in some 36,000, or 90 percent, of them. Secretary of Labor, Annual Report, 1933, p. 45; INS Annual Reports, 1929–32; Secretary of Labor, Annual Reports, 1933–36.

17. Van Vleck, Administrative Control, 21; INS Annual Report, 1925, p. 9; White testimony in “Lack of Funds for Deportations,” Hearings before the House Immigration Committee, 70th Congress, First Session, on HR 3, HR 5673, HR 6069; Jan. 5, 1928, Hearing no. 70.1.1. (Washington, D.C.: GPO, 1928), 10.

18. Historical Statistics, 114. Figures include deportation under formal warrant and voluntary departures.

19. INS Annual Report, 1931, pp. 255–56.

20. I am grateful to Kunal Parker for suggesting this illustrative formulation.

21. Act of May 24, 1924, Sec 7 (b), (d).

22. Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998), 130–31. See also Arendt, Hannah, The Origins of Totalitarianism (New York: Harcourt Brace, 1979, 1951), 267302. According to Agamben, refugees and stateless persons created by World War I included 1.5 million White Russians, 700,000 Armenians, 1 million Greeks, 500,000 Bulgarians, and hundreds of thousands of Germans, Hungarians, and Rumanians. France (1915), Belgium (1922), Italy (1926), and Austria (1933) denationalized persons of “enemy origin” and others deemed unfit for citizenship by reasons of birth, culminating of course in the Nuremberg citizenship laws and the Nazi concentration camps. Agamben points out, “One of the few rules to which the Nazis consistently adhered during the course of the “Final Solution” was that Jews could be sent to the extermination camps only after they had been fully denationalized (stripped even of the residual citizenship left to them after the Nuremberg laws).”

23. Agamben, Homo Sacer, 126.

24. INS Annual Report, 1925, pp. 12–13 (emphasis added).

25. Evening Express (Los Angeles), Dec. 6, 1930, HR 71A–F16.2, in Records of the U.S. House of Representatives, RG 155, National Archives (Washington)(hereafter “House records”); Madison Grant, “America for the Americans,” Forum, Sept. 1925, p. 354; Survey, March 15, 1929, p. 796.

26. Dept. of Labor Solicitor, “In re whether aliens who violate any of the provisions of the prohibition laws are subject to deportation,” Sept. 17, 1924, file 54933/351–10 [entry 9], INS; McClatchy and Fisk to Johnson, Dec. 4, 1930, HR71A-F16.4, House records. It is worth noting that bootlegging itself was not a deportable offense. As vague as the term “crimes of moral turpitude” was, the Labor Department did not so classify violation of the Volstead Act.

27. Interview of Edwin M. Reeves by Robert H. Novak, June 25, 1971, transcript, tape no. 135, p. 5, Institute of Oral History, University of Texas, El Paso (microfilm); California Joint Immigration Committee, “Deportable Aliens,” release #251, Jan. 24, 1930, Press releases and statements, CJIC Papers, Bancroft Library, University of California, Berkeley.

28. INS Annual Report, 1927, pp. 15–16 (emphasis added).

29. Organized labor, which was generally restrictionist, opposed alien registration on grounds that such information could be used against union activists. See sundry correspondence from union leaders to Congressmen in file HR69A-H3.5, House records.

30. I. F. Wixon, “Lack of Funds for Deportations,” Hearings before the House Immigration Committee on H.R. 3, H.R. 5673, H.R. 6069, 70th Cong., 1st sess., 5 January 1928, 22–23.

31. Chinese were the first illegal aliens and continued to be racially constructed as unalterably foreign. But they do not appear in deportation statistics or discourse because Chinese illegal immigrants mostly comprised persons who claimed to be U.S. citizens by native birth or descendants of those citizens. Deportation was exceedingly difficult because the fraudulent papers were actually official documents issued by the Immigration Service. See Hsu, Madeline Y., Dreaming of Gold, Dreaming of Home: Transnationalism and Migration between the United States and South China, 1882–1943 (Stanford: Stanford University Press, 2000), chap. 3; Lee, Erika, “Enforcing and Challenging Exclusion in San Francisco: U.S. Immigration Officers and Chinese Immigrant, 1882–1905,” Chinese America: History and Perspectives 11 (1997): 115; Ngai, Mae M., “Legacies of Exclusion: Illegal Chinese Immigration during the Cold War Years,” Journal of American Ethnic History 18 (Fall 1998): 335.

32. Rak, Mary Kidder, Border Patrol (Boston: Houghton Mifflin, 1938), 17.

33. I. F. Wixon, “Mission of the Border Patrol,” Lecture no. 7, March 19, 1934 (Washington, 1934), 2.

34. The Chinese Division was also called the Outside Division because it operated separately from the main Immigration Service. In general the Outside Division was understaffed and “not overloaded with talent.” Perkins, Clifford, Border Patrol: With the U.S. Immigration Service on the Mexican Boundary, 1910–1954 (El Paso: Texas Western Press, 1978), 9, 75.

35. Sánchez, George, Becoming Mexican American (New York: Oxford University Press, 1993), 5253; INS Annual Report, 1919, pp. 24–25, 61; INS Annual Report, 1923, p. 16.

36. Marian Smith, “The INS at the U.S.-Canadian Border, 1893–1933: An Overview of Issues and Topics” (paper presented at the annual meeting of the Organization of American Historians, Toronto, April 23, 1999).

37. INS Annual Report, 1934, p. 96; see also Ramirez, Bruno, Crossing the 49th Parallel: Migration from Canada to the United States, 1900–1930 (Ithaca: Cornell University Press, 2001), chaps. 1–3; Klug, Thomas A., “The Detroit Labor Movement and the United States-Canada Border, 1885–1930,” Mid-America 80 (Fall 1998): 209–34; Gerstle, Gary, Working Class Americanism: The Politics of Labor in a Textile City (New York: Cambridge University Press, 1989).

38. Testimony of T. G. Gallagher, Continental Sugar Co., Toledo, in “Immigration from Countries of the Western Hemisphere,” Hearings before House Immigration Committee, 70th Congress, First Session, Feb 21–April 5, 1928, at 555–57; oral history interview with Rudolfo M. Andres by Helen Hatcher, June 27, 1981, file BA/NC81–Fil-004–HMH-1, Demonstration Project for Asian Americans (Seattle).

39. “The Eclipse of Ellis Island” (n.a.), Survey, Jan. 19, 1929, p. 480.

40. Walter Elcarr to Commissioner General, January 11, 1924; W. J. Egan to John H. Clark, March 25, 1924; John Clark to Commissioner General, March 27, 1924; file 53990/160A, box 792, accession 60A600, INS; W. F. Blackman, “Smuggling of aliens across the Canadian border,” Jan. 21, 1925, file 53990/160C, ibid.; INS Annual Report, 1923, p. 16.

41. INS Annual Report, 1925, pp. 9, 18; INS Annual Report, 1929, p. 7; INS Annual Report, 1930, p. 13; INS Annual Report, 1931, p. 24; INS Annual Report, 1932, p. 17.

42. INS Annual Report, 1927, p. 12.

43. INS Annual Reports, 1924–1932.

44. INS Annual Report, 1925, p. 18. See also Smith, “The INS at the U.S.-Canadian Border.”

45. INS Annual Report, 1925, p. 19.

46. After 1927, expulsions include both formal deportations under warrant and voluntary departures. INS Annual Report, 1928–1932; Secretary of Labor, Annual Report, 1933–1938.

47. Metz, Leon, Border: The U.S.-Mexico Line (El Paso, Tex.: Mangan Books, 1989), 2040; Martínez, Oscar, Troublesome Border (Tucson: University of Arizona Press, 1988), 1721, 87.

48. Speech of John Farr Simmons, Chief of Visa Office, State Department, at Conference on Immigration, Williamstown, Mass. [1930], 7–9, file Sen71A-Fll, box 93, Records of the U.S. Senate, Record Group 46, National Archives (Washington); Sánchez, Becoming Mexican American, 60–61.

49. Irving McNeil to J. W. Tappan, U.S. Public Health Service, Dec. 22, 1923; Inspector in charge to Supervising Inspector, El Paso, Dec. 13, 1923, file 52903/29, entry 9, INS. See also “Immigration Border Patrol,” 31–32. Chinese immigrants landing at Angel Island were subjected to rigorous medical inspection and prolonged interrogation, but not mass bathing and delousing. On Chinese inspection procedures, see Erika Lee, “At America's Gates: Chinese Immigration during the Exclusion Era” (Ph.D. diss., University of California, Berkeley, 1999).

50. INS Annual Report, 1925, p. 15.

51. Ibid.; Sánchez, Becoming Mexican American, 59; David Blackwell to SW Regional Commissioner, “Border Patrol 50th Anniversary,” Jan. 19, 1954, in Edwin Reeves oral history file, Institute of Oral History, University of Texas, El Paso.

52. Perkins, Border Patrol, 95, 102.

53. Nick Collaer, Serial No. 58, Feb. 14, 1927, file 55494/25, box 3, accession 58A734, INS; Perkins, Border Patrol, 96.

54. Perkins, Border Patrol, 96; Edwin Reeves interview, 5; David Blackwell to SW Regional Commissioner, “Border Patrol 50th Anniversary”; INS Annual Report, 1930, p. 37. El Paso district circulars by G. C. Wilmoth, on going to Mexico to drink alcohol, on and off duty, serial no. 2274, Sept. 2, 1924, reissued Feb. 16, 1928; on careless and reckless driving and failure to maintain vehicles, serial no. 4073, April 3, 1929; on reading or “entertaining friends by relating stories or Jokes” while on duty, serial no. 4136, Nov. 21, 1929; on engaging in “useless and harmful talk to outsiders,” serial no. 4133, Nov. 19, 1929; on taking gratuities from aliens, serial no. 4127, Oct. 1, 1929, file 55494/25–A, box 3, accession 58A734, INS.

55. Testimony of Henry Hull, Jan. 15, 1930, House Immigration Committee, INS.

56. INS Annual Report, 1930, p. 41.

57. Bisbee (Arizona) Review, Feb. 1, 1927; G. C. Wilmoth to Chief Patrol Inspectors, June 7, 1929, file 55494/25–A, box 3, accession 58A734, INS; D. W. MacCormack, “The Spirit of the Service,” in U.S. Dept. of Labor, Bureau of Immigration, Problems of the Immigration Service: Papers presented at a Conference of Commissioners and District Directors of Immigration, January 1929 (Washington, D.C.: GPO, 1929), 4.

58. “Immigration Border Patrol,” 30.

59. According to Douglas Foley, the federal government “left [the] southern labor force to work out their own problems with local Texas Rangers, the Border Patrol, and hostile Anglos.” Foley, , From Peones to Politicos: Class and Ethnicity in a South Texas Town, 1900–1987 (1911; Austin: University of Texas Press, 1988), 18.

60. Perkins, Border Patrol, 116; La Opinión, Jan 29, 1929, p. 1 (trans, from Spanish). In 1932 the INS counted 3,812 apprehensions along the Canadian border and 19,072 along the Mexican border. INS Annual Report, 1932, p. 44. The INS did not report comparable data in other years.

61. R. M. Cousar, Inspector in Charge at Nogales, circular, May 19, 1928, HR70A-F14.3, box 236, House records; on commuter classification, see Karnuthv. US, 279 U.S. 231 (1929); INS Annual Report, 1930, p. 16; Herzog, Lawrence, “Border Commuter Workers and Transfrontier Metropolitan Structure along the U.S.-Mexico Border,” in U.S.-Mexico Borderlands: Historical and Contemporary Perspectives, ed. Martinez, Oscar (Wilmington, Del: Scholarly Resources, 1996), 179; on the bath requirement, see José Cruz Burciaga interview by Oscar Martinez, Feb. 16, 1972, transcript of tape 148, Institute of Oral History, University of Texas-El Paso, 20–22.

62. “Immigration Border Patrol,” 18; Cardoso, Lawrence, Mexican Emigration to the United States, 1897–1931 (Tucson: University of Arizona Press, 1980), 94; Taylor, Paul, “Mexican Labor in the U.S.: Migration Statistics,” University of California Publications in Economics 6.3 (July 31, 1929): 244.

63. U.S. Congress, Senate, Committee on Immigration, “Deportation of Criminals, Preservation of Family Units, Permit Noncriminal Aliens to Legalize their Status,” 74th Congress, Second Session, Feb. 29, 1934, p. 122.

64. Fong Yue Ting v. U.S., at 743, 737.

65. “Deportation of Aliens (Notes),” Columbia Law Review 20 (June 1920): 683.

66. Clark, Deportation of Aliens; U.S. National Commission on Law Observance and Enforcement, Report on the Enforcement of the Deportation Laws of the United States (Washington, D.C.: GPO, 1931) (hereafter “Wickersham Report”); Van Vleck, Administrative Control.

67. Salyer, Lucy, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995), 172–83; Japanese Immigrant Case (Yamata v. Fisher), 189 U.S. 86 (1903).

68. Wickersham Report, 29.

69. Van Vleck, Administrative Control, 26, 90–95; Wickersham Report, 65, 157–58, 170–71.

70. Van Vleck, Administrative Control, 99–100, 107; Clark, Deportation of Aliens, 324; Kohler, Immigration and Aliens, 413; Wickersham Report, 107–8.

71. Van Vleck, Administrative Control, 237.

72. Clark, Deportation of Aliens, 309; Van Vleck, Administrative Control, 97–98, 119–25.

73. INS Annual Report, 1928–1932; Secretary of Labor, Annual Report, 1933–1936.

74. Horwitz, Morton, The Transformation of American Law: The Critique of Legal Orthodoxy, 1870–1960 (New York: Oxford University Press, 1992), 189, 199.

75. The Nation, April 29, 1931, p. 463; Note, “Statutory Construction in Deportation Cases,” Yale Law Journal 40 (1931): 1283.

76. Van Vleck, Administrative Control, 126–27, 136–37.

77. Ibid., 119, 125, 236.

78. Ibid., 124–25.

79. A district immigration director told Clark that a majority of deportation cases stemmed from so-called “grudge reports.” Clark, Deportation of Aliens, 324.

80. Van Vleck, Administrative Control, 124.

81. Ibid., 29.

82. Kohler, Immigration and Aliens, 38; Meyer v. Nebraska, 262 U.S. 390 (1923); Gris-wold v. Connecticut, 381 U.S. 479 (1965). In Immigration Commissioner of Port ofN.Y. v. Gottleib, 265 U.S. 310 (1924), the Court rejected the argument that family unification could override the quota law. However, Congress acknowledged the primacy of family unity by giving non-quota status to the wives and minor children of U.S. citizens in the Immigration Act of 1924. On the Supreme Court's use of Meyer to invent a tradition in support of family rights, see Minow, Martha, “We the Family: Constitutional Rights and American Families,” Journal of American History 74 (Dec. 1987): 959–83.

83. “Statutory Construction in Deportation Cases,” 1236–37; Wold, Emma, “Alien Women vs. the Immigration Bureau,” Survey, Nov. 15, 1927, p. 217; [NS Annual Reports, 1925–1932.

84. Browne v. Zubrick, 45 F. 2d 931 (CAA 6th 1930); Iorio v. Day, 34 F. 2d 920 (CAA 2d 1929); see also Lisotta v. U.S., 3 F. 2d 108 (CAA 5th 1924); U.S. ex rel. Klonis v. Davis, 13 F. 2d 630 (CAA 2d 1926).

85. “Pardons and Commutations,” Public Papers of Governor Herbert S. Lehman, 1933–1942.

86. INS Annual Report, 1931, pp. 13–14.

87. Secretary of Labor, Annual Report, 1934, p. 53.

88. Keller, Morton, Regulating a New Society: Public Policy and Social Change in America, 1900–1933 (Cambridge, Mass.: Harvard University Press, 1994), chaps. 3–4; Addams quoted in Survey, July 15, 1930, p. 347; Interpreter, April 1929, p. 76.

89. “Frequent Deportation of Mexicans,” La Opinión, Jan. 30, 1929, p. 2 (translated from Spanish).

90. INS Annual Report, 1925, pp. 12–13; Act of March 2, 1929 (45 Stat. 1551).

91. INS Annual Report, 1930–1932; Secretary of Labor, Annual Report, 1933–1940; Taylor, Paul S., “Mexican Labor in the U.S.: Dimmit County, Winter Garden District, South Texas,” University of California Publications in Economics 6 (1930): 322.

92. On Perkins, see Martin, George, Madam Secretary: Frances Perkins (Boston: Houghton Mifflin, 1976). MacCormack came from an elite New York family. He was a cousin of Eleanor Roosevelt, a banker, and former diplomat. I am grateful to Marian Smith for biographical information on MacCormack.

93. Secretary of Labor, Annual Report, 1934, p. 50.

94. Report of the Ellis Island Committee (New York [n.p.], 1934), 77, 87.

95. Secretary of Labor, Annual Report, 1934, pp. 50–52.

96. D. W. MacCormack, “Memorandum of the Commissioner of Immigration and Naturalization to the Committee on Immigration of the Senate and the Committee of Immigration and Naturalization of the House of Representatives, Relative to Certain Proposed Changes in the Immigration Law,” April 24, 1934, p. 2; U.S. Senate, Committee on Immigration, “Deportation of Criminals, Preservation of Family Units, Permit Noncriminal Aliens to Legalize their Status,” 74th Congress, Second Session, Feb. 24, 29, March 3, 11, 1934, pp. 16, 198.

97. “Deportation of Criminals,” 218–19.

98. Immigration Act of 1917 (39 Stat. 874). The 1917 act included twelve provisos, or exceptions, to the law's rules of exclusion. See Senate Report 352, 64th Congress, First Session, p. 6, on the Seventh Proviso as a hardship clause. See also Letter, Frances Perkins to Rep. Dave Batterfleld, Jr., Sept. 17, 1940, file Immigration, General, 1940, box 66, Secretary's General Subject Files, Records of the Dept. of Labor, RG 174, National Archives (College Park) (hereafter “Perkins papers”).

99. Perkins to Batterfleld; Memorandum, Attorney General to Rufus Holman, Jan. 4, 1943, p. 4, file 55819/402D, box 75, accession 58A734, INS.

100. Memoranda, A. M. Doig, Acting District Director Detroit to Commissioner General, Sept. 7, 1933; MacCormack to District Directors, Newport [VT], Buffalo, NY, Detroit, Grand Forks [ND], and Seattle, Dec. 18, 1933, file 55819/402, box 75, accession 58A734, INS. Pre-examination as described here is distinguished from the INS policy of “pre-inspection,” which refers to inspection abroad before emigration.

101. Dept. of Immigration and Colonization [Canada], Official Circular no. 31, Feb. 23, 1935; MacCormack to A. L. Jolliffee, Commissioner of Immigration [Canada], Oct. 21, 1935, file 55819/402, INS.

102. Letter, Perkins to Mrs. Roosevelt, Jan. 27, 1939, file “Immigration-Deportations 1939,” box 69, Perkins papers.

103. 8 CFR pt. 142.

104. Letter, James Houghterling to Sen. James Lewis, April 20, 1938, file 55819/402B, box 75, accession 58A734, INS; I. F. Wixon to Secretary of State, Nov. 8, 1937, file 55819/ 402A, ibid.

105. Sen. Robert Reynolds to James Houghterling, April 4, 1938, file 55819/402B, box 75, accession 58A734, INS; “Seven Hundred Deportable Aliens Sheltered by U.S. Labor Department,” Congressional Record, Oct. 10, 1940, pp. 20424–28; Perkins to Batterfield, Sept. 17, 1940.

106. Attorney General to Sen. Rufus C. Holman, Jan. 4, 1943, file 55819/402D, INS.

107. I. F. Wixon to Secretary of State, Nov. 8, 1937; “Summary of cases listed on page 47 of the State Dept. Appropriation Bill, 1939, with particular reference to the nature of the crimes involving moral turpitude in connection with which the Seventh Proviso to Section 3 of the 1917 Act was invoked by the Secretary of Labor,” file 55819/402A, INS; “Seven Hundred Deportable Aliens Sheltered by U.S. Labor Department.”

108. Five or more years of residence was required for those without citizen or legally resident alien spouse, parent, or minor child; one year of residence was required of the latter. Memorandum, Savoretti to A. R. Mackey, March 27, 1946, file 55819/402D, INS.

109. Perkins apparently wished to help Asians but the law tied her hands. For example, see the case of Ramkrishana Sakharan Jivotode, in letter, Perkins to Josephus Daniels, April 22, 1940, file Immigration-Deportation, 1940, box 67, Perkins papers.

110. Memoranda, G. C. Wilmoth to Commissioner General, Nov. 3, 1938; William Blocker to Secretary of State, Nov. 3, 1938; Wilmoth to Commissioner General, Nov. 29, 1938, file 55819/402C, box 75, accession 58A734, INS.

111. MacCormack died suddenly in 1937. It is possible that, had he lived, he would have fought for a universal application of the pre-examination program.

112. G. C Wilmoth to all inspectors in charge and chief patrol inspectors, El Paso District (draft) [1938], file 55819/402C (emphasis in original); formal application form [1942] and Part 142 of Immigration Regulations, 1943, file 55819/402D; Ugo Carusi to Tom Clark, Oct. 15, 1945, ibid.; U.S. Senate, Report of Committee of the Judiciary, “Immigration and Naturalization Systems of the U.S.,” 81st Congress, Second Session, Senate Report 1515, April 20, 1950 (hereafter “Senate Report 1515”), p. 604.

113. The INS created special forms for applications in January 1941 (1–55, 1–255, and 1–155). For a description of the application procedure, see Common Council for American Unity, “An Immigration Summary: Outstanding Facts about the Admission, Exclusion, and Deportation of Aliens,” June 1941, pp. 20–21.

114. Feingold, Henry L., The Politics of Rescue: The Roosevelt Administration and the Holocaust, 1938–1945 (New Brunswick, N.J.: Rutgers University Press, 1970), 17; Divine, American Immigration Policy, 103–4.

115. For pre-examination data, see INS Annual Reports 1942–1959; see also Senate Report 1515. Pre-examination was suspended in 1940 for about one year, as a wartime “internal security” precaution. See Attorney General to Sen. Rufus c. Holman, Jan. 4, 1943. It was reinstituted but then discontinued in 1952 because the McCarran Walter Act (66 Stat. 163) provided statutory relief for illegal aliens who entered by way of fraud or misrepresentation, who were otherwise admissible, and who had immediate family in the U.S. Sec. 241 (f), amended 71 Stat. 640 (1957). Pre-examination was reinstituted again in 1955 as a remedy to the flood of private legislation brought by illegal aliens whom the INS denied relief under 241 (f). However, Congress imposed narrower grounds for pre-examination, limiting it to persons who had acquired eligibility for non-quota status as the spouse or child of a U.S. citizen. See INS Annual Report 1955. Since 1961 relief in fraud cases has been at the Attorney General's discretion. 75 Stat. 657 (Act of Sept. 26, 1961), now 8 USC 1182 (i) (2000).

116. Act of June 28, 1940 (54 Stat. 670). For discussion on “good moral character” in suspension of deportation cases see Senate Report 1515, p. 596.

117. Published data for 1941–1960 indicate a total of 34,632 suspensions of deportation. see INS Annual Reports, 1941–1960.

118. Memorandum, Helen F. Eckerson, Statistical Unit to L. Paul Winings, General Counsel, March 12, 1946, file 55819/402D.

119. Transcript of speech by Marshall Dimock, “Security Within,” delivered to Veterans of Foreign Wars, Los Angeles, August 27, 1940; file “Immigration-Naturalization,” box 66, Perkins papers.

120. The basic terms of the Seventh Proviso were incorporated into Sec. 212 (c) of the Immigration and Naturalization Act of 1952, 66 Stat. 163. It remained in the law until 1996, when it was eliminated. Suspension of deportation was incorporated into Sec. 244 (a) of the INA. It remains in law although the grounds for it are now very narrow.

121. Administrative Procedures Act, Act of June 11, 1946 (60 Stat. 237); Wong Yang Sung v. McGrath, 339 U.S. 33; Bennett, Marion, American Immigration Policies (Washington: Public Affairs Press, 1963), 9091; Act of Sept. 27, 1950 (64 Stat. 1044). Congress repealed the exemption in 1952 and wrote provisions into the McCarran-Walter omnibus immigration act to effect the same results. On the “unmistakable purpose to exempt immigration hearings from the procedural requirements of the APA,” see President's Commission on Immigration Naturalization, and, Whom We Shall Welcome (Washington, D.C.: GPO, 1953), 159.

122. See generally Jacobson, Matthew, Whiteness of a Different Color (Cambridge, Mass.: Harvard University Press, 1998); Barrett, James and Roediger, David, “In-between People: Race, Nationality, and the ‘New Immigrant’ Working Class,” Journal of American Ethnic History 16.3 (Spring 1997): 344; López, Ian F. Haney, White by Law: The Legal Construction of Race (New York: New York University Press, 1995).

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
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