Friday, November 12, 2021

The Whitewashing of Immigration and Nationality Law: Why We Should All Become Historians

Guest Blogger

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021)

Maureen A. Sweeney

As the director of a law school immigration clinic, I came to Carol Nackenoff and Julie Novkov’s American by Birth: Wong Kim Ark and the Battle for Citizenship as both an immigration practitioner and a scholar. And under both these hats, I found it helpful and interesting. The book is a supremely readable account of the context, including the individual and communal lives, behind the legal decision that established the strong principle of jus solis in U.S. law, “even” for the children of Chinese immigrants.  More than the story of one Supreme Court case, though, I found it an illuminating example of what is an all-too-familiar collision in the immigration sphere between the egalitarian ideals of the American constitutional experiment and the realities of race-based power politics.  Indeed, the tug of war between universalist democratic ideals and efforts to use immigration law to preserve the supremacy of Americans of European heritage is the history of our immigration.  The Wong Kim Ark tale is a positive one – and important, as birthright citizenship has indeed proved foundational to the empowerment of successive immigrant groups in the U.S. – but the authors do not shy away from conveying the unabashedly race-based assumptions and justifications given for legislation and court rulings that contributed to that decision and to more recent discussions of birthright citizenship. 

Nackenoff and Novkov engage in a project of historical reckoning and reclamation that is precisely what our immigration and nationality law requires at this moment in time.  As a nation, we need to acknowledge that the legal house we live in was constructed of building blocks that were designed and intended to advantage and promote northern Europeans and their descendants, those Justice Field referred to repeatedly as “our people” in the Chinese Exclusion Case. The structure of the house, in other words, was designed to support white nationalism. Learning our history is the first step in the process of understanding the substance of our law, of peeling away the layers of paint and wallpaper that now cover those building blocks with a veneer of race neutrality. Educated with our history, we can learn to look beyond now-facially-neutral laws and confront the ongoing legacy of racism in our immigration legal system. And answer the question:  Can we be true to our democratic ideals by remodeling the current legal system or do we need to tear down and rebuild the whole house?

Principles of birthright citizenship came to the American colonies with the British but, as Nackenoff and Novkov so understatedly put it, “race complicated the questions” right from the beginning.  They continue to do so.  Immigration lawyers today observe the punitive weight of our dysfunctional immigration system falling disproportionately on non-white people.  We sit with Black and brown and Asian people in literal waiting rooms and in long backlogs at USCIS (which adjudicates affirmative immigration applications), in the immigration courts (which hear removal cases), and especially in ICE and border patrol detention facilities (where men, women and children of color are disproportionately locked up).  We watch as clients picked up in traffic and criminal enforcement in over-policed and over-prosecuted communities of color are fed from there into immigration enforcement – and denied bail or relief from deportation because of the simple fact of an arrest, even when it does not result in conviction. We see the way legal interpretations fail to account for the experiences of our clients of color, dismissing complex dynamics behind their migration with the easy assumption that they are simply and undeservedly trying to grab a part of the American dream that doesn’t belong to them.  We see Haitians and Cameroonians and other Black applicants and asylum seekers being treated with excessive harshness and suspicion and force.  We note how discretionary decisions about whether our clients are “credible” or whether their testimony is “plausible” or whether they represent a “danger” to the community fall notably more often in favor of white clients than those who are Black or brown. 

In short, as lawyers working in the system, we see that race continues to play a strong role in immigration in America. What are sometimes more difficult to pinpoint are the legal mechanisms by which race continues to play such a role, in an era when immigration statutes and policies have become race-neutral on their face.  We are a long way, on paper at least, from the 1790 act in which Congress authorized naturalization eligibility for “any alien” and then felt free to clarify that this meant anyone who was a “free white person.”    

History, the kind of detailed, context-rich history in American by Birth, is undoubtedly one of the keys to identifying and understanding the ongoing shape that historical building blocks give to our current immigration system and the debates around it.  This history can help us identify the pernicious cycle by which heated – and explicit – racist assumptions and rhetoric are invoked to justify legal restrictions on a certain group, after which the restrictions shape the behavior of the regulated group, after which either the resulting behavior or the original restrictions (with no mention of race) are used to justify further restrictions.  At the end of this cycle, we are left with race-neutral legal provisions that obscure the original racial intent as much as the ongoing racially disparate exclusions.

Nackenoff and Novkov give a great example of this dynamic in their description of one interplay between U.S. legal developments and the transnational lives of many Chinese men who lived and worked in the U.S. in the late nineteenth century.  In 1875, Congress passed its first legislation designed to restrict Chinese immigration, which, among other things, barred entry to “coolie” laborers and anyone suspected of being a prostitute. As inspectors subsequently assumed with little evidence that most Chinese women who attempted entry were either prostitutes or polygamous wives, the 1875 Act severely curtailed the number of Chinese women who were able to immigrate to the U.S., reducing the numbers from thousands annually to a handful.  The lack of women, in turn, made it harder for Chinese men to establish families in the U.S., so many resorted to transnational lives, traveling back and forth between their jobs in the U.S. and families that they established in China.  The fact that these men established their families abroad and immigrated without them contributed in the U.S. to the characterization of Chinese men as a “labor invasion” and “unassimilable,” which in its turn was used to justify the escalating measures of excluding and deporting long-time U.S. residents and explicitly disqualifying the Chinese from naturalization.  And in a final twist, the Johnson-Reed Act of 1924 translated this ineligibility for naturalization into a facially neutral ban on issuing visas to anyone “ineligible to citizenship” – in other words, to all Chinese and other Asian applicants.  The visa ban was race-neutral on its face and might have had a certain logic when considered out of context (unsuitability for naturalization might call into question suitability for admission), but the history exposes its roots, purpose and effect in the race-based exclusion of Asian persons.

U.S. immigration history is replete with examples of race-neutral language that masks policy passed with racial intent.  The authors mention the 1924 Act’s neutral-sounding reference to earlier census data to establish national quotas (for non-Asians), which were purposefully designed to cut off large scale recent immigration from southern and eastern Europe.  They likewise highlight the shift in the political rhetoric around family-based immigration (from “family reunification” to “chain migration” rooted by “anchor babies”) following the demographic shifts that resulted in these provisions’ failing to preserve the 1924 Act’s biases in favor of white Europeans. 

Nackenoff and Novkov’s treatment of birthright citizenship demonstrates the power of placing contemporary policy discussions in the light of unblinking historical scrutiny.  Arguments about the need for mutual and objective “social contracts” between the body politic and newcomers ring distinctly more hollow when it is clear that the system was rigged from the beginning in favor of “white persons” at the expense of persons of African, Native American, Mexican, and other nonwhite descent.  Indeed, my one complaint about the book’s presentation of arguments is that is does not give more prominence to what I find the most compelling argument for birthright citizenship in the U.S. context – that any claims to political belonging in the U.S. through citizenship must be filtered through a reckoning with our body politic as a post-settler nation that was, from its foundation, compromised in its dealings with race.  Once we acknowledge that our national territory was acquired by violently dispossessing its native peoples physically and politically, and that our foundational social contracts and legal frameworks were explicitly designed and intended to favor people considered to be “white,” we must proceed with extreme caution when we seek to define “our” people. We should stand in the face of our national history with a humility that acknowledges that, other than Native Americans, none of us “deserves” or is more “worthy” of birthright citizenship than anyone else. We are all settlers in a country that was never ours by divine right and that was built from the beginning to favor one racial group over others. While a strong policy of jus solis does not erase that history, it does provide a strong equalizing force moving forward.

Litigators have begun to use historical scholarship like Nackenoff and Novkov’s as a way of unmasking and challenging the racial structures and dog-whistles in immigration law and policy.   A federal judge in Nevada recently held that the immigration provision that criminalizes illegal reentry (8 U.S.C. §1326) violates the equal protection guarantee, relying on expert testimony from scholars Kelly Lytle Hernández and Benjamin Gonzalez-O’Brien about the historical context of the provision’s enactment and its ongoing racially disparate impacts.  In a similar way, but grounding its race-based equal protection claims in contemporary statements and justifications given by the Trump administration, the NAACP Legal Defense Fund brought a lawsuit in 2018 seeking to enjoin the administration’s attempt to revoke protections for Haitian nationals under Temporary Protected Status.  I, for one, am very excited about this complementary marriage of historical scholarship and litigation.  One fruitful area of exploration going forward will be around immigration provisions that rely on criminal arrest or prosecution to trigger immigration consequences and enforcement.  Given the vigorous work currently exposing racial inequities in the criminal legal system, I look forward to seeing further challenges to the ways those inequities are magnified in the immigration system. 

Understanding the history and the structure of the legal house we live in is important for reasons that go well beyond litigation strategy (especially as courts may become less likely to rule in favor of race-based equal protection claims).  It is crucial for our broader understanding as a culture – and for organizers and advocates who seek to change law and society by political and social means. Arguments based in equality may ultimately gain more traction in such non-litigation arenas, where the technical perils of equal protection jurisprudence and the plenary power doctrine hold less sway.

As scholars, as litigators, as a society, we better understand our immigration law when we know its history, including – perhaps especially – the unsavory parts.  As citizens, we are better off for the history we learn from such work as American by Birth, and we are better equipped to build for a future rooted less in a project of white nationalism and more in our national ideals of equality.

Maureen A. Sweeney is Law School Professor and Faculty Director, Chacón Center for Immigrant Justice at Maryland Carey School of Law. You can reach her by e-mail at

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