Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Part 6 of 8
Another area where the INS increased its use of administrative discretion related to racial eligibility to naturalization. As has been shown, the courts traditionally admitted or denied racially ineligible aliens during court proceedings, either according to or despite INS objections. But developments in administrative law generally began to provide INS officers with opportunities to make decisions outside the courtroom. The cases of Majid Ramsay Sharif (Shariph) and Noshad Khan are illustrative.45
Sharif, an Arab, applied for an immigration visa in 1941 but was denied as an alien racially ineligible to citizenship. Khan, an Afghan resident of the United States since 1926, faced deportation charges in 1941 for illegal entry but applied for discretionary relief as his deportation would be a hardship on his U.S. citizen wife and children. Whether the INS could afford relief to Khan and adjust his immigration status depended on whether an Afghan was racially eligible to naturalize. In both cases, because they were not petitions for naturalization, the questions went not to the courts but to the Board of Immigration Appeals (BIA).46 Administrative law could now determine the question of racial eligibility.
In Sharif's case involving the eligibility of an Arab, the board, like the courts, relied on the Thind decision. Unlike the courts, the BIA was persuaded by a brief for the U.S. government in the Thind case that argued that "whiteness," for lack of a better term, is associated with Western civilization, and Western civilization includes "so much of the Near East as contributed to, and was assimiliable with, the development of Western Civilization of Greece and Rome." Having recalled the cultural link between the ancient and modern western worlds, the board concluded "that it was not intended, either in 1790 at the time of the first enactment of the governing statute or certainly in 1940 at the time of its last enactment, that Arabians be excluded from the group of 'white persons'."47 Unless one is prepared to believe immigration officials were naturally more benign that Supreme Court justices, the Sharif case demonstrates a changed "common understanding" in 1941 from that which persuaded the court in 1923. Upon revisiting the Thind decision, the BIA came to an opposite conclusion.
The board exhibited equal flexibility in the case of Noshad Khan, which had to overcome the 1928 In re Feroz Din decision that Afghans were not white persons. To do so, the BIA questioned whether Americans had any "defined popular or common understanding" of Afghans given there were only an estimated two hundred Afghans then living in the United States. Without any popular guide, the board turned to ethnologists who provided evidence that "an Afghan is the exact prototype of the Persian." Since Persians had always been considered racially eligible to naturalize, Afghans would be as well. Because it departed so far from case law, the BIA forwarded its Khan decision for approval by the attorney general, who in turn requested the opinion of the INS. After the INS legal office supported the Khan decision, the attorney general approved it on May 26, 1945.48 Afghans had thus been found eligible to naturalize and to immigrate despite the opinion of, and without the participation of, the courts.
INS changes to the classification of race and administration of racial provisions in immigration and nationality law reflected changes in American thinking or "common understanding." During the Seventy-eighth Congress, in 1942 and 1943, eleven different bills were introduced proposing elimination of racial barriers to naturalization. While most of the bills only aimed to remove the bars to Filipino, Korean, or East Indian naturalization, they indicated a willingness or desire on the part of the American people to liberalize a restrictive policy maintained since 1924.49 It should not be forgotten that changes to naturalization at home during World War II coincided with administrative naturalization of soldiers serving in the U.S. Armed Forces overseas. Since the First World War, Congress maintained legal provisions facilitating the naturalization of U.S. soldiers despite racial ineligibility. During World War II, the practical and propaganda value of naturalization ceremonies held in Europe, North Africa, and the Pacific, in which representatives of all corners of the earth came together to pledge themselves to American ideals, fostered the image of the United States as the defender of democracy worldwide. But they also stood in uncomfortable contrast to continuing racial exclusions to citizenship on the home front.
Unlike American attitudes toward race, INS statistical methods in 1940 remained much the same as they had been at the turn of the century. The ability, willingness, or practicality of changing INS racial classification and coding depended on the service's perception of its legal requirements to record and report racial statistics. That the INS could alter or amend its statistical system became clear in the late 1930s, when additions and changes were made to the List of Races or Peoples. Further change became possible after the realization, stated in Henry B. Hazard's 1942 memorandum to Commissioner Harrison, that "race" and "people" were not defined by law but by administrative practice.
45 Matter of S--- (Exclusion proceedings, 56071/165), Oct. 18, 1941, 1 I&N 174; Matter of K--- (Deportation proceedings, 56065/802), Jan. 25, 1945, 2 I&N 253.
46 The BIA was originally created as the Board of Review at INS Central Office in Washington, with the purpose of helping the commissioner decide an avalanche of appeal cases forwarded to the commissioner after implementation of the 1924 Immigration Act. Strengthened by the Administrative Procedures Act after 1940, the board became the Board of Immigration Appeals (BIA). In the 1980s the BIA was moved out of INS to the Department of Justice, where it now exists as the Executive Office of Immigration Review (EOIR).
47 Matter of S--- (Exclusion proceedings, 56071/165), Oct. 18, 1941, 1 I&N 178-79; INS Instruction No. 168, Central Office view on the racial qualifications for entry and naturalization with respect to persons of the Arabian race, Sept. 9, 1943.
48 Matter of K--- (Deportation proceedings, 56065/802), Jan. 25, 1945, 2 I&N 256-59; "Recent Decisions of the Board of Immigration Appeals," INS Monthly Review, 3 (October 1945): 215.
49 Edward J. Shaughnessy, "Immigration and Naturalization Legislation in the Seventy-Eighth Congress," INS Monthly Review, 2 (July 1944): 12.
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.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.