Probationary Americans

Contemporary Immigration Policies and the Shaping of Asian American Communities

John SW Park, Edward JW Park

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136075865
• Edition: 1
• Topic: History
• Subtopic: North American History
• Index: History

Probationary Americans examines contemporary immigration rules and how they affect the make-up of immigrant communities. The authors' key argument is that immigration policies place race and class as important criteria for gaining entry to the United States, and in doing so, alter the makeup of America's immigrant communities.

CHAPTER 1

The Next American Nation

We live in an age of mass migration that is unparalleled in American history. During the last great wave of migration, between 1880 and 1920, about 24 million persons arrived in the United States as immigrants, the vast majority from various parts of Europe. The new wave of migration is no less impressive, perhaps even more so if contemporary trends remain steady. Since 1970, over 21 million persons have settled in the United States as permanent residents, mostly from Mexico, Central America, and Asia. If this decade produces even half the number of immigrants as the last, then the forty years from 1970 to 2010 will have produced the most immigrants to the United States ever. We may not even need the next six years to reach this goal—if one factors in undocumented migrants who have no intention of leaving, then we have most likely exceeded 25 million new immigrants permanently residing in the United States since 1970.

In the past two decades, scholars and public officials have differed widely over whether this current trend is a catastrophe or a blessing, not unlike the generation of scholars and public officials who witnessed the last great wave of migration. In response to the common perception that that migration was indeed a catastrophe, Congress passed a series of rules in the 1910s and 1920s that severely limited migration to the United States for about forty-five years. It was the “tribal twenties,” according to the eminent historian John Higham, a time when President Calvin Coolidge said that “America should be kept for the Americans,” and everyone knew what he had meant. Politicians complained regularly about “indigestible race,” “degenerates,” and “aliens ineligible for citizenship.” Newspapers and politicians referred to immigrants in less charitable terms. Nationally, of course, the trend toward such incivility to immigrants dated to the time of the Chinese Exclusion Act in 1882, when prominent federal judges referred to Asian immigrants as “vast hordes” for whom “[restricting] further immigration was felt to be necessary to prevent the degradation of white labor, and to preserve to ourselves the inestimable benefits of our Christian civilization.”¹

In our own day, political commentators and polemicists have attacked the latest and largest waves of immigrants in books with alarming titles like Alien Nation, Invasion, Mexifornia, and The Death of the West. Lately, even liberals writing about immigration and “multiculturalism” use similarly disconcerting titles: the former Democratic governor of Colorado, Richard Lamm, entitled his book, The Immigration Time Bomb. Arthur Schlesinger, the noted historian and former special advisor to President Kennedy, titled his work The Disuniting of America, and he included there prescriptive ideas about how an increasingly multicultural society needed to achieve a sense of common identity. The only other option was to perish.²

Among academics, immigration rules and patterns have inspired a wide range of scholarly contributions from every conceivable field. Economists, sociologists and anthropologists, urban studies scholars, legal scholars, political scientists, political theorists, literary theorists, and historians have all made rich contributions to our understanding of contemporary immigration.³ Many scholars talk now of “globalization,” “flexible citizenship,” or the declining significance of national boundaries, while others have pointed out—especially in light of September 11—that citizenship status and national boundaries remain central principles regulating membership and protection.

The heightened level of debate has been matched by a dizzying array of policy changes that have reflected the profound anxiety and conflict over immigration. The Immigration Act of 1965 laid the foundations for our newest wave of migration, but in the last two decades—and especially since 1990—the United States has fundamentally transformed its immigration policies. Most of these changes have been incremental, but the central task of this book is to map these changes and to present them in their entirety, to make an argument about how the principles of the landmark Immigration Act of 1965 no longer dominate American immigration law. In its place, immigration policy is now a complicated system of admissions and removal, of outright privileging of rich over poor, and of assessing in an unprecedented way various levels of “usefulness” to determine immigration status, whether for permanent residents, temporary workers, or guest workers.

In addition to regulating the numbers and types of immigrants who may come or stay, the recent policy changes have in their aggregate moved away from the more liberal principles of the Act of 1965. In one decisive shift, the Act of 1965 had provided for the first race-neutral method for selecting migrants to United States, and consequently, the vast majority of migrants here have since been from non-European countries. We argue that displeasure with the class-based and racial consequences of that reform have driven much of the current policies that embrace immigrants who are “useful,” while at the same time excluding and removing those considered “undesirables.”

Race and class dimensions characterize contemporary changes in immigration rules and policies: in light of the tremendous advances in transportation and information technology, the highly talented and affluent are now part of a dynamic transnational world characterized by a kinetic “brain circulation” across the boundaries of nation-states.⁴ On the other hand, in light of the political anger against poorer immigrants, especially those who come without inspection, nation-states like the United States are asserting new and more physical barriers, in massive coordinated efforts like “Operation Gatekeeper,” “Operation Hold the Line,” and “Operation Safeguard.” More people entered the United States as highly skilled workers in fiscal year 2001 than in any year in American history, but more people also died that year trying to enter the United States illegally than in any other year for which we have records. Those in the first category took jobs as highly paid technical workers, and most came from Asia; those in the second category were trying to find any kind of job, and most came from Mexico, Central America, and Asia. In the fiscal year 2000, the United States deported, excluded, or removed about 185,000 persons, the highest number for any fiscal year in American history.⁵ A few thousand persons facing final orders of deportation were refugees who fled Vietnam, Laos, or Cambodia as children—some as young as one year old—to be sent “back” to nations of which they have no memory. Part of the purpose of this book is to give a common context for these types of disparate trends.

THE NEW IMMIGRATION LAW

This book begins in the middle of things, with a general discussion of immigration law that examines the Immigration Act of 1990, the law that reformulated common preference categories for the selection of immigrants and provided new provisions for deportation. The Act of 1990 was both a culmination of modest, earlier reforms and a harbinger of things to come. Subsequent laws would continue to be guided by concerns about the expense of maintaining certain immigrant populations, and the perception that many immigrants were committing crimes or relying disproportionately on public assistance. The Act of 1990 also greatly expanded possibilities for employment-based migration, another trend that subsequent laws embraced in an effort to attract immigrants considered necessary for economic growth in the United States. Here and in other sections throughout the book, we pay special attention to legislative debates about immigration policy, because they best capture the spirit of the new rules, and because they provide a sense of continuity over time.⁶ Also, although the federal courts and executive officials have overruled or modified what Congress has done on occasion, most of the rules have remained as the legislators had originally intended. The federal courts, including the United States Supreme Court, have largely deferred to the will of Congress.

After 1990, Congress moved swiftly and dramatically to reduce the costs of immigration. Part II examines how the law came to treat poorer immigrants and poorer prospective immigrants much more harshly. New rules in 1996 marked distances between immigrants and citizens. These rules removed the social safety net for new immigrants, provided powerful means for deporting those who committed even minor offenses, and developed harsher methods for excluding “undesirables,” defined primarily in terms of their class position. These rules have been described as “excessive and cruel,” chiefly because they have targeted the most vulnerable immigrants. Instead of allowing for the migration of the poor, especially under family reunification provisions, the recent laws have systematically sought to exclude or remove all “persons likely to become a public charge.”

In contrast, Part III reviews a set of rules that have provided an even greater expansion of employment-based migration than the Act of 1990. New legislation passed in 1998 and 2000 account for fundamental changes in employment-based migration. Under these laws, more skilled workers have entered the United States than ever before in American history. The vast majority of these persons were admitted as “non-immigrants,” persons who in theory are supposed to stay temporarily in areas of the economy that desperately needed them. Yet this set of rules outlines a new regime of immigration that provides a much easier path toward permanent residency and American citizenship for the highly skilled, while providing the federal government a built-in flexibility moderating the entry of these workers.

Taken together, these differing trends in immigration law and policy are a striking reminder of how laws governing migration can powerfully reconfigure economy and society in the United States. They are also poised to reconfigure American race relations, particularly as the very position of Asian Americans in the American racial hierarchy is changing under the new rules. A recurring argument throughout this book is that American policymakers—through separate pieces of legislation in 1990, 1996, 1998, and 2000—have fundamentally altered the system of preferences and exclusions in the immigration law in a way likely to re-shape Asian American communities. In its totality, the law raises disturbing questions about the future of interracial relationships, labor, and citizenship in the United States. The current trajectory of Asian migration should give all of us pause, to think carefully about the kind of society and the set of social and political values that define this nation in the early 21st century.

PART I

Law

CHAPTER 2

Governing Admission to the United States: Basic Themes

IMMIGRATION LAW AS SOCIAL POLICY: SHAPING ECONOMY AND CULTURE

Immigration law in the United States has been shaped by much larger concerns about the type of political community that majorities of Americans have wanted. Immigration rules thus tell us a great deal about the various kinds of Utopian visions that American policy makers and voters have shared, both morally and politically. For example, immigration rules have long reserved important economic opportunities for American citizens first and, to the extent that immigrants encroach upon those opportunities, American citizens have demanded restrictive rules. For an extensive period of time, between 1882 and 1965, immigration rules also restricted Asians and other “undesirable races,” on the theory that such persons could never assimilate into, or be acceptable within, mainstream American society. In these ways, immigration law has always served as an important set of social policies that described what the United States should look like as a nation-state—free from persons who were economically or culturally threatening, attractive to those who contribute positively, and always mindful of protecting the interests of American citizens first.

Several legal scholars have noted that American immigration law began in colonial times before the United States was a nation-state, when local authorities passed rules intended to stimulate desirable immigrants while, at the same time, excluding undesirables. Colonies, and then the states, attempted to control migration, promising land and tax benefits on the one hand, while passing outright bans on the entry of “convicts,” “paupers,” or “persons with loathsome diseases” on the other. In the Declaration of Independence, for example, Thomas Jefferson complained that George III “has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.” The American colonists had wanted the freedom to allow European migrants to establish even more settlements, and they accused the King of taking sides with the “merciless Indian savages” whose lands they coveted.¹

Once the colonies became an independent nation, issues of migration arose immediately and contentiously over slavery. Allowing for the traffic of slaves, and yet hoping it would not last forever, the delegates wrote a tortured sentence to settle a compromise within the constitution itself: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” As Kenneth Stampp has noted, the slave states wanted the migration of slaves, of course, but no one ever wanted them as citizens, so the compromise reflected a deep-rooted desire—even in the South—to keep Africans out of the United States, and to maintain a racial balance of whites over blacks.² The Naturalization Act of 1790 restricted naturalized citizenship to “free white persons only,” a principle in law that would last until 1952.

The legal historian Gerald Neuman has argued that most scholars of immigration tended not to pay attention to the state and sometimes federal immigration rules passed from 1776 to 1882, part of what he calls the “lost century” of immigration law. States did exclude—“convicts,” “paupers,” “persons with contagious diseases,” and free blacks—and the federal government passed ideological restrictions through the Alien and Sedition Acts of 1798. After the discovery of Denmark Vesey’s conspiracy in 1822, South Carolina required sailors of African descent to remain in jail until their ships disembarked, for example, and the federal government began registering all immigrants in the wake of the French Revolution in an effort to discover and to deport alien radicals.³

But the most restrictive pieces of immigration law were passed in the late 19th and early 20th centuries, after a wave of Asian immigrants and then an even greater wave of European peasants and displaced persons settled in major industrial centers. Excellent scholarly monographs by Ronald Takaki, Charles McClain, Sucheng Chan, Lucy Salyer, Andrew Gyory, Robert Lee, and Erika Lee, just to name a few, have given us detailed accounts of the legal, social, and political forces arrayed against Chinese immigration in the late 19th century, culminating in the Chinese Exclusion Act of 1882.⁴ This rule was a landmark in American law—the first immigration law that excluded a group of migrants solely on racial criteria. About forty years after this law, however, the Immigration Act of 1924 virtually suspended immigration altogether, further establishing a National Origins System that would persist for the next forty years. The late historian John Higham provided the seminal historical work that covers the period leading to the nativist 1920s, when political leaders in the United States began “closing the gates” to all newcomers, whether from Asia or from Europe.⁵

Between 1882 and 1924, immigration policy in the United States was once again forged from a complex set of political forces, ranging from concerns about the economic position of poor working-class whites to racist, nativist disdain for “unassimilable” peoples. Often, these forces were intertwined, as racist labor unions—rallying for the protection of working-class whites—frequently accused white capitalists of placing their economic interests over the national interests, and going so far as to pollute the United States with barbarian laborers willing to “under-live” whites in the labor market. Hundreds of American workers detested men like Leland Stanford, whom they perceived as selfish industrialists who hired cheap foreign labor. Stanford had once advocated unrestricted immigration, but his political opponents, men like Denis Kearney, the leader of the Workingman’s Party in the late 19th century, said that American entrepreneurs ought to forgo higher profits in favor of giv...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Acknowledgments
• Contents
• List of Tables
• Chapter 1 The Next American Nation
• Part I Law
• Part II The Unwanted
• Part III The Highly Skilled
• Endnotes
• Index