It’s been over a century since the U.S. government wrote racial exclusion into law, and for the past few generations, American immigration policy and race have courted each other without directly overlapping—at least not on paper. Yet, even in a post-Jim Crow era, race continues to color the politics and mechanics of immigration policy. A scholarly analysis of immigration law questions whether, 120 years after the Chinese exclusion act, the government carries out racial exclusion by proxy.
In “Religion and Nationality in Immigration Selection: 120 Years after the Chinese Exclusion Case,” constitutional scholars Liav Orgad and Ted Ruthizer say immigration policy may enable the use of certain racially freighted criteria, like cultural factors or national identity, to filter immigration. Just as police may rely on “gut” feelings to invoke racial profiling, so policymakers can craft restriction rules that elevate people of a certain color or ethnicity.
Racial exclusion in immigration regulation plays out in various ways: policies might appear “neutral” but nonetheless influence the racial composition of in-migration; they could be inadvertently racially exclusive by favoring certain qualities—more education or job skills, for example. As with many issues of “race-blind” versus “race-conscious” policy, the balancing act lies in being cognizant of racial disparities without entrenching harmful discrimination. Orgad and Ruthizer argue:
The Fourteenth Amendment takes account of racial prejudice yet does not require satisfying strict scrutiny because immigration is seen as extraconstitutional area…. In principle, race can matter when its use is not arbitrary, serves a legitimate purpose and is proportional. From a moral perspective based on the principle of corrective justice, race can matter when it is aimed at correcting past wrongs, a kind of reparation for past exploitation. From a perspective of distributive justice, race can matter when it is intended at allocation of goods. In these situations, race-based classifications have different justifications, goals and scope, nonetheless they are not excluded per se from the process of selecting immigrants; they are context-based.
Post-9/11 national security rules expose an arbitrary rationale of exclusion:
Emphasis on nationality became more intense following the terrorist attacks of September 11, 2001. Soon thereafter, the Department of Justice began an aggressive new program, the National Security Entry-Exit Registration System (NSEERS), imposing entry and exit special registration requirements on male nonimmigrants (temporary residents), aged 16 and older, from 25 designated countries (24 Arab and other predominantly Muslim states, plus North Korea). Citizens of a designated country were required to be interviewed and fingerprinted. The requirements applied on the basis of national origin, not on the basis of one’s country of citizenship. But while even Jewish and Christian citizens of countries such as Morocco were subject to the registration requirements, the impact was felt overwhelmingly by Muslims born in those countries.
A ban against “nonimmigrant aliens from states sponsoring terrorism” reflects similarly dubious political logic:
The justification for this rule probably relies on the fact that all of the 19 hijackers legally entered the country as nonimmigrant visitors. Some people believe that this fact justifies extra scrutiny of nonimmigrant Middle Eastern Muslims. But while the rule does not apply to countries such as Egypt or Saudi Arabia, it applies to Cuba.
Immigration policy sits on a long history of formalized exclusion. The taxonomies of “hebrew race” and “Mongolic” immigrants that dictated admissions at the turn of the century betrayed white-supremacist ideology cloaked in pseudo-science.
Today, the Courts and Congress are embroiled in controversies over equality before the law, equal access to public resources, and other racial equity issues—for the people already living here. Yet the authors conclude:
To a surprisingly large extent, the power of Congress to regulate immigrant selection based on invidious distinctions continues to exist and, even more so, continues to be legally permitted to an extent not matched in any other avenue of American jurisprudence.
It’s an uncomfortable truth: the policy discussion surrounding who deserves to be let through the border is endemically exclusive. As long as national boundaries align with divisions of race, culture and class, policies on border control, visa lotteries, green cards and work permits are all bound up in an inherently racialized project of social engineering. There is no clear moral line that can be drawn; we can only be conscious that these policies are never “neutral.” They always turn on a subjective question that vests the government with incredible power: who belongs here?