The Civil Rights Origins of Illegal Immigration

The Civil Rights Origins of Illegal Immigration
MaeM. Ngai
Columbia University
The present immigration system is based on a core paradox. The method of allocating
visas for the admission of permanent residents is based on principles of equality and
fairness because all countries have the same quota. Yet visa demand varies widely. The
principle of formal equality has disparate effects, being inclusionary for some and
exclusionary for others. Four countries persistently max out on their caps-China,
India, Mexico, and the Philippines-leading to long waits, easily ten to twenty years or
more, and hence pressures for unlawful entry. The system generates an ever-larger
caste-population of unauthorized immigrants.
The discussion of immigration reform in the United States since the 1980s has
revolved around three main policy concerns: legalization, enforcement, and
temporary workers-all aimed at grappling with the problem of unauthorized
migration that has burgeoned since 1970. It is now estimated that twelve
million people in the United States, one-third of the total foreign-born population, lack legal status.1 Proponents of immigration reform advocate a “comprehensive” approach that aims to resolve the problems caused by previous
unauthorized entries and to deter future ones; this is also seen as a compromise
between liberal and conservative interests (legalization versus enforcement).
The proposal for guest or temporary workers does not cut across traditional
party lines and is highly controversial, yet it is also the only proposal for addressing the demand for unskilled labor.
The current approach to reform reflects present US political alignments
and predicaments, but I want to suggest that it does not address basic design
flaws in the US immigration system and therefore is unlikely to resolve the
problem. The debate over legalization versus enforcement also fuels an incendiary political discourse and leads to political deadlock. We need to go back to the
basics, rethink the premises of US immigration policy, and think outside the box
about other kinds of policy options. This will not be easy, but it is necessary if we
are to achieve reform that is truly comprehensive and fair.
The problem of our present system is that it is based on a core paradox: Our
system of allocating visas for the admission of permanent residents-the
vaunted green card-is based on principles of equality and fairness, yet that
very system has generated an ever-larger caste-population of unauthorized
I want to first explain briefly how this paradox operates and then talk about
its history and how thinking about history might offer a way forward. The
current system, enacted by the 1965 Hart-Celler Act, provides for a global
International Labor and Working-Class History
No. 78, Fall 2010, pp. 93-99
© International Labor and Working-Class History, Inc., 2010
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94 ILWCH, 78, Fall 2010
ceiling on annual immigration, with visas distributed according to seven preference categories (based on family relations and employment), and with every
country having the same maximum number of visas per year. In 1965 the
global ceiling was 290,000, and the country cap was 20,000 (phased in for the
Western Hemisphere by 1976). Today the global ceiling is 226,000 for family categories and 140,000 for employment-based visas, and the country limit, seven
percent of the total, is 25,620. (Family-based immigration is actually higher
because immediate relatives-spouses, children, and parents of US citizensare not subject to numerical limitations.)
This system was deemed to be equitable and fair because it treats all
countries the same, subjecting all to the same quotas and preferences. In practice, however, visa demand varies widely against an unchanging supply. Four
countries persistently max out on their caps: China, India, Mexico, and the
Philippines. When people say “you should get in line and wait for your visa,”
they do not understand that the wait can easily be twenty years or more.
To illustrate, let us look briefly at one category, First Preference ( unmarried
adult sons and daughters of US citizens). For countries other than the four mentioned, the visa backlog is six years: In November 2009 the State Department
was processing visas for people who applied for admission in October 2003.
But for Mexico, the cutoff date was July 1, 1992, meaning these prospective
immigrants have waited sixteen and a half years to get to the front of the line.
For Fourth Preference ( adult siblings of US citizens) from the Philippines, the
visa backlog is almost twenty-three years (cutoff date as of November 2009
was January 15, 1987).2
But it is actually more complicated. What about a person in Mexico who
applied for a First Preference visa in 1995-how long is her wait? She has
already waited fourteen years, and it would appear that she has to wait three
more (1995-1992), for a total of seventeen years. But that would only be the
case if the cutoff date advanced in real time. In fact, it does not. In November
2002 the cutoff date was November 1991. In the seven years since, the cutoff
date advanced only eight months.3 That is a rate of advance of 1.14 months
per year, and at that rate, the person who applied in 1995 will have to wait
31.5 more years, in addition to the fourteen years she has already waited.
Extending this logic ad absurdum, we could state that at the current rate of
advance, someone who applied for a visa in 2009 faces a potential wait of
173.25 years (16.5 x 10.5).
Of course, we do not know what cutoff date the State Department will set
in the months and years to come. In practice, it has moved the date forward by a
week or a month; sometimes it stays the same for months on end; sometimes it is
even set back. For purposes of this exercise we can only use the current rate of
advance, which I determined for the last seven years from the data available
online. The point is that prospective immigrants from each of these four
countries understand that waiting patiently in line likely means waiting
twenty, thirty years, even a lifetime. For immediate family members of legal permanent residents, the wait is six years from Mexico an
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The Civil Rights Origins of Illegal Immigration 95
countries-not as long as the other categories, but because this category pertains
to spouses and minor children, a five-year separation is a great hardship and particularly damaging for children. It is no wonder that many choose to risk entering surreptitiously, or with faked claims or identities, or by overstaying on
nonimmigrant visas.
We rarely, if ever, question the principle embedded in Hart-Celler that we
should treat every country the same. It is based on a logic of equality and fairness and was meant to replace the patently inequitable and discriminatory
system of national origin and racial quotas that had governed immigration
policy since the 1920s.4 It was also very much in line with the outlook of the
civil rights era. That was the ethos of the time-Hart-Celler is often recalled
as being of a piece with the Civil Rights Act of 1964 and the Voting Rights
Act of 1965. It was also the self-conscious strategy of immigration reformers
in the 1950s and early 1960s who decried the national origins quota system
for its discrimination against eastern and southern Europeans. Harvard historian Oscar Handlin, an advisor to Senator Herbert Lehman on immigration
reform during the 1950s, placed the question squarely in these terms. The
quota system, he wrote,
cast[s] the slur of inferiority [upon] … the grandfathers of millions of Poles and
Italians and Jews, and of hundreds of thousands of others who, by their contributions to American life, have earned the right to be counted the equals of the descendants of the Pilgrims … The Italian American has the right to be heard …
precisely as an Italian American. The quotas implicitly pass a judgment upon
his own place in the United States.5
Throughout the immigration debates of the late 1950s and early 1960s, reformers emphasized the symbolic nature of reform. The national origin quotas
were a vestige of racism; a “slur” against American Jews, Italians, and Poles,
and only secondarily a matter of actual immigration, since European immigration had steadily declined after the Second World War. For Handlin and
Lehman and others, the equal participation of Euro-American ethnics in politics
was the goal. They were not, at the time, thinking much about Asians or Latinos.
Immigration policy for Asians was considered in terms of cold war foreign policy
(the quota system was, Handlin said, “offensive to our allies and potential allies
throughout the world”); Latinos were not seen as immigrants who crossed an
ocean to settle permanently but as hemispheric neighbors who cycled in and
out of the Southwest with each harvest season. Until the very last moment of
negotiations over Hart-Celler, immigration reformers upheld continuing the
policy of exempting the Western Hemisphere countries from numerical limits;
the exemption had been in place ever since the 1920s, when numerical limits
were first imposed.
To policymakers in the 1960s, the symbolic nature ofreform easily led to a
structure that was also heavily symbolic: Treat all countries the same. This was
the logic of formal equality, which paid no heed t
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96 ILWCH, 78,Fall2010
inequalities in the world’s distribution of wealth and population and the actual
requirements of fairness. But we might ask why, indeed, should New Zealand
and Belgium have the same limits as Mexico and India?
The argument for equal rights in immigration policy, however, is a muddle.
The rights-bearing subject is at once the American citizen; the countries of the
world; and (possibly) the prospective migrant. Each set of rights derives a different epistemology: the civil rights of the American citizen; the right of nations to
self-determination and equal standing in the world community; and the human
rights of the individual migrant without regard to state membership. In the
immigration reform discourse and legislation of the time, the first two principles
were conflated at the cost of the third.
In 1963 Senator Philip Hart of Michigan introduced the immigration
reform bill that would finally be enacted in 1965, bearing his name along with
that of Emanuel Celler, New York City’s longtime champion of immigrants.
Hart did so at the behest of the Kennedy administration. In fact, Hart had,
since 1961, introduced legislation of a very different nature, bills that had
broad support but were ultimately swept aside by the administration’s bills. In
Hart’s original bills, a total annual ceiling was set at 250,000 but, following tradition, exempting from the limit the countries of the Western Hemisphere. Of
that 250,000, he allocated twenty percent for refugees and the balance to
countries in proportion to the size of their population (thirty-two percent)
and in proportion to their previous emigration to the United States (forty-eight
percent). Under his plan, the only country that would have received a smaller
quota than under the national origins system was Great Britain.
I call attention to Hart’s bill not because I think we should imitate it but to
make the point that there are other methods of allocating green cards. What is
most noteworthy about Hart’s proposal, in my view, is that it did not consider
the United States’ national interest in zero-sum opposition to the interests of
other countries. It took into account a variety of factors-human rights, the
needs of sending countries, historical regional ties in the Americas, and
American citizens’ familial ties abroad. It was thoughtful policy that tried to
balance myriad interests and needs.6
Shortly after he introduced his bill in 1963, Hart was pressured to sponsor
the Kennedy administration’s bill. The latter was less generous in important
respects: It gave only five percent to refugees and placed a uniform cap on
visas for all countries, establishing the principle of “equal treatment” that
would justify elimination of the Western Hemisphere exemption from numerical
quotas. The principle also gave the bill a simplicity that was easy to argue for
and easy to grasp under the r

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