To Be An American. Bill Ong Hing
and anti-Catholicism. This culminated in passage of the Act of February 5, 1917, which contained a controversial literacy requirement that excluded aliens who could not “read and understand some language or dialect.”
The reactionary, isolationist political climate that followed World War I, manifested in the Red Scare of 1919–20, led to even greater exclusionist demands. The landmark Immigration Act of 1924, opposed by only six senators, once again took direct aim at southern and eastern Europeans whom the Protestant majority in the United States viewed with dogmatic disapproval. The arguments advanced in support of the bill stressed recurring themes: racial superiority of Anglo-Saxons, the fact that immigrants would cause the lowering of wages, and the unassimilability of foreigners, while citing the usual threats to the nation’s social unity and order posed by immigration.
The act restructured criteria for admission to respond to nativist demands and represented a general selection policy that remained in place until 1952. It provided that immigrants of any particular country be limited to 2 percent of their nationality in 1890. The law struck most deeply at Jews, Italians, Slavs, and Greeks, who had immigrated in great numbers after 1890, and who would be most disfavored by such a quota system.
RENEWING THE ATTACK ON MEXICANS
The national origins quota system and statutory vestiges of Asian exclusion laws were abolished in the 1965 amendments to the immigration laws. But by the time I started practicing immigration law as a legal services attorney ten years later, the rise of anti-immigrant sentiment particularly directed at Mexicans was conspicuous. I went to the local INS office in San Francisco on a daily basis to represent people in custody, most of whom were Mexican. Although INS employees acknowledged that Mexicans did not make up the majority of undocumented aliens in the country, Mexicans were targeted by INS sweeps. Even in the mid-1970s, exclusionists were advancing a labor displacement theory, and Congress was considering an employer sanction law that was referred to as the Rodino Bill. Exclusionists constantly complained about undocumented workers coming across the U.S.-Mexico border, and the Commissioner of the INS routinely alleged that 12 million undocumented aliens were in the United States. INS agents and officers whined about how we were all going to have to learn Spanish unless something was done.
In truth, restrictions on Mexican immigration were initiated even in 1965. Between 1965 and 1976, while the rest of the world enjoyed an expansion of numerical limitations and a definite preference system, Mexico and the Western Hemisphere were suddenly faced with numerical restrictions for the first time. Additionally, while the first-come, first-served basis for immigration sounded fair, applicants had to meet strict labor certification requirements. Of course, waivers of the labor certification requirement were obtainable for certain applicants, such as parents of U.S. citizen children. As one might expect given the new numerical limitations, by 1976 the procedure resulted in a severe backlog of approximately three years and a waiting list with nearly 300,000 names.25
During the 1965–76 experience, two noteworthy things happened. First, Mexicans used about 40,000 of the Western Hemisphere’s allocation of 120,000 visas annually. Second, during this eleven-year period, the State Department wrongfully subtracted about 150,000 visas from the Western Hemisphere quota and gave them to Cuban refugees.26
In 1977, Congress imposed the preference system on Mexico and the Western Hemisphere along with a 20,000 visa per country numerical limitation. Thus, Mexico’s annual visa usage rate was virtually cut in half overnight, and thousands were left stranded on the old system’s waiting list.27 The eleven-year misallocation of visas to Cuba eventually led to a permanent injunction and a “recapturing” of the wrongfully issued visas in Silva v. Levi.28 However, Mexicans again received the short end of the stick when the State Department’s formula for reallocation, which failed to provide sufficient visas for thousands of Mexicans on the Silva waiting list, was upheld. As a result, in February 1982 INS authorities began to round up those Silva letter recipients who had not been accorded immigrant visa numbers in order to advise them of the termination of the Silva injunction against their deportation and the end of their work authorization derived from their Silva letter class status. The recipients were further informed that unless provisions of the existing immigration law qualified them to remain in the United States, they would have thirty days for voluntary departure. Because of the public outrage, as of August 20, 1982, the INS ceased to enforce departure in cases involving former Silva letter recipients subject to deportation or exclusion proceedings. However on February 1, 1983, the Enforcement Branch of the INS ordered that the processing of Silva letter recipients be resumed.29
To make matters worse, in the first year of the preference system and the 20,000 limitation on countries of the Western Hemisphere, Mexico lost 14,000 visas due to a congressional mistake. The effective date of the new law was January 1, 1977. Since the government’s fiscal year runs from October 1 to September 30, by January 1, one full quarter of fiscal year 1977 had expired. During that first quarter, 14,203 visas were issued to Mexicans pursuant to the immigration system which prevailed in the Western Hemisphere before the new law became effective. The State Department nevertheless charged those visas against the newly imposed national quota of 20,000, leaving only 5,797 visas available for Mexican immigrants between January 1 and September 30, 1977. In De Avila v. Civiletti,30 the Seventh Circuit Court of Appeals sustained the State Department’s approach even though it was “obvious that Congress … through inadvertence failed to inform the State Department how to administer during a fraction of the fiscal year a statute designed to apply on a full fiscal year basis.”
The effect on Mexican immigration of the 1977 imposition of the preference system and 20,000 visa limitation (modified in 1990) is not surprising. Mexico and Asian countries share the largest backlogs in family reunification categories.31 For example, the category for married sons and daughters of U.S. citizens (Third Preference) for Mexico is backlogged more than eight years. Brothers and sisters of U.S. citizens (Fourth Preference), a category which has been under constant attack by retiring Senator Alan Simpson, must wait at least eleven years if they are from Mexico and eighteen years if from the Philippines.
Mexicans continue to be victims of highly publicized INS raids. Dubbed “Operation Jobs” or “Operation Cooperation,” they are reminiscent of “Operation Wetback” and raids directed at Asian immigrants in the past. In what the INS labeled “Operation Jobs” in April 1982, five thousand people of primarily Latin appearance were arrested in nine metropolitan areas across the country.32 Critics of the raids charged that the operation was directed at Mexicans, whipped up antialien hysteria, and caused much fear in the Latino community, while providing no jobs for native-born citizens.33 Curiously, “Operation Jobs” was launched during the same week that restrictive legislation (the Simpson-Mazzoli Bill) was being marked up in the senate subcommittee on immigration. The raids also coincided with Congress’s consideration of additional funds for the INS.
“Operation Jobs” merely highlighted what had been going on for many years. A review of litigation initiated long before the 1982 operation indicates that the INS had long focused its sweeps on persons of Latino descent.34 In fiscal year 1977, for example, of the deportable aliens arrested, more than 90 percent were Mexican.35
As the INS enforcement budget grew larger and larger during this period, the Supreme Court, swayed by arguments that the undocumented alien problem was worsening, gave more flexibility to INS enforcement strategies. First, in 1975, in United States v. Brignoni-Ponce,36 the Court held that under