Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Part 5 of 8
Change began with amendment of the traditional List of Races or Peoples devised by the Immigration Service on Ellis Island in 1898. Internal instructions issued September 11, 1936, announced two changes to the list and four additions. The two revisions illustrated a continuing mixture of race (as color) and nationality on the list. "African (black)" changed to "Negro," no doubt simplifying the classification of blacks from the Caribbean or Central and South America. Previously, blacks from Cuba or the West Indies, for example, were designated as "African" though typically not native to Africa. Another change combined the statistical codes for "Italian (north)" and "Italian (south)." In 1898, the northern and southern Italians were classified separately because the list depended heavily on language to identify differing races or peoples. By 1936, international politics held greater sway.
The same change from an ethnic to a political definition of "peoples" can be seen in the four 1936 additions to the list: Albanian, Estonian, Latvian, and Filipino. The Immigration Service had classified Latvians as Lithuanians for nearly four decades. But in 1935 the Latvian consul general began a campaign to convince the commissioner of immigration and naturalization to separate the two groups. His argument was simple: "'Lithuanian' is, of course, not a race, nor are Latvians Lithuanians, nor Lithuanians Latvians."
The North American Manx Association made a similar plea in June 1937, pointing out that the "native race or people of the Isle of Man" were as distinct from the English as were the Irish, Scottish, or Welsh, and deserved similar recognition on the List of Races or Peoples. INS Circular No. 152, of August 12, 1937, announced the addition of "Manx" to the list. And protests from the Mexican government "that Mexicans did not belong to the 'colored' races" caused INS to issue new guidance emphasizing that Mexicans were considered white for immigration and naturalization purposes. A similar response to protests from Brazil in 1942 had INS revising all references to "Spanish American" to read "Latin American."
By far the most pressing, and embarrassing, item on the List of Races or Peoples in the late 1930s was the term "Hebrew." The American Jewish Committee protested the classification of Hebrew as a race as early as 1930, warning that such "inquisition" into religion by the government was "improper and susceptible of unfortunate abuse." At that time, the solicitor for the Department of Labor wrote a long memorandum on the legal requirement for including raceand Hebrew as a raceon both immigration and naturalization forms. The department found the American Jewish Committee's complaint groundless and rejected their request. In the following years, as Nazi persecution of Jews in Europe increased, dissatisfaction with the presence of Hebrew on the list widened and deepened.
Somehow, late in the 1930s, the service was able to amend the procedure for recording race on naturalization (as opposed to immigration) records. Vague references to this change imply that traditional difficulties in "obtaining and recording proper information as to race" caused a revision of forms wherein the applicant no longer stated his race, but chose a racial designation from a list of those eligible to citizenship. This revision occurred prior to passage of the Nationality Act of 1940, evidenced by a May 7, 1940, edition of form A-2214, Application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization. A blank calling for race does not appear on the form until page three, and refers the applicant to instructions listing the choices of white, African or African descent, or Filipino. "State to which one of these classifications you belong."
All INS naturalization forms were revised after passage of the Nationality Act of 1940. Based on recommendations offered by a presidential committee studying naturalization problems since 1933, the act recodified all (and reconciled much) previous U.S. nationality law. Among proposals associated with the committee were some recommending elimination of any racial requirement for naturalization. Unfortunately, §303 of the new law extended racial eligibility to only one new group: descendents of races indigenous to the Western Hemisphere. Section 303 not only required INS to revise naturalization forms again, it raised a question of reinterpretation of the old §2169. Furthermore, it begged the question: Who are races "indigenous to the Western Hemisphere?"
Recodification of nationality law forced the INS to examine all legal language and reevaluate its administration. It also became an opportunity to reinterpret §2169, which was not repealed but was replaced for INS purposes by §303. Though the 1940 law covered only naturalization, the legislative links between racial eligibility and immigration had been established earlier. Thus any change to racial classification in administration of naturalization could affect racial classification in the immigration arena.
It was with this opportunity in mind that Commissioner of Immigration and Naturalization Earl G. Harrison began his effort to remove Hebrew from the immigration List of Races or Peoples. Two months after taking office, Harrison asked Henry Bernard Hazard, an immigration and nationality law expert and director of the service's Research and Education Division, to review the practice of racial classification on INS forms and answer the question of whether "'Hebrew' was a race." After more than thirty years of working to standardize immigration and naturalization, Hazard may have shared Harrison's obvious desire to excise the word "Hebrew" from official forms. In any event, Hazard quickly submitted a long analysis of the question, concluding that Jews or Hebrews could not properly be considered a race, "at least not in the sense in which that term is used in the immigration law."
More important, Hazard concluded that both "race" and "peoples" were subject to administrative determination under naturalization and immigration law. In his review of immigration's list, Hazard noted that the law required a record of each arriving immigrant's race but "has nothing to say about 'the people' to whom the alien may belong. The enlargement of the classification . . . to include 'peoples' appears to have been made arbitrarily, possibly because of the difficulty in determining just what the term 'race' might imply." Similarly, concerning the Nationality Act of 1940, Hazard concluded that neither the law nor regulations defined the term "race." As a result, whatever system the INS used to classify or supply race on naturalization forms was "a matter resting in administrative discretion." One year later, the term "Hebrew" no longer appeared on immigration forms and papers.
 INS General Order No. 162, Amendment of immigration statistical list of races or peoples, Aug. 4, 1936; INS Circular No. 28 [amending statistical punch card symbols], Sept. 11, 1936, file 55882/926, box 726, accession 85-58A734, RG 85, NAB.
Ibid.; Latvian Consul General Arthur Lule to the Commissioner of Immigration and Naturalization, May 11, 1935; North American Manx Association to the Commissioner of Immigration and Naturalization, June 1937; INS Circular No. 152 of August 12, 1937; Memorandum re whether the Hebrews are a race [Henry B. Hazard], Nov. 5, 1942, p. 41; INS Instruction No. 48, Changes in phraseology to be observed in connection with various immigration forms, Mar. 12, 1942, file 55882/926, box 726, accession 85-58A734, RG 85, NAB.
 "In re classification of races on naturalization and immigration forms," memorandum for the Secretary of Labor from Department of Labor Solicitor Theodore G. Risley, July 16, 1930, file 79/53, box 1280, Entry 26, RG 85, NAB.
 INS Instruction No. 177, Designation of race in immigration procedures, Nov. 8, 1943, file 55882/926, box 726, accession 85-58A734, RG 85, NAB; Form A-2214, Application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization, edition of May 7, 1940 (INS History Office, Washington, DC).
Marian L. Smith is the senior historian for the U.S. Immigration and Naturalization Service, Washington, D.C. She writes and speaks about the history of the agency. The author thanks Roger Daniels of the University of Cincinnati for his encouragement and good advice in the writing of this article. Readers may contact Ms. Smith at Marian.L.Smith@usdoj.gov.
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