Immigration and Nationality Act (1952)

Immigration and Nationality Act (1952)

Bo Cooper

The Immigration and Nationality Act (P.L. 82-414, 66 Stat. 163) mirrors the American public and policy attitude toward immigration; it is complex, its pieces do not always fit well with one another, and Congress tinkers with it endlessly. Even immigration experts are hard pressed to master it, and most affected by its provisions find it a difficult riddle. Executive branch agencies administering it have never approached full success, and courts interpreting it commonly reach dramatically different conclusions from one another. For all of its faults, though, the Immigration and Nationality Act provides a dense, rich record of our country's struggle to make the right decisions about who should be able to come to this country as guests and as permanent members of the American community.

The immigration debate is sparked continually by dramatic events that crowd the newspapers and television: waves of Cubans coming to the shores of Florida in the Mariel boatlift of 1981; tens of thousands of Haitians plying the straits of Florida in crowded, rickety vessels after the military overthrew Haiti's first elected president in 1991; bitter public disputes over whether visas available to foreign workers are contributing to the country's economy or displacing their American counterparts; a months-long standoff over the fate of a small Cuban boy dramatically rescued at sea on Thanksgiving Day in 1999, after a marine accident left his mother drowned; colossal backlogs of applications; and the September 11, 2001 attacks on the World Trade Center and the Pentagon, carried out by hijackers who navigated in very sophisticated ways the tangled immigration process to gain entry to this country, some of them even learning here the flying skills that equipped them to execute the attacks.

These are only modern examples of the continuing American immigration controversies. Throughout its history, the United States has struggled with its proper cultural composition, the economic benefits or losses from immigration, its role to provide refuge, and the way to administer the complex rules that have evolved.

HISTORICAL CONTEXT

No significant federal restrictions on immigration existed until the late nineteenth century. Up to that time, Congress allowed free migration into America, and the volume of that traffic was immense. About a quarter-million immigrants are believed to have entered the country between the end of the Revolutionary War and 1819. Between 1820 and 1840, just over 750,000 immigrated here, and another 4,300,000 came between 1840 and 1860. The total from 1860 to 1880—over 5,100,000—roughly equaled the entire number that had immigrated to this country previously. By far, most who immigrated before 1880 were from Great Britain, Germany, and Ireland.

Public attitudes during this period varied. Many welcomed the notion of an immigrant nation. Herman Melville romanticized this sentiment: "There is something in the contemplation of the mode in which America was settled, that ... should forever extinguish the prejudices of national dislikes. Settled by people of all nations, all nations may claim her for their own." Disquiet over the huge immigration flow, rooted partly in anti-Catholicism, was represented by Samuel Morse: "How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines, should suddenly be thrown in our society and not produce turbulence and excess? Can one throw mud into water and not disturb its clearness?" Associations and political parties, like the Know-Nothing Party, emerged, dedicated to forming immigration policy that would preserve the ethnic composition of the country.

Nevertheless, there prevailed during this time a strong sentiment toward this country as a land of freedom (despite the persistence of slavery); and perhaps an even stronger set of labor and economic needs for substantial immigration as the country pushed westward, built railroads, developed urban centers, and fueled the early stages of industrialization. Federal immigration policy continued to adhere to this idea as late as 1864, as evidenced by the Republican Party platform, to which Abraham Lincoln was a contributor: "Foreign immigration which in the past has added so much to the wealth, resources, and increase of power to this nation ... the asylum of the oppressed of all nations ... should be fostered and encouraged by a liberal and just policy."

The last two decades of the nineteenth century marked an important turn. As the rate of immigration continued to increase, its patterns changed. Immigrants came increasingly not from northern and western Europe, but from southern and eastern Europe. Public attitudes likewise began to change. While resistance to a perceived dilution in the national cultural strength had been evident throughout the country's history, it was now heightened as the religious, cultural, and physical characteristics of the changing stream of immigrants began to differ more obviously, and as their number rose further. Perhaps predictably, federal lawmaker's position on immigration changed at about this time as well.

EARLY STATUTORY EVOLUTION

The first federal statutes restricting immigration into America appeared in 1875 and 1882. The Act of 1875 barred the entry of convicts and prostitutes. The Act of 1882, the first general federal immigration statute, forbade the entry of idiots, lunatics, and paupers. In addition, the Act of 1882 imposed a head tax of fifty cents per immigrant. In 1891, Congress began work on an immigration bill that seemed specifically aimed at the "new" immigrants from southern and eastern Europe. Henry Cabot Lodge, a key voice in the debate, urged reform to "separate ... the chaff from the wheat" and to address "a decline in the quality of American citizenship." That year Congress easily passed new categories of exclusion for those bringing "loathsome or contagious diseases" or who had been convicted of "crimes involving moral turpitude," a bar to admission that, in an only slightly evolved version, remains a significant part of the law today.

Also in 1882, there appeared the first legislation limiting entry on the basis of national origin. The two prior decades had witnessed a 250 percent increase in the rate of immigration from China. This had first been welcomed to meet mining and railroad-building needs, but the completion of the cross-country railroad project and an economic decline coincided with the growth of vocal sentiment against Chinese immigration. The Chinese Exclusion Act would remain a part of U.S. law for more than sixty years.

As immigration numbers rose further in the early twentieth century, national opinion against free admission into America solidified as well. New control strategies focused on whether to impose a literacy test as a condition of admission, a measure aimed specifically at limiting immigration from southeastern Europe. Three times between 1896 and 1915, Congress passed literacy provisions that the presidents vetoed. Vetoing the 1915 bill, President Wilson decried the proposed shift away from the American tradition of asylum and broad admission of those not medically or criminally threatening to the country's well-being: "the new tests [based on literacy] are not tests of quality or of character or of personal fitness, but tests of opportunity. Those who come seeking opportunity are not to be admitted unless they have already had one of the chief of the opportunities they seek, the opportunity of education. The object of such provisions is restriction, not selection." After the United States entered World War I, Congress finally overrode a fourth presidential veto, and in 1917 a literacy requirement for immigration became U.S. law.

In 1921, Congress passed, and President Harding signed, the first legislation setting forth the notion of a national origins quota, imposing what were for the most part the first quantitative, rather than qualitative, limits. These limits, temporary in 1921, were made permanent in 1924 in the National Origins Act. This structure (which did not apply to the Western Hemisphere) was designed to preserve the racial and ethnic content of the country's population, by permitting a larger flow of immigration from those northern and western European countries already most strongly represented in the U.S. population. Between these legislative restrictions and the economic effects of the Great Depression, immigration in the 1930s fell to its lowest level in a century.

Three consequences of World War II further shaped U.S. immigration policy. First, partly as a result of wartime alliances, the Chinese Exclusion Act was repealed. Second, wartime labor needs were filled through the negotiation with Mexico of the "bracero" program, admitting large numbers of temporary Mexican workers over the next two decades. Third, the Displaced Persons Act of 1948 marked the first refugee legislation in American history, following the tragic consequences for large numbers of people refused entry into this country from Nazi Germany.

THE IMMIGRATION AND NATIONALITY ACT AND ITS CONTINUING EVOLUTION

In 1952, the passage of the Immigration and Nationality Act marked a major revision of existing law. It created a system of preferences for skilled workers and relatives of citizens and permanent residents. It also amplified security and screening requirements, consistent with the prevailing Cold War atmosphere. The 1952 Act retained, though, the national origins quota system. Congress overrode the veto of President Truman, who in his veto statement proclaimed his view that "[i]n no other realm of our national life are we so hampered and stultified by the dead hand of the past, as we are in this field of immigration."

Today's immigration law owes perhaps more to a far-reaching set of amendments in 1965 than to the 1952 law itself. In 1965, amid the American Civil Rights movement, Congress repealed the national origins quota with a regime based primarily on family reunification and skills. This regime, though substantially revised, remains today the basis of U.S. policy toward legal immigration. Eastern Hemisphere immigration would no longer be controlled through the national origins system, but according to an overall numeric limitation, a standard per-country limitation, and a seven-category preference system based principally on close family relationships and work abilities. Western Hemisphere immigration would be controlled according to an overall ceiling, without a preference system or per-country limitation. In the next decade, both hemispheres were made subject to a single overall limit and a common preference system. The sources of immigration were changing as well, principally now from Latin America and Asia rather than Europe.

From 1980 to 1990, other major revisions followed. The Refugee Act of 1980 aligned the U.S. definition of refugee—previously referring to those fleeing persecution in communist or Middle East countries—with the more neutral international definition contained in the 1952 United Nations Refugee Convention. It also created a more orderly system for the admission and integration of refugees, who have since been admitted at a rate roughly of between 50,000 and 100,000 per year. In 1986 Congress passed the Immigration Reform and Control Act, designed to deal comprehensively with the problem of illegal immigration, by (1) providing "amnesty" to large categories of aliens already in this country unlawfully, but (2) eliminating job-related incentives to come to this country illegally by creating a system of penalties for those who employ people not eligible to work.

The Immigration Act of 1990 significantly revised the system for legal immigration. This act amended the Immigration and Nationality Act by raising overall limits, significantly increasing employment-based immigration, and creating a system to admit "diversity immigrants" from underrepresented countries. The 1990 Act also made important changes to the employmentrelated "nonimmigrant" categories, under which people are admitted to the country temporarily rather than as permanent residents. Finally, the 1990 Act rewrote the grounds for excluding or deporting aliens and enacted measures to ensure more effective removal of criminal aliens.

The Immigration and Nationality Act by 1990 had taken on the basic form it has today. A preference system, based mainly on family relationships and needed job skills, provides for "immigrant" visas, or permanent residence: these are commonly known as "green cards," though they have not been actually green for some time. There is a complex set of categories for "nonimmigrant" or temporary visas, ranging from short-term admissions for those coming as tourists to years-long admissions of those in "specialty occupations" such as computer programming. There are rules governing the acquisition of citizenship at birth and through naturalization. Complex grounds are set out for the exclusion of certain categories of persons seeking admission to the country, ranging from criminals, terrorists, those lacking entry documents, and polygamists. A similar set of rules provides for the deportation of those who commit certain acts after admission, ranging from crimes to violation of the terms of their admission (like staying longer than permitted, dropping out of school, or working without permission). A complex government bureaucracy, spanning many executive branch agencies and encircling the globe, administers the system.

Yet the pattern of constant change to the statute, today hundreds of pages long, has persisted. In 1996 the most farreaching revisions in three decades focused on stricter enforcement against illegal immigration, particularly criminal aliens. In 2000 alone, Congress made changes relating to business visas, human trafficking, family-based immigration, and citizenship for children born to citizens outside the United States, and more. The September 11, 2001 terrorist attacks prompted a wholesale reevaluation of the system's security vulnerabilities. The demand for immigration to this country, both from inside and outside the United States, remains high: roughly one million people were given permanent residence in 2002, and about thirty-five million were admitted temporarily. Illegal immigration remains an issue, with the undocumented population estimated at roughly ten million. Immigration will continue to hover near the top of the national policy agenda, and the Immigration and Nationality Act will be wrung through many more changes, as the twenty-first century proceeds.

BIBLIOGRAPHY

Bennett, Marion T. American Immigration Policies: A History. Washington, DC: Public Affairs Press, 1963.

Congressional Research Service. Brief History of United States Immigration Policy. Report No. 91-141, January 25, 1991.

Mills, Nicolaus, ed. Arguing Immigration: The Debate over the Changing Face of America. New York: Simon & Schuster, 1994.

Neuman, Gerald R. "The Lost Century of Immigration Law (1776-1875)." 93 Columbia Law Review 1833 (1993).

Salyer, Lucy E. Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law. Chapel Hill: University of North Carolina Press (1995).

Select Commission on Immigration and Refugee Policy. U.S. Immigration Policy and the National Interest. Staff Report, 1981.

INTERNET RESOURCES

Library of Congress. "American Memory" <http://www.memory.loc.gov>