Immigration, Race, Sexuality, and Gender

Sylvia Rust

4/26/2020

Immigration, Race, Sexuality, and Gender

The United States started as a refuge for people that had faced persecution and unfair treatment from all around the world. Millions of immigrants came to the United States in the late 1800s to early 1900s, 14 million of them arriving through New York City’s Ellis Island (NPS, 2015). With the gift and placement of the Statue of Liberty in 1875, just off to the side of Ellis Island, immigrants and refugees could count on the sight of her as reassurance that they had made it to a land of freedom and acceptance. In theory, it is understandable for people to think that Americans and naturalized citizens are going to be less likely to be discriminated against based on their nationality, race, and other outward appearances and thus are less likely to have laws discriminate against them. This definitely seemed to be true in the 1700s and early 1800s when the only voters and naturalized citizens were white men, but as time has gone on, there have been persecution and assumptions made about people of color based on their creed. Throughout history, it has been apparent that race, gender, and sexuality have been factors in discriminatory legislation in the United States. 

Mendoza (2014) points out the series of specific acts of ostracism over time, starting in 1790 when the term “white persons” was used to deny citizenship to all people of color in the Naturalization Act. Then, some time later, in 1917, the discrimination of people by origin began when Asian immigrants were deemed ineligible for citizenship (Mendoza, 2014). Throughout the history of immigration to the United States, it has seemed that white people were always welcomed with open arms, despite the many claims that these restrictions were not racist or discriminatory but enforced for safety and resource limitations only.  

Kevin Johnson (2009) states, “In the first century of this nation's existence, a number of states sought to exclude the poor, as well as criminals and other "undesirables… the federalization of U.S. immigration law culminated with Congress's decisions to exclude the poor, specifically targeting Chinese laborers, as well as criminals, prostitutes, and other noncitizens deemed to be unworthy of membership in the national community” (pp. 5-7).  We see this in the Chinese Exclusion Act of 1889, a continuation of this Act on the case of Fong Ye Ting v. US from 1893 adding deportation as an option for Chinese immigrants. The Immigration Act of 1924 did not just exclude from Asia and other places with non-white citizens, but it laid out a national quota that favored Northern and Western Europeans. The Immigration Act of 1924 came during the First Red Scare and placed Southern and Eastern Europeans on the quota list, in fear of communist embedding in the United States (Ulmschneider, February 2018). 

We see an example of this in Knauff v. Shaughnessy (1950) when Knauff, a German war bride, was expelled in 1949 because she had escaped to Czechoslovakia during World War II and lived in London until the war ended. She spent years after World War II working for the German war department, married an American soldier, and when she came to the United States, she wanted to become a naturalized citizen. When Knauff comes to Ellis Island, she is detained and prevented from coming into the United States because of her previous escape to Czechoslovakia from Germany. It took 5 years for Knauff’s first hearing to be overturned and for her to be allowed into the United States (Ulmschneider, 2018). 

Kevin Johnson breaks down three features of modern U.S. immigration laws, “ Three features of modern U.S. immigration laws operate to discriminate -- directly or indirectly -- on the basis of class: the public-charge exclusion, the per-country caps on immigration, and the limited number of employment visas for low- and moderately-skilled workers.” (Johnson, 2009). Johnson goes on to discuss the per capita caps on immigration from the Western hemisphere. Only 26,000 immigrants from Latin America can come in annually as well as citizens from Iceland, Denmark, Sweden, Mexico, the Philippines, India, and China. Because of the caps on migration from Latin American countries and Mexico, many people get sick of waiting the 10-20 year wait it takes to receive a Visa from INS, and they will come to the United States by any means necessary, especially when they have family living in the United States waiting for a reunion. Immigrants from states with no cap or immigrants that have high-level employment skills do not wait in any line, so the argument that Latino, Filipino and other immigrants should just wait in line is unrealistic. Many people die waiting to come to the United States legally. 

Making immigration a facet that Congress could decide on because of its plenary power almost gives them power to interpret laws, the principal reason for the courts, making lots of Acts open to revision by the courts and often seen as discriminatory of immigrants and marginalized Americans. (Ulmschneider, February 2018). As Johnson summarizes, immigration in the United States is a unique and complex system that purposefully choses the immigrants welcome. Immigrants are classified into different groups depending on how they came to the United States. These classes determine how a court will evaluate cases surrounding immigrants. One class is a suspect class which is classified by the purposeful unequal treatment they endure because of the distinguishing characteristics of group such as alienage, race, and nationality (Harras, 2014). There are two quasi-classes as well: gender and legitimacy of birth that can into play for suspect classes or make a class suspect in general.  

An example of discrimination against a quasi-class Harras uses: The Supreme Court held that excluding women from Virginia Military Institute was unconstitutional due to the EPC but stated that discriminating against women based on their pregnancy status was still constitutional because pregnancy status can change but being a woman cannot.  A non-suspect class, the other classification, doesn’t fit in those two categories; they include age, disability, wealth, political affiliation and other classifications that can change. Court cases that respond to non-suspect classes use rational basis review. The burden of proof is given to the government or other defendants in a rational basis review (Harras, 2014).

The Immigration and Nationality Act (INA) breaks down immigrants into two types -- lawful permanent residents (LPR) such as green card holders that have social services available to them, can choose to serve in the military, must pay taxes and must register for selective service. The second category is nonimmigrants which entails any kind of visa holders - student, work, or travel; these visa holders cannot vote, receive “welfare”, and cannot serve in the US military. 

John Harras writes that aliens are treated like suspect classes. This means that anyone that is not a citizen, including Legal Permanent Residents (LPR’s) are likely to be discriminated against because of their alienage, race, class, nationality, gender, more so than American citizen, both born and naturalized.  These groups are to have the statutory classification based on alienage subject; cases involving immigrants and LPRs are to use the strict scrutiny test per the Equal Protection Clause of the Fourteenth Amendment of the Constitution. There are, however, two exceptions to this rule; one is the governmental function exception, like an alien having employment at a police department, and the other exception is undocumented immigrants -- both of these use the rational basis review in the courts. Harras (2017) describes a third exception because of a split in authority and opinion among second and fifth circuit courts.

Harras (2017) uses an example of this split between the second and fifth circuit. In 1907, Torao Takahashi came to the US as an alien; he worked as a fisherman. Takahashi was in internment during WWII when the US government took away fishing licenses from Japanese people. Takahashi v. Fish and Game Commission (FGC) (1948) was won by Takahashi, stating that the FGC discriminated against Japanese immigrants (and citizens) by taking away only their fishing licenses and not others. In comparison, in Wallace v. Calogero (2003), Caroline Wallace, a non-immigrant, lived in Louisiana and graduated from the College of Law in London. Wallace applied for admission to take Louisiana Bar, but she was denied because of her temporary status. The question is this: Are these cases similar? The law taking away fishing licenses from Japanese people, citizens and not, caused national anti-Japanese sentiment that was merely because of the way that Japanese people look rather than who they are. The Wallace case had nothing to do with her being a woman or her race, just her temporary status, if Wallace wanted to become a lawyer in Louisiana, she could, once she got her LPR, but the Japanese could not change their place of origin. 

In 1971 during the Graham v. Richardson case, the Takahashi case was used questioning the use of the strict scrutiny test on cases like Takahashi. The court is quoted, “Treating groups differently based on the members’ alienage was akin to discriminating against a group because of their race or color.” Although the Graham court stated this, other courts have not always had the same sentiment and have used the rational basis review rather than strict scrutiny. Rational basis is much simpler than strict scrutiny and gives the burden of proof to the government, essentially stating constitutionality for the defendant, making it almost impossible for a plaintiff to win a case. 

Like stated before, there is a split amongst second circuit and fifth circuit opinions. The second circuit found that in the Dandamudi v. Tisch, the court found nonimmigrants to be a suspect class and applied the strict scrutiny review to the court. The court struck down statute excluding nonimmigrants from getting a pharmacist’s license. On the other side, the fifth circuit, in Wallace v. Calogero, where Caroline Wallace was the plaintiff, they found that nonimmigrants are not a suspect class so they applied the rational basis test -- excluded nonimmigrants from taking the bar exam. 

Harras (2014) argues that nonimmigrants are not suspect class, and statutes that restrict rights of nonimmigrants should use rational basis review. He states the Supreme Court did not intend to make it suspect unless it is discrimination based on skin or skin color, so in saying this, why aren’t black women a suspect class? Why are only immigrants given this classification and thus given the burden of proof? 

The Equal Protection Clause was first used in Yick Wo v. Hopkins (Harras). The case involved problems in San Francisco city limits regarding laundry facilities. The city of San Francisco only denied Chinese immigrants and shut down laundry facilities owned by Chinese immigrants and the case was found to be unconstitutional. Takahashi was also seen as unconstitutional because of the racial groups and problems endured.

In Graham v. Richardson, an Arizona statute denied welfare to immigrants that had not resided in the United States for fifteen years. A similar case in Pennsylvania denied welfare to all immigrants. These two cases were found by way of strict scrutiny to have violated EPC. In a 1982 case, Plyler v. Doe, a case was struck down in Texas excluding children of undocumented immigrants from receiving public education. In 1978, the Foley case, using the rational basis test upheld the New York rule stating that no immigrants could be police officers. As you can see, the opinions of the court have changed and differed when different judges have been the court, so it makes you wonder, where are we going now? 

Two cases that came before the Supreme Court, one in 1975 (Brignoni-Ponce) and one in 2012 (Arizona) both had to do with how states racial profiling. United States v. Brignoni-Ponce, the case from 1975, was ruled constitutional for traffic stops for passengers who have a “Mexican appearance” due to the mass increase in undocumented Mexican immigrants (Mendoza, 2014).  The 2012 Supreme Court case, Arizona v. United States, was brought to the courts after the governor of Arizona, Jan Brewer, increased the power of law enforcement to deal with “illegal immigrants” in April of 2010 making it a state crime to be unlawfully present in the US, making it a state crime to work in the US when not authorized to do so, making it lawful for state and local officers to verify citizenship status of anyone detained, and authorized the warrantless arrests of individuals believed to be deportable. The Supreme Court said only the verification of citizenship was lawful, but that racial profiling was not allowed (Oyez, 2012). This form of Shadow Immigration Enforcement, as Sweeney (2014) points out, is another form of racial profiling that law enforcement are encouraged to use. George W. Bush authorized local and state governments to enforce federal immigration law in 2002 in DHS’ 287(g) jurisdiction. IN the switch from George Bush to Obama, Obama only allowed 36 facilities to continue the 287(g) processing, but most of these were local jails (Sweeney, 2014). 

To continue about quasi-classes, almost nothing is as difficult as being an immigrant woman. In Anderson’s article, “A License to Abuse: The Impact of  Conditional Status on Female Immigrants”, Anderson discusses the corrupt nature of women’s lives when they live on conditional resident status. The Immigration Marriage Fraud Amendment (IMFA) passed 4 days after the Immigration Reform and Control Act (IRCA 1986). The IMFA argued there were extreme hardships from deportation, but not extreme hardship in marriage.

The Immigration Act of 1990 of INS regulations stated that husbands (or the legal spouse, but in this instance, mostly male spouses were looked at in this study) control applying for the petitioning process for their wives who have not received conditional status yet. Conditional status can take more than 2 years to obtain. Sometimes husbands will say they’ve applied for conditional status for their wives and not or will threaten their wives with divorce because their conditional status depends on them. 

From the manipulation of their spouses from the beginning of relationships until physical abuse occurs, it is obvious immigrant wives married to legal citizens or LPRs experience lots of domestic abuse. This is not because immigrant women are just strong, culturally uncomfortable with divorce, and feel connected to the country, but that our laws make it almost impossible to get help. 

The Immigration Marriage Fraud Amendment of 1986 stated that immigrants have to be married to their legal spouse for more than two years or else the immigrant spouse loses their legal status and becomes deportable. In 1988, the IMFA changed stating that if women could prove they were battered that their status could adjust from conditional residence to license permanent residents. The problem with this, Anderson (1993)  wrote, is that the requirement is that psychiatrists, policemen, and other professionals had to take the stand and they would not allow other women, those that work in battered women facilities, and other places to testify. 

Since World War II, over two hundred thousand military brides (also known as war brides) have married American servicemen.  In military families, women are two times as likely to be abused with weapons than civilian women (Anderson, 1993).

Mail-order brides have been outlawed in the Philippines because of the large amount of abuse done to women involved with it, but the operation has gone underground with no change in international trade in frequency for mail order brides (Anderson, 1993). Many Filipina women get involved with the business in hopes that they’ll get to live the American dream, but many don’t get anything close to that (Anderson, 1993). 57% of Filipinas and 64% of Latinas will not seek help because of fear of deportation, either for themselves or their LPR spouses (Anderson, 1993). Imagine a person is unable to petition for their own immigration status or seek help. This person in theory is unable to go to the department which protects them and advocates them in fear of deportation. A solution might be third party groups who advocate on behalf of the individual, however many multilingual resources are out of limits financially or do not exist in areas of the country.

On top of the discrimination and unjust treatment of women, there is little to no support and rights for LGBT(Q) refugees and asylum seekers. There are cases of asylum seekers getting into the United States because of their sexuality, as HIAS elaborates of Malik’s transition from being in hiding in Baghdad to having a support system in the United States. (HIAS). The help of non-profits like HIAS are helpful and should not be underplayed, but the currently the USCIS and the Executive Office for Immigration Review do not collect data on sexuality for asylum claims and many of the asylum seekers are being left in detention centers, making it hard to meet the one-year deadline to apply for asylum in the United States (States News Service). 

It is generally thought that Korematsu, Japanese internment was horrible, that the judges voted unfairly in the case. People say, “Never again” but what about the detention camps (as mentioned before) in Artesia, Karnes, and Dilley Pskowski? (2016) When immigration becomes a national security concern, fallacies are made up about how the crimes committed by illegal immigrants supersede those of Americans and legal immigrants. Even during the quarantine of 2020, we see this xenophobic/sinophobic behavior that was experienced in the 1940s and recently with the Ebola epidemic. Nora Coon and Shannon Garcia write about the US asylum outcome as it relates to racial factors; using specific examples to boast United States patriotism and anti-blackness. They use Haitian refugees and Cuban refugees as an example (Coon, 2017). The Haitian refugees crisis used the Matter of D.J. decided by the Attorney General that would affect non-white individuals seeking refuge -- insinuating that all non-white refugees are coming illegally. The Cuban refugees; however, were marked as fleeing communism thus making their arrival seem like a win for Capitalism and Americanism.  

It may be for the best that Trump has decided to give this right to Congress because President Trump has not helped make tensions about immigration better. In June 2017, Trump stated that 15,000 recent immigrants from Haiti “all have AIDS” and that 40,000 Nigerians, once seeing the United States, would never “go back to their huts” in Africa. He has said Mexicans are rapists and criminals. He has called for a Muslim Ban. (Leonhard, 2018). David Leonhard writes, 

“[Trump] frequently criticizes prominent African-Americans for being unpatriotic, ungrateful and disrespectful. He called Puerto Ricans who criticized his administration’s response to Hurricane Maria “politically motivated ingrates.” Trump pardoned – and fulsomely praises – Joe Arpaio, the Arizona sheriff sanctioned for racially profiling Latinos and for keeping immigrants in brutal prison conditions.”

There’s no wonder times in the United States are so divisive when our president looks down on 40% of the population, not including the other quasi-classes listed before. Trump has tried to make anyone that isn’t white look bad in the United States, the other two branches of the government have done a good job trying to make and interpret laws. DACA has been reinstated despite Trump’s assertiveness about getting undocumented children out. The “Travel Ban” as he calls it today is likely to be marked as Constitutional by the Supreme Court soon, but again, it depends on if they use Strict Scrutiny or Rational Basis to decide the case since the “Travel Ban” involved immigrants, LPRs, and refugees alike. 

It should not come as a surprise to anyone that our immigration policies now would not have allowed our ancestors to come to the United State legally if these were around in Native American societies (side note: they probably would have used some kind of blunt force to get the States anyways). 

The current immigration policies are restrictive, specific, and tricky to maneuver. Times have definitely changed since 1491 when Columbus first came to America, they have changed since 1789, since 1865, and they have even changed drastically since 1965. 

Cox (2007) writes, “Over the last century, Congress steadily expanded the ex post screening system by augmenting the list of post-entry conduct that would make a noncitizen deportable. In 1922, Congress for the first time included certain drug convictions. And the enactment of the Immigration and Nationality Act in 1952 broadened the definition of subversives subject to deportation and enlarged a number of other deportability grounds as well.105 This expansion has accelerated in the last twenty years, as Congress has added additional grounds of deportability - particularly criminal grounds.” 

This quote proves that the United States has tried to make their immigration policy restrictive so that only “the best of the best” could come into the United States. As Trump would say, more Norwegian immigrants. It is no secret that immigration restrictions affect not only immigrants but Americans, too. Specially immigration restrictions affect the lives of lower class, Americans of color that have friends and family in other countries -- that will probably never make it to the United States because of the selectivism involved in the immigration laws.  

Throughout history, the United States has claimed to be the land of the free, land of dreams, full of prosperity, but these things have only rang true for a few Americans. White, male, cis gender, straight Western Europeans took this land from Native Americans, built this country on the backs of black people, and still hold the reins of the political system, economics, and popular culture in the United States. Problems get placed in the hands of immigrants, people of color, and women rather than getting fixed. Immigration, like police brutality, pay equity, and all other problems in our political systems can only be fixed by our elected officials. Immigration is not a national security issue as much as white supremacists and isolationism, for example, as laid out in Coon, Mendoza, and Landgrove, but because of bipartisanship -- immigration will be included in national security discourse for a long time, for better or for worse, and women and queer folx will still be the ones hurt the most. 

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