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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Part 8 of 8

by Marian L. Smith

Congress became aware of the problems associated with the vague phrase "Western Hemisphere" and in July 1946 amended §303 to read "persons who are descendants of races indigenous to the continents of North or South America or adjacent islands." However, the lesson had apparently not been learned, for the same act extended racial eligibility to "persons of races indigenous to India." Within weeks of the provision's enactment, Mary P. Clark of the INS Hearing Review Unit realized "the difficulty to be encountered in interpreting the recent amendment."

Committee reports, usually helpful in revealing congressional intent, in this case stated only that while the amendment applied to East Indians, it was not meant to be limited to persons born in India. And, as had been the case for some time, ethnological texts offered no "workable yardstick." Fearing questions from the State Department on the issuance of visas to Indians, Clark suggested the INS preemptively request an official interpretation from the secretary of state. That INS considered the new §303 to present "a very serious problem of interpretation" was obvious in other Hearing Review Unit correspondence, where one official expressed his wish that "Congress had had the good sense . . . to have abolished ineligibility for citizenship on account of race altogether. When they have admitted, or rather made eligible, the negroes, Chinese, and East Indians, in my opinion it is folly to retain others on the list of ineligibles."56

The repeal of Chinese exclusion and extension of naturalization eligibility to Chinese in 1943 presented relatively fewer problems of interpretation. One case involving the question of Chinese race, however, did demonstrate that the old ideas underlying INS racial classification schemes were becoming as foreign to INS officers as they were to many of the immigrants. H. J. Hart, chief of the INS's Nationality and Status Section in San Francisco, became ever more perplexed over the 1951 case of a native of Indochina. The applicant himself, whose mother was Chinese, was baffled by questions regarding the race of his father. The naturalization examiner's questions had little meaning for the man, whose father was apparently ethnic Chinese but native to Tonkin. The case was easily decided because the applicant was predominantly Chinese and therefore eligible to naturalize. What troubled Chief Hart was the lack of recent or reasonable guidance on such questions. He did consult the Dictionary of Races or Peoples, printed by the INS in 1911 as an ethnological guide to racial classification, which identified the Indochinese as East Asian. After reading the dictionary, Hart concluded that continued use of the forty year-old guide "hardly appears to be tenable."57

By that time the presence of racial qualifications and exclusions in US nationality and immigration law had become untenable. INS Assistant Commissioner Allen Devaney responded to Chief Hart's dilemma by informing him of pending legislation that promised to eliminate racial eligibility for immigration and naturalization purposes. "If that bill is passed," Devaney explained, "questions, such as the present one, will become academic."58 The service, like the courts and the nation, had grown tired of determining racial eligibility and pressed for passage of the new Immigration and Nationality Act (INA). The bill became law on June 27, 1952, and for the first time codified immigration and nationality provisions into one comprehensive body of law.

As with Congress's expansion of racial eligibility in 1940 and 1946, major changes to the law in 1952 posed major problems for the INS. In 1949, when Congress entertained other proposals to remove racial requirements for naturalization, Assistant Commissioner Devaney then warned INS officers of the consequences of change "with respect to a matter that has been on our law books since the beginning of legislation on the subject early in our history." It was estimated that removing racial bars to citizenship would suddenly make more than eighty thousand people within the United States racially eligible to naturalization. But because of racial restrictions in the immigration law since 1924, not all eighty thousand would immediately qualify. Many would have to apply to the INS for relief and adjustment of status. By itself, the 1952 act's elimination of race as a consideration had staggering implications for INS immigration and naturalization workload. "The attendant problems which will arise," wrote Devaney, "are obvious."59

Of course, any "attendant problems" were short-lived for INS, which in 1952 adopted an entirely different scheme to classify immigrants and nonimmigrants. But the legacy of racial classification remains—in the memories of some, in the current experience of others, and in contemporary controversies over racial classification systems still employed by the US Census Bureau or university admissions offices. Most classification schemes in use today are justified as tools to describe a population or to rectify past discrimination. Yet the schemes themselves are largely products of the history just recounted here.

The case of Mostafa Hefny is a good example. In 1997 in Detroit, Michigan, Egyptian immigrant Hefny filed suit against the US government for classifying him as racially white when he was obviously black. This classification resulted from use of the obsolete Office of Management and Budget Directive #15, "Race and Ethnic Standards for Federal Statistics and Administrative Reporting," which classified Egyptians as white. Egyptians had long been considered eligible for naturalization by the courts, and the reader will recall how the Board of Immigration Appeals' 1941 reconsideration of the Thind decision in the Sharif case declared natives of the cradles of Western Civilization to be "white persons." In the early twentieth century, classification of Egyptians as white opened the door to their naturalization and no doubt other opportunities. But in 1997, Hefny complained this same classification made him ineligible for opportunities and benefits available only to minorities. Clearly, late twentieth-century changes in "common understanding" continue to add new dimensions to official-and unofficial-classifications of race.60

The history of "race" in relation to immigration and nationality law is but one example of the difficulties inherent in writing or administering legislation that employs vague concepts about which the nation is either confused, conflicted, or for which Americans do not have a concrete, constant definition. Today, legislators hear from constituents demanding action against "illegal" aliens, "terrorists," or otherwise "undesirable" immigrants. Yet even these terms exist without commonly agreed-upon definitions, without any "common understanding." The problem, at base, is the same as in 1790 when nationality law restricted naturalization to "white persons" or in 1875 when immigration law first referred to the exclusion of "obnoxious persons." Attempts to apply such provisions over two centuries invariably resulted in cases referred to the courts or administrative tribunals for reinterpretation of the statutes. Continuous efforts to refine and define Congress's original intent or to incorporate the "current understanding" of the people have given US immigration and nationality law its Byzantine nature, characterized by provisos and exemptions, each born from the case of some immigrant who confronts us with issues we, or the founding fathers, did not anticipate or comprehend.


56 Memorandum, Mary P. Clark, Hearing Review Unit, to Assistant INS Commissioner Joseph Savoretti, July 24, 1946 (Clark would later become a member of the Board of Immigration Appeals); Memorandum, G.W. Stilson to E. U. Hover, Chief, Hearing Review Unit, n.d. [July 24, 1946], file 56193/578, box 2843, accession 85-58A734, RG 85, NAB.

57 H. J. Hart, Chief, Nationality and Status Section, San Francisco, to Acting Commissioner of Immigration and Naturalization, Washington, DC, Jan. 18, 1951, file 56193/578, box 2843, accession 85-58A734, RG 85, NAB; Dictionary of Races or Peoples, Reports of the Immigration Commission, vol. 5, S. Doc. 662, 61C, 3s (1911).

58 Allen C. Devaney, Assistant Commissioner, Adjudications, to the San Francisco District Director, Mar. 13, 1951, file 56193/578, box 2843, accession 85-58A734, RG 85, NAB.

59 Devaney, "Typical Problems and Latest Developments in Naturalization Proceedings," INS Monthly Review 7 (October 1949): 51.

60 "Black or white? Egyptian immigrant fights for black classification," CNN, July 16, 1997. Hefny's story, as reported on www.cnn.com and in Jet magazine, included Hefny's contention that it was the INS who classified him so under an "INS Bulletin." Calls to this writer in the early 1990s raised the issue and led to a merry chase with bizarre results. INS never issued such a bulletin; in fact, INS did not issue guidance regarding race after 1952. Rather, the guilty document was Office of Management and Budget (OMB) Circular A-46, Directive #15, first issued on May 3, 1974. It seems the directive was not well received and was revised May 12, 1977, then finally rescinded by OMB on April 13, 1978. The OMB stressed that the directive was obsolete, had not been in effect for two decades, and was not available. Continued searching turned up one copy of the directive still at hand in the Census Bureau. Hefny encountered the directive in use by his state government in the 1980s.


About The Author

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.


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