Historically, America Both Legalized and Deported Immigrants -- Since 1996 it Only Deports Them

This article is a response to Joseph H. Carens's Case for Amnesty, and part of a New Democracy Forum on immigration.

Joseph Carens offers a persuasive case for granting amnesty to unauthorized migrants. He argues that liberal democracies should acknowledge the social ties that migrants establish over time, which make them de facto members of society, even if they lack formal legal status. The longer migrants stay in the United States, the stronger their moral claim to remain. In effect, Carens says, the better answer to the misalignment of social inclusion and unlawful status is legalization, not deportation.

Carens writes from the standpoint of the ethical commitments that undergird liberal democratic societies. I would like to add a historical argument. The history of American immigration policy suggests two lessons of current relevance. First, as long as we have had restrictions on immigration, we have had provisions for both deportation and legalization. Carens's argument is worthy, but it also is not new; legalization has always been based on the same principles: length of stay and familial ties to citizens. Second, there is a rough correlation between race and legalization. From the late nineteenth century through the middle of the twentieth, the United States established myriad policies that enabled some irregular migrants from Europe to legalize their status, but harsh policies toward those from China and Mexico.

From the time of the founding of the republic through most of the nineteenth century, immigration to the United States was normatively open. It may be hard for us today to imagine a system with no passports, visas, quotas, green cards, border patrol, deportations. The first restrictive immigration laws were the Chinese exclusion laws, passed by Congress in 1875 and 1882, first barring "Mongolian" prostitutes and then all Chinese laborers. Enforcement included both extreme interrogation of new arrivals and deportation of those without legal status. In 1892 Congress required legally resident Chinese to carry a permit; failure to produce it on demand was punishable by a year's imprisonment at hard labor followed by deportation -- unless one could produce three white witnesses to vouch for one's legal status. The U.S. Supreme Court upheld the permit requirement, ruling in Fong Yue Ting v. United States that aliens entered and remained only by "the license, permission, and sufferance of Congress." The court did strike down the provision for imprisonment at hard labor.

In 1882 Congress also passed the first general immigration law, which excluded from the United States convicts, lunatics, idiots, and persons likely to become public charges. By World War I the list of excludable categories grew to include contract laborers, persons with "loathsome and contagious disease," prostitutes, polygamists, and anarchists. These exclusions indexed concern over potential drains on the public coffers and fears of moral contaminants. The first deportation law, passed in 1891, authorized the removal of aliens who within one year of arrival became public charges from causes existing prior to landing. The expense of deportation was borne by the steamship company that originally brought the unwanted immigrant. Deportation was thus conceived as appropriate only for persons with limited length of stay in the country. Even as Congress extended the statutes of limitations on removal to five years for certain categories in the early twentieth century, it still hewed to this basic principle. However, that appreciation of immigrant settlement and incorporation did not extend to the Chinese, whose exclusion was based on a racial logic that Chinese were inherently unassimilable. There was no statute of limitation for deporting unauthorized Chinese.