A Well-Founded Fear

The Congressional Battle to Save Political Asylum in America

Philip G. Schrag

• Publisher: Routledge
• Year: 2002
• ISBN:
  9781135962449
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In 1996, powerful anti-immigrant forces in Newt Gingrich's 104th Congress worked hard to pass the most restrictive immigration law in decades. The new law has changed virtually every aspect of immigration policy, including the rules for political and religious refugees. However, the law is not as harsh as the chairmen of the immigration committees would have wanted. A fascinating case story of the legislative process and the author's experiences as a public interest lobbyist, A Well-Founded Fear tells how a coalition of human rights and refugee organizations fought to preserve the rights of refugees and asylum seekers. A vital contribution to the relation between human rights and immigration policy Nationally known author

Part I The Opening Salvo

1 From Plymouth Rock to Kennebunkport: 1620–1992

Since its very beginnings, America has been a refuge for the persecuted—a “city on the hill” beckoning the victims of political, religious, ethnic, and other forms of repression. That tradition continues to this day.

—U.S. Commission on Immigration Reform (1997)¹

In 1995, certain powerful members of Congress mounted a strong campaign to restrict immigration generally; they also sought to make it more difficult for refugees to seek asylum in the United States. These efforts were not unique to the 104th Congress. For much of American history, with the exception of a brief, remarkable thaw from 1965 to 1990, lawmakers imposed ever-increasing limitations on immigration into the United States. Some of the restrictions, particularly those in effect during the 1930s, had a devastating effect on people who had been forced by the threat of persecution to flee their native lands.

Every American schoolchild learns that some of our most famous founding fathers were refugees seeking religious and political freedom. The Pilgrims who landed at Plymouth Rock in 1620 were members of a sect that had separated itself from the Anglican church. Threatened with arrest because of their supposedly radical views, they emigrated to Holland and then to Massachusetts.² Between 1629 and 1642, twenty thousand Puritans, members of religious groups prosecuted and occasionally imprisoned in England for their doctrinal and liturgical deviation from the Anglican Church, also emigrated to Massachusetts, and a still larger number went to the southern colonies.³

Other colonies also received what we now think of as religious and political refugees. The first Lord Baltimore, a Catholic, actively promoted Maryland as a safe haven for Catholics because they could not freely practice their religion in Protestant England.⁴ In the 1650s, Sephardic Jews, whose ancestors had settled in Dutch-controlled areas of Brazil after having been expelled from Spain, were forced to flee when the Dutch lost control of the territory. They helped to settle Dutch New Amsterdam, now known as New York.⁵ In 1688, Protestant Huguenots, fleeing after Louis XIV revoked the Edict of Nantes, arrived in the Western Hemisphere. Many settled in South Carolina, and others founded what is now New Rochelle, New York.⁶William Penn established the colony of Pennsylvania in part to create a refuge for Quakers.⁷ During the fifty years before the American Revolution, approximately two hundred thousand Presbyterian Scots and Irish sought protection in the colonies from British persecution in their homeland.⁸ During the same period, successive groups of German religious minorities, including Mennonites, Moravians, Schwenkfelders, and Inspirationalists, also sought freedom from religious persecution in the American colonies, particularly in Pennsylvania.⁹ In the 1760s, after the British arrested large numbers of Nova Scotian Acadians of French descent, destroyed their homes, and declared the men “enemies of the state,”many Nova Scotians fled to what is now Louisiana.¹⁰

After independence, refugees were a small but steady part of an everexpanding stream of emigrants to the United States, drawn by seemingly limitless economic opportunity as well as by political and religious liberty. Royalist refugees from the French Revolution built a settlement in Pennsylvania that they called Asylum.¹¹ Norwegian Quakers emigrated to the United States in 1825 to seek greater religious toleration.¹² Germans who had supported the unsuccessful revolution of 1848 fled in substantial numbers to America to avoid imprisonment and death as retribution for their political activities.¹³

For a hundred and fifty years before the American Revolution, and a hundred years thereafter, immigration—whether by refugees or anyone else—was relatively unrestricted. America needed soldiers to defend itself and laborers to develop the continent.¹⁴ During this period, Congress passed no laws imposing restrictions on immigration, leaving immigration to state regulation. Some of the states attempted to close their borders to certain kinds of immigrants that they deemed undesirable. For example, beginning in 1788 several states banned the importation of persons who had ever been convicted of a crime. In the first third of the nineteenth century, Massachusetts and New York passed laws to prevent the immigration of those likely to become paupers. And before the Civil War, several northern states (including Indiana, Oregon, and Illinois) along with many of the slave states barred immigration by free Negroes.¹⁵ But neither the states nor Congress imposed numerical restrictions on immigration, discriminated against people with particular religious or political beliefs, or (with the exception of the antebellum state laws preventing the immigration of free Negroes) excluded people of a particular race or nationality. For a long time after independence, despite a few organized efforts to prevent European Catholics from immigrating into the United States, most people who sought a better life in the United States, including those who were fleeing oppressive governments, were welcomed into our constantly expanding nation. ¹⁶

Then, in the late nineteenth century, as it has so many times since then, California began to lead the country in a different direction.¹⁷ Chinese immigrants began to arrive in California shortly after the 1849 Gold Rush.¹⁸ Many more came to work on the transcontinental railroad. They were welcomed by the railroad and mining companies, which urgently needed laborers, but they were attacked verbally and physically by organized groups of whites, some of whom resented their competition for employment. They were specially taxed and kept out of public schools.When a severe depression hit California in the 1870s, anti-Chinese sentiment and activities increased markedly. California’s politicians, including those in Congress, and Stephen J. Field, a particularly influential Supreme Court justice from California who had presidential ambitions, pressed repeatedly and successfully for a new treaty to restrict Chinese immigration and for limits on the rights of Chinese people already resident in the United States.¹⁹

In 1882, the California delegation persuaded Congress to exercise the power granted by the new treaty. Congress passed the Chinese Exclusion Act, barring Chinese laborers, including skilled workers, from immigrating for ten years, but permitting those already here to remain, leave, and return.²⁰ Within a few years, Congress made the bar on Chinese immigration permanent, and it repealed the exception for those who had already immigrated but wanted to leave and return.²¹ One particular Chinese immigrant was barred from landing even though he had been en route home to San Francisco when the “leave and return” provision was repealed. He challenged the constitutionality of the law. In an opinion written by Stephen J. Field, the justice who nine years earlier had been a leading advocate of restricting Chinese immigration, the Supreme Court upheld the law. The Court reasoned that if “the government … considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.” The Court ruled that although the Constitution did not explicitly vest Congress with the power to regulate immigration, such power was an inherent “incident of sovereignty.”²² The Court therefore established that Congress could control immigration and exclude immigrants, a “plenary power” it has exercised ever since. A corollary of this much-criticized “plenary power” rule is that aliens who arrive at the border or land at American airports seeking permission to enter the country do not have the same right to fair procedure, deriving from the due process clause of the Constitution, that citizens and lawfully admitted aliens enjoy.²³ If Congress chooses to create procedures through which the government treats some of these aliens unfairly, while determining whether to admit them, the courts have little if any power to intervene.

Two years after the Court’s decision, Congress embraced its invitation to exercise federal control over immigration. It created the position of superintendent of immigration, left intact the ban on Chinese immigration, and imposed a new ban on immigration by persons “likely to become a public charge.”²⁴ At just about this time, America began a period of rapid industrial growth, requiring immense amounts of labor. In response to the availability of relatively high wages, immigration from Europe began to soar. Competition among the steamship companies reduced the cost of transoceanic travel to less than fifteen dollars, the average wage for just a month’s work,²⁵ and from the 1880s to 1920, approximately twenty-four million people came to the United States.²⁶ Halfway through this period, Emma Lazarus’s famous poem inviting the world to “give me your tired, your poor, Your huddled masses yearning to breathe free” was attached to the base of the Statue of Liberty, which had been dedicated in New York harbor in 1886.²⁷

But just as the West had reacted against the immigration of the Chinese, and shortly afterward, the Japanese,²⁸ many people in the rest of the country resisted the rapid influx of new Americans from southern and eastern Europe, many of whom were Catholic, and two and a half million of whom were Jewish. Nativist groups and labor organizations, including the American Federation of Labor, demanded an end to European as well as Asian immigration.²⁹

Patriotism and anti-German sentiment produced by World War I fanned the flames. The Immigration Act of 1917 included a literacy test for new immigrants and created a “Asiatic barred zone” (including India and Southeast Asia) from which all immigration was banned.³⁰When the wartime economic boom ended, demands for further immigration restrictions swelled. These calls were reinforced by experts in “eugenics” such as Dr. Harry H. Laughlin of the Carnegie Institution of Washington and the Eugenics Research Association, who advocated the “selection of immigrants on the basis of biological fitness”³¹ and who complained that without eugenic screening we “were getting too many immigrants of unassimilable races, but especially too many individuals, regardless of race, who lacked inborn the intellectual and spiritual qualities of the founders of the Nation.”³² Proposals to suspend immigration altogether were scrapped in favor of the Quota Act of 1921. Under this law, annual immigration of Europeans of any particular nationality was limited to 3 percent of the number of foreign-born Americans of that national origin as reflected in the 1910 census, and only 1 percent of the entire immigration quota could be filled by non-Europeans.³³ Immediately, the proportion of immigrants from southern and eastern Europe was halved, while the percentage of immigrants from northern and western Europe more than doubled.³⁴

But this legislation, designed to be temporary, did not sufficiently settle the problem for many Americans who, like Calvin Coolidge, believed that “America must be kept American” and that “biological laws tell us that certain divergent people will not mix or blend.”³⁵ In 1924, Congress made the quota system permanent, but it changed the formula so that it would even more greatly favor immigrants of English stock. The 1924 legislation reduced the quota to 2 percent, and it temporarily based each nationality’s allocation on the 1890 census, rather than the 1910 census, to reflect better the period before massive immigration from central and southern Europe had occurred.³⁶ Although after 1929 the 1920 census was used as a baseline, the basis for calculating the quota was changed from the number of “foreign born” people of a given nationality already in the United States to the number of people of each “national stock,” thereby including native-born Americans of British and German ancestry in the count for the British and German quotas.³⁷ Italians now had a quota of less than 6,000, though Italian immigration had exceeded 150,000 in the years before 1920.³⁸ For the first time, Japanese people were formally excluded by law.

Events of the years before, during, and immediately after World War I produced the economic boom and bust that eventually influenced national immigration laws. The political and military conflicts of that period also created a large number of Armenian and Russian “refugees,” people who seemed different from most other European immigrants of the preceding century because they were fleeing from war and persecution.³⁹ As a result, governments began to perceive refugees as a category of would-be immigrants needing distinct humanitarian treatment,⁴⁰ and the League of Nations created a legal definition of the term “refugees.”⁴¹ But despite intense awareness in Europe of a postwar “refugee” problem, the new American quota laws made no exceptions for would-be immigrants who had been forced to flee their countries.

Over a period of about five years in the late 1920s, Congress and the American bureaucracy refined the quota system, perfected the implementing procedures, and developed one more restrictionist wrinkle. Even if they fit within the quotas, people “likely to become a public charge” were barred from immigrating. This “LPC” provision had been law since 1891, but it had been interpreted to preclude only those who lacked the physical or mental skills needed to hold a job. In 1930, President Herbert Hoover re-interpreted the clause to bar those who, as a result of current market conditions, were unlikely to obtain employment.⁴² This new policy gave American consular officers, to whom would-be quota immigrants had to apply for visas, a vast discretionary or judgmental power over which people from a particular country would fill the quota, or whether it would be filled at all.

It is one of the great, sad ironies of history that in the early 1930s, just as all the American restrictionist machinery was finally in place, Adolf Hitler became chancellor of Germany and began to persecute the Jews, first in his own country, and then in the countries that, by negotiation or war, fell under his domination. Because so many Americans were of German ancestry, Jews trying to escape from Hitler’s Germany might have been able to emigrate to the United States, within the German quota. But the Great Depression had begun. Many Americans believed that more immigration would mean even fewer jobs for those already in residence. Others believed in a eugenic anti-Semitism. There was little public sentiment in America for the easing of immigration restrictions as a result of Hitler’s deeds, and much organized agitation to maintain the barriers preventing Jewish refugees from resettling in the United States.⁴³ In 1938, public opinion polls found that 60 percent of Americans objected to the presence of Jews in America, 20 percent wanted to drive Jews out of the country, and only a third would oppose an American anti-Jewish campaign.⁴⁴ State Department officials, some of them personally anti-Semitic,⁴⁵ passed word to the consular officials in Europe that they should use delay, and the discretion afforded them by the LPC clause, to refuse visas to Jews trying to flee from Hitler’s repression. George Messersmith, the American consul general in Berlin, who was not strongly anti-Semitic but reflected the “bureaucratic indifference to moral or humanitarian concerns” that was widespread within the State Department and the nation as a whole, wrote his superiors in Washington that the purpose of granting visas “is not, as some interpret it, to maintain the United States as an asylum or refuge for dissatisfied and oppressed people in other parts of the world irrespective of their capacity to become good and selfsupporting citizens of our country.”⁴⁶

The United States did admit about a quarter of a million European refug...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Introduction
• Prologue
• Part I The Opening Salvo
• Part II The Heat of Battle
• Part III Parting Shots
• Epilogue
• Glossary
• Appendix A Progress of the Immigration Bills Through the 104th Congress
• Appendix B The Committee to Preserve Asylum’S First Mailing to Senators: (Case Studies Omitted)
• Appendix C Senate Judiciary Committee, 104th Congress
• Appendix D Talking Points for the Leahy Amendment: (April 1996)
• Appendix E The Leahy-Dewine “Dear Colleague” Letter: Urging a Vote for the Leahy Amendment
• Appendix F The Vote on the Leahy Amendment: May 1, 1996
• Notes
• About The Author