Race, Nationality, and Reality, Part 3
INS Administration of Racial Provisions in U.S. Immigration and Nationality Law Since 1898
Summer 2002, Vol. 34, No. 2
By Marian L. Smith
The evidence that INS administrators were dissatisfied with the agency's racial classification systems, shown by the revision of naturalization forms and elimination of Hebrew from the List of Races or Peoples, makes another INS decision of the time appear even more curious. The Alien Registration Act of 1940 charged the INS with myriad new responsibilities, foremost among them the registration and fingerprinting of every alien resident in or entering the United States. The law specifically directed the commissioner to design a form for that purpose, a form that had to include the alien's date and place of entry, their present and future activities within the United States, how long they expected to remain, and any criminal record. Any additional information on the form was left to the discretion of the commissioner and the attorney general.50 The Alien Registration Program thus afforded the INS an opportunity to eliminate the question of race from at least part of its operations.
Rather than avoid the traditional problems of recording race, the INS compounded them by designing a form with five choices for the registrant: White, Negro, Japanese, Chinese, and Other. The reasons behind this choice are, for the moment, inexplicable. The racial options did not correspond to either the List of Races or Peoples, nor did they match those races then eligible for naturalization. Neither would they help or serve to identify anticipated enemy aliens should the United States be drawn into the expanding war in Europe and Asia. They were, as one employee of the Alien Registration Division complained, "a mixture of race and nationality." Unwritten statistical coding rules for Alien Registration data caused various responses to be re-coded as white, and so many disparate answers remained in the "other" category it was rendered meaningless. "For statistical purposes the race code in present use is worthless," reported the coding section, and "the fault lies in the confusion of race and nationality for this item on the registration forms." Not surprisingly, when finally published, the Alien Registration data tables contained no information as to race.51
The INS would not be free of racial considerations, of course, as long as nationality law contained racial requirements for naturalization and immigration law excluded those ineligible to naturalize. While Board of Immigration Appeals decisions began to clarify the meaning of "white persons" for INS officials, Congress at the same time introduced equally confusing language to §303 of the nationality law (the section replacing §2169 in 1940). As noted above, the Nationality Act of 1940 extended eligibility to citizenship to "descendents of races indigenous to the Western Hemisphere." In 1943 Congress repealed the Chinese Exclusion Act and made Chinese eligible for naturalization. And in 1946, Congress extended the same eligibility to Filipinos or persons of Filipino descent and "persons of races indigenous to India."52 Again, language sufficiently clear for Congress came into question in the courts. Just as they previously wrestled with the meaning of the term "white persons," the courts and INS were now called upon to determine the exact limits of the Western Hemisphere, and to decide which races were indigenous to India.
When Congress included descendents of races indigenous to the Western Hemisphere in the Nationality Act of 1940, it was understood by Congress and INS officials the intention was to make Native Americans eligible to citizenship.53 But the provision was soon adopted to support the petitions of various Pacific Islanders for naturalization. A Polynesian born in the Society Islands applied for citizenship in California in 1944, claiming to be of a race indigenous to the Western Hemisphere. The court came to two conclusions. First, though the Society Islands may in fact be within the Western Hemisphere, ethnologists traced the origin of the Polynesian race to the Eastern Hemisphere and the applicant was thus ineligible for naturalization (note well: The exact opposite of this argument supported the 1925 Ali decision). Second, there seemed no common understanding of the term "Western Hemisphere."54
The same question came before the INS in relation to immigration procedures. Noting that conventional maps placed New Zealand in the Western Hemisphere, the Department of State requested an INS decision on whether Maoris, native to New Zealand, now qualified for immigration visas or if they were still ineligible to citizenship. The INS general counsel, L. Paul Winings, began his long consideration of the subject by first determining that Maoris were neither white persons nor persons of African nativity or African descent. He then
sought to discover the prevailing geographical opinion concerning the limits of the Western Hemisphere. However, this quest led me to the conclusion that there is no universally accepted formula which fixes the bounds of the so-called Western Hemisphere. Most of the authorities consulted had no reference whatever to the Western Hemisphere, and by this silence eloquently proclaimed their rejection of any such geographic formula.
Cartographers' conventions, it seemed, were no more reliable than those of the ethnologists.
Winings was left to trace Congress's original intent in the use of the words "Western Hemisphere." He found that since adoption of the phrase in connection with the Monroe Doctrine in the 1820s, Western Hemisphere referred to North, Central, and South America and islands adjacent thereto. Such was the case not only in foreign policy statements, but also in international trade agreements and, most important, in immigration law. Certain immigration law exemptions applied to natives of Western Hemisphere countries had long been interpreted by the INS as applying to natives of the Americas and adjacent islands. Winings concluded, then, that Congress in neither 1790 nor 1940 intended Maoris to be eligible for naturalization.55
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.
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.
1 Steerage Act of March 2, 1819, 3 Stat. 489 (1819).
2 Act of March 26, 1790, 1 Stat. 103; Act of 1795, 1 Stat. 414; Act of June 18, 1798, 1 Stat. 566; Act of April 12, 1802, 2 Stat. 153.
3 Act of July 14, 1870 (amending §2169 Rev. Statutes).
4 Chinese Exclusion Act of May 6, 1882, §14, 22 Stat. 58.
5 Ian F. Haney Lopez, White by Law: The Legal Construction of Race (1996), p. 50.
6 US v. Wong Kim Ark, 169 US 649 (1898).
7 Marian L. Smith, "The INS and the Singular Status of North American Indians," American Indian Culture and Research Journal 21 (1997): 131-154.
8 Statistical Rules, 1898, file 52729/ 9, box 143, Entry 9, Records of the Immigration and Naturalization Service, Record Group (RG) 85, National Archives Building (NAB), Washington, DC. Patrick Weil provides additional interpretation of the List of Races and Peoples in "Races at the Gate: A Century of Racial Distinctions in American Immigration Policy (1865-1965)," Georgetown Immigration Law Journal 15 (Summer 2001): 625-648.
9 Victor Safford to the Commissioner of Immigration, June 8, 1898, file 52729/9, box 143, Entry 9, RG 85, NAB.
10 Immigration Act of March 3, 1903, §12, 32 Stat. 1213. Section 12 required that race be included among the information provided on immigration manifests, a requirement included in subsequent immigration laws.
11 James R. Gray, Clerk, US District Court, St. Louis, to the Secretary of Commerce and Labor, Jan. 1, 1907, file 19783/1-24, box 1572, Entry 26, RG 85, NAB.
12 Richard K. Campbell to Charles D. Thompson, Dec. 7, 1907, ibid.
13 Campbell to Andrew J. Balliet, Aug. 6, 1908, file 19783/1-24 (19783/13), box 1572, Entry 26, RG 85, NAB.
14 J. W. Porter to Chief, Division of Naturalization, Sept. 29, 1908, file 19783/1-24 (19783/16), box 1572, Entry 26, RG 85, NAB.
15 Campbell to Porter, Oct. 19, 1908, ibid.
16 Justin S. Kirrah to Secretary of Commerce and Labor, Nov. 1, 1909, file 19783/43 part 1, box 1572, Entry 26, RG 85, NAB.
17 Simon Wolf to Secretary of Commerce and Labor, Nov. 5, 1909, ibid.
18 Charles Nagel to Campbell, Nov. 11, 1909, and Campbell to all Chief Naturalization Examiners, Dec. 3, 1909, ibid.
19 US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1917 (1917), p. 11.
20 Report of Robert A. Coleman, Chief Naturalization Examiner, St. Paul, MN, to Campbell, July 1, 1910, file 457177 part 1, box 1698, Entry 26; Acting Secretary of Commerce and Labor to Secretary of Interior, Jan. 8, 1909, file 19783/18, box 1572, Entry 26, RG 85, NAB.
21 Correspondence re Carmen Garcia (1909), file 19783/20, box 1572, Entry 26, RG 85, NAB.
22 Assistant US Attorney, Seattle, to Chief, Division of Naturalization, July 28, 1908, file 19783/13, box 1572, Entry 26, RG 85, NAB.
23 Campbell to Balliet, Aug. 6, 1908, file 19783/1-24 (19783/13), box 1572, Entry 26; Campbell to John Young, Clerk, US Supreme Court, file 19783/1-24 (19783/14), box 1572, Entry 26, RG 85; Campbell to Charles R. Beattie, July 19, 1909, file 19783/25, box 1572, Entry 26, RG 85, NAB; US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1916 (1916), p. 7.
24 Ozawa v. US, 260 US 178 (1922).
25 US Immigration and Naturalization Service, Nationality Interpretation 311.1(a) (TM Feb. 23, 1967), Operations Instructions and Interpretations (periodical).
26 US v. Thind, 261 US 204, 214-215 (1923).
27 The barred zone applied to natives of an area including, roughly, the East Indies, Western China, French Indochina, Siam, Burma, India, Bhutan, Nepal, Eastern Afghanistan, Turkestan, and the Kirghis Steppe and southeastern portion of the Arabian peninsula. Such natives were inadmissible as immigrants to the United States. Trent Doser, "Excludable Aliens," Course of Study for Members of the Service (unpublished INS training lecture), Jan. 23, 1943 (INS History Office and Library, 425 I Street NW, Room 1100, Washington, DC, 20536).
2 US v. Thind, 261 US 204, 215 (1923).
29 In the Matter of S--- (Exclusion proceedings, 56071/165), Oct. 18, 1941. 1 I&N 174.
30 US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1923 (1923), p. 11.
31 "Eligibility of Arabs to Naturalization," INS Monthly Review, 1 (October 1943): 13.
32 In re Feroz Din (27 F 2nd 568), quoted in 2 I&N 255-56.
33 Immigration Act of May 26, 1924, §13(c), 43 Stat. 153.
34 A Parsee was admitted to citizenship in 1910 (US v. Balsara, 180 F. 694), but that decision had been overturned by the Thind decision in 1923.
35 Wilbur Keblinger, US Consul, Bombay, to Secretary of State, Feb. 14, 1930, file 19783/43 part 2, box 1573, Entry 26, RG 85, NAB.
36 John K. Davis, US Consul, London, to Secretary of State, Mar. 25, 1920; Assistant Secretary of State Wilbur Carr to Secretary of Labor, Aug. 15, 1930; Assistant Secretary of Labor W. W. Husband to Secretary of State, Aug. 25, 1931, file 19783/43 part 2, box 1573, Entry 26, RG 85, NAB.
37 Jas. Sullivan to Commissioner of Naturalization, Mar. 1, 1932, and Commissioner of Naturalization to Sullivan, June 18, 1932, file 16/gen, Entry 26, RG 85, NAB; Act of March 3, 1931, §4, 46 Stat. 1511; Act of June 24, 1935, 49 Stat. 397.
38 "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.
39 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.
40 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.
41 "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.
42 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).
43 Memorandum for Dr. Hazard from Earl G. Harrison, Sept. 17, 1942; Memorandum, Hazard to Harrison, Nov. 5, 1942, file 55882/926, box 726, accession 85-58A734, RG 85, NAB.
44 Memorandum, Hazard to Harrison, Nov. 5, 1942, p. 7, 41; INS Instruction No. 177, Designation of race in immigration procedures, Nov. 8, 1943, ibid.
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.
50 Alien Registration Act of June 28, 1940, §34(a), 54 Stat. 670.
51 Memorandum re Coding "Race"-Item 5(c), Mrs. Delin to Mr. Charlesworth, Apr. 5, 1944, Alien Registration Statistics File; "Alien Registration, 1940," 11 vols. (original tables, INS History Library, Washington, DC).
52 Nationality Act of October 14, 1940, 54 Stat. 1137; Act of December 17, 1943, 57 Stat. 601; Act of July 2, 1946, 60 Stat. 416.
53 Nationality Laws of the United States. A Report . . . in Three Parts. Part 1, Proposed code with explanatory comments (1939) V-VII; Memorandum re Racial eligibility for naturalization of Maoris, L. Paul Winings to Commissioner Ugo Carusi, Apr. 27, 1945, 14, file 56013/383, box 1596, accession 85-58A734, RG 85, NAB. See also M. Smith, "The INS and the Singular Status of North American Indians."
54 "Summaries of Recent Court Decisions," INS Monthly Review, 2 (October 1944): 44.
55 Such exemptions involved Head Tax since the 1890's, Visa requirements since 1921, and travel control provisions since 1918. Memorandum re Racial eligibility for naturalization of Maoris, L. Paul Winings to Commissioner Ugo Carusi, April 27, 1945, p. 14, file 56013/383, box 1596, accession 85-58A734, RG 85, NAB.
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.
Marian L. Smith is the senior historian for the US Immigration and Naturalization Service, Washington, D.C. She writes and speaks about the history of the agency.
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