Wednesday, November 6, 2013

THE BEGINNING OF THE END: THE IMMIGRATION ACT OF 1965 AND THE EMERGENCE OF MODERN U.S./MEXICO BORDER ENFORCEMENT

Here is an introduction to an article that I am writing.  For a draft, please contact me at krjohnson@ucdavis.edu.

In the celebratory wake of the passage of the Civil Rights Act of 1964, Congress enacted the Immigration Act of 1965, Pub. L. No. 89-236, 79 Stat. 911 (codified as amended in scattered sections of 8 U.S.C.).  Consistent with the emerging popularity of the respect for civil rights of racial minorities in the United States, the 1965 Act eliminated the discriminatory national origins quotas system from the U.S. immigration laws, which Congress had passed in 1924 when xenophobic sentiment was at one of its periodic highpoints in American history.  Needless to say, the end of the quotas system represented a major – and unquestionably positive – change in the law. 

In the 1965 Act, however, Congress went considerably further than simply removing the discriminatory quotas from the immigration laws.  Affirmatively acting to eliminate racial and
other forms of bias that had been part and parcel of the American immigration laws for generations, Congress flatly prohibited a variety of impermissible considerations from influencing the U.S. government’s decisions to issue immigrant visas:  “[n]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence . . . .”  Pub L. No. 89-236, § 2(a), 79 Stat. at 911-12 (codified as amended in the INA § 202, 8 U.S.C. § 1152) (emphasis added).   This firm admonition imposes the equivalent of what might be characterized as a color-blindness-plus requirement on the U.S. government in granting visas.  

Almost reflexively characterizing the law as a welcome by-product of the civil rights movement and a flurry of civil rights laws, most observers have in unqualified terms praised the 1965 Act’s reforms
as progressive measures.  The changes unquestionably benefited large numbers of prospective immigrants from Asia, who since the late nineteenth century had been denied lawful admission into the United States through the operation of the discriminatory quotas system combined with an insidious web of “Chinese exclusion laws,” born out of racial animosity toward Chinese immigrants. 

Over time, Congress had expanded the various exclusions directed at the Chinese to greatly restrict immigration not just from China but from all of Asia, thus making them most appropriately termed “Asian exclusion laws.” As racial sensibilities slowly but surely changed over the course of the twentieth century, the discriminatory quotas system had become increasingly difficult to defend domestically and internationally.  Criticism, including from such prominent political leaders as President Harry Truman and Senator (and later President) John F. Kennedy, grew over time as it became more difficult to square the systemic discrimination of the quotas system with the burgeoning American ideal of non-discrimination.  The blatant discrimination in the immigration laws became nothing less than a foreign policy  embarrassment that seriously handicapped the U.S. government in its ongoing efforts during the Cold War to bring hearts and minds the world over to side with the American way of life. 

Despite the anti-discriminatory improvements to the American immigration laws, the Immigration Act of 1965 also made less well-known changes to the law that are unworthy of celebration and in
fact demand outright condemnation from the very same civil rights advocates who praise the law.  Those changes, in fact, are wholly inconsistent with the extension of civil rights to minorities in the
United States. 

Specifically, the 1965 Act added a new, although considerably less visible and more sophisticated form of racial discrimination than the national origins quotas system; to the modern American immigration laws.  Rather than reluctant (or perhaps unintentional) racial discrimination, Congress enthusiastically backed those reforms with a fervent and express desire to restrict the number of Latina/o immigrants coming to the United States.  Indeed, Congress collectively expressed the fear that, unless the nation took bold new restrictive steps in the Immigration Act of 1965, Latina/o immigrants would overrun, and possibly even destroy, American society.   

Seeking to fill a serious gap in the scholarly literature, this chapter examines what can best be described as the anti-Latina/o underside of the Immigration Act of 1965.  In doing so, it places into question the heretofore largely unchallenged myth that the 1965 Act represents one of the sterling achievements of the much-heralded civil rights movement, marking a positive reform of U.S. immigration law by bringing racial neutrality to immigrant admissions. 

The truth of the matter is that, despite its decidedly pro-civil rights reputation, the Immigration Act of 1965 represents one of the first major changes to the immigration laws in American history that
demonstrates an unmistakable intent to place a firm ceiling on immigration from Mexico, as well as all of Latin America, to the United States.  In so doing, the law established a sturdy foundation from which the modern American immigration  enforcement state has developed, with its glaringly disparate racial impacts on Latina/os that have been achieved through seemingly objective, facially neutral (i.e., color blind), and ostensibly fair means. 

Besides establishing the foundational precedent for subsequent measures stringently limiting Latina/o immigration to the United States, the Immigration Act of 1965 set the stage for the creation and implementation of a wave of restrictive U.S. immigration laws and enforcement measures directed at Latina/os that remained in place for the rest of the twentieth century.  Indeed, those measures have been expanded dramatically in the early years of the new millennium and have resulted in record numbers of removals of immigrants from the United States – now running at roughly 400,000 a year – and, not coincidentally, record numbers of removals of Latina/os. 

In the five decades following passage of the 1965 legislation, U.S. immigration law and its enforcement have slowly but surely built on the anti-Latina/o foundations of the law.  Over time, American immigration enforcement has increasingly focused – some would claim almost exclusively – on limiting migration from Mexico to the United States.  The transformation of immigration law has been so complete that many Americans today believe that curbing Mexican immigration is what border enforcement should be all about.  Some informed observers, including many critics, would lament that it in fact is. 

The chapter explains how the implementation of the Immigration Act of 1965 contributed to the subsequent growth of a series of interlocking laws and enforcement programs primarily
targeting Latina/os, which, at the dawn of the new millennium, dominated modern American immigration law and enforcement.  One might claim that the United States replaced the Chinese exclusion laws of the 1800s with something akin to the Mexican exclusion laws of the new millennium.  The legacy of the 1965 Act can be summarized as follows.

By re-allocating opportunities for lawful immigration from the Americas to Asia – and diminishing legal discrimination against Asians while expanding discrimination against Latina/os, the Immigration Act of 1965 inexorably transformed the relative mix of Asian and Latina/o immigrants legally coming to the United States.  The Act, on the one hand, contributed to a substantial increase in immigration from Asia, which historically had been stunted by discriminatory laws as well as long travel distances.  On the other hand, the legislation simultaneously spurred the growth of a large population of Mexican immigrants unauthorized by the U.S. immigration laws from being in, and subject to removal from, the country.  These two dominant trends in immigration to the United States contributed to noticeable changes in the racial demographics of American society in the post-1965 period as well as the public’s view of immigration. 

Changes to the racial composition of the overall population, in turn, helped to provoke the public’s occasionally venomous responses to immigrants and frequent demands for reform of the immigration laws.  The new racial demographics of modern immigration also fueled the demands for a variety of reforms to the U.S. immigration laws that were designed in no small part to change – some observers might claim to consciously “whiten” – the flow of immigrants to the United States.  One well-known example is the “diversity” visa program that Congress added to the immigration laws in 1990, which was at its core designed to facilitate greater migration to the United States from Europe.  In the end, those legal maneuvers greatly reduced legal immigration from Mexico to the United States.

KJ

 

http://lawprofessors.typepad.com/immigration/2013/11/the-beginning-of-the-end-the-immigration-act-of-1965-and-the-emergence-of-modern-usmexico-border-enforcement.html

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