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Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Finale

by Marian L. Smith

In recent years, scholars, scientists, and policymakers have turned increasing attention to matters of race as a factor in our society, the judicial system, and in American history.

The history of U.S. immigration and nationality law demonstrates how race became a factor in determining who could come to America and who could not. Studies of Chinese exclusion laws or the old immigration "quota system" trace a tradition of racist immigration policy. The Supreme Court reinforced this policy in the 1920s with a decision stating that Americans shared a "common understanding" of who was and was not "white," and by extension shared a "common understanding" of who did and did not belong in the United States.

Despite Supreme Court pronouncements, federal officials charged with administration of U.S. immigration and nationality laws were keenly aware that not all Americans shared the same understanding at any given time. More important, any "common understanding" of race or ethnicity shared by a majority of American society evolved over time, while the law remained locked in eighteenth century language.

For officers of the Immigration and Naturalization Service and its predecessor agencies, issues and problems of race were more practical than theoretical. Immigration laws barred the entry of the poor and sick, and Ellis Island immigrant inspectors could check to see that arriving immigrants had adequate money while Public Health Service physicians checked the immigrants' health. But how did they decide who was or was not white? What rules did they follow? How could those rules be changed?

When Congress finally eliminated the racial provisions in U.S. immigration and nationality law in the 1940s and 1950s, generations of federal practice and procedure did not instantly disappear without a trace. Over the years, other government agencies had developed their own racial classification systems, often partially borrowed from INS experience, and such systems could take on lives of their own.

Thus a review of how INS officials met the challenge of interpreting racial provisions in the law, and how the courts, Congress, and an activist public helped shape that interpretation, is necessary to fully appreciate current debates over race. It may also be helpful in determining whether we share any "common understanding" on such matters today.

* * *

After 1790, and throughout the nineteenth century, Congress legislated separately regarding immigration and nationality. One congressional committee drafted nationality law, defining U.S. citizenship and how it might be lost or gained. Another committee addressed immigration issues and only began serious attempts to govern or regulate immigration as the nineteenth century came to a close. With the exception of the Chinese Exclusion Act of 1882, the two bodies of immigration and nationality law were not coordinated, nor did either make any reference to the other.

During the antebellum years and for a time thereafter, immigration and nationality law appeared to agree and serve national goals. The United States achieved a policy of free and open immigration largely by failing to legislate on the subject. The Steerage Act of 1819 remains Congress's most aggressive action regarding immigration prior to 1875, and the 1819 law worked to encourage immigration by ensuring safe and healthy conditions aboard passenger ships.1 As the nation marched west, a regular supply of immigrants from Europe arrived to occupy new territories and hold them for their new nation.

Nationality law allowed for political inclusion of new arrivals into the United States. Between 1790 and 1802, Congress established simple rules for naturalization and facilitated the process by granting naturalization authority—which belonged originally to the legislative branch—to "any court of record."2 Naturalization requirements included five years' residence in the country, "good moral character," and that applicants be "free white persons." Such language in 1802 preserved the constitutional understanding of citizens as white persons and exclusion of African Americans and "Indians not taxed" from citizenship. U.S. nationality law generally transformed northern and western European immigrants into U.S. citizens. For most of the nineteenth century, Europe was the primary source of immigration to the United States, and it no doubt seemed the law would be adequate forever.

The fourteenth amendment declared all persons born within the United States to be U.S. citizens and worked to bestow citizenship on freedmen. Congress went further by amending naturalization requirements in 1870 and extending naturalization eligibility to "aliens being free white persons, and to aliens of African nativity and to persons of African descent."3 The 1870 revision of §2169, U.S. Revised Statutes, laid the foundation for future confusion over racial eligibility to citizenship. The rule did not state that white persons and black persons may naturalize, nor did it limit naturalization to those of European or African nativity or descent. Rather, the 1870 rule appeared to apply a color test—white persons and those with African origins (i.e., black)—but did so by reference to geography. After extending naturalization to blacks (as Africans) in 1870, Congress banned the naturalization of Chinese in 1882. The Chinese Exclusion Act of that year, which is primarily an immigration law, included a section directing that "hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed."4 The 1882 law clearly directed the courts not to naturalize any Chinese, but it did not explain whether "Chinese" indicated race or nationality.

There was relatively little controversy or litigation surrounding racial qualifications for citizenship before the late nineteenth century. As others have explained, federal citizenship was of secondary importance to state citizenship until some time after the Civil War.5 Yet as sources of American immigration shifted and increasing numbers of people came from southern and eastern Europe, the subcontinent, and Asia, their desire to naturalize confronted the racial limitations in U.S. nationality law. Because naturalization remained a judicial function, the courts were left to decide who was or was not a white person, or an alien of African nativity, or person of African descent.

In this question, as in all naturalization matters, the courts had little guidance. The delegation of naturalization authority to "any court of record" in 1790 led to a motley array of more than five thousand high and low courts exercising such jurisdiction by the turn of the twentieth century. Case law was their only guide, for there was no central or national authority to answer judges' questions regarding the finer points of naturalization law or procedure. Methods adopted by late nineteenth-century courts to determine qualifications for citizenship varied widely. Just as courts in some localities interpreted the "good moral character" requirement differently, judges in different jurisdictions had differing ideas of what constituted "whiteness." Many thousands of elected county judges across the nation simply relied on their "common understanding" of race, an understanding presumably shared by the local community.

It was the lack of uniformity among naturalization courts and procedure, and the fraud it bred, that underlay Congress's establishment of the U.S. Naturalization Service by the Basic Naturalization Act of 1906 (34 Stat. 596). The law placed the Bureau of Immigration and Naturalization in "charge of all matters concerning the naturalization of aliens," with the general purpose of promoting uniform naturalization practices nationwide. While this seemed a clear mission, bureau officers would soon learn that influencing the courts—especially nonfederal courts—presented a persistent obstacle. Furthermore, inconsistencies within nationality law would prove difficult to reconcile. Among the most difficult was the issue of racial eligibility to citizenship.

As the bureau began its work, it found racial eligibility already a complicated subject. Though §2169 contained the broad rule regarding white persons and persons of African descent, an act of April 9, 1866, and the fourteenth amendment to the Constitution decided "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." In 1898 the Supreme Court confirmed that the amendment applied to the U.S. -born children of Chinese and to others prohibited by law from becoming naturalized.6 Thus §2169 set racial qualifications for naturalization only; it did not apply to citizenship conferred by birth. Congress also, at times, ignored §2169 and used its original authority over naturalization to extend U.S. citizenship to groups of racially ineligible aliens. Numerous Native Americans were naturalized by treaty during the nineteenth century as were Chinese-born citizens of Hawaii at the time of annexation.7

The 1906 naturalization law retained §2169 limiting racial eligibility to citizenship, but as noted above, that language was not clear. By mixing references to color and geographic origin, the law displayed a then-popular confusion, or equation, of race with nationality. And if the vague language used to convey congressional intent regarding race was frustrating to federal naturalization officials at the turn of the century, the problem only worsened as time passed. Racial theory and terminology evolved each decade. "Racial" understanding associated with the eugenics movement was largely if not completely discredited after World War II, yet §2169 remained the nationality law of the land. Even when amended by Congress, the addition of equally vague language regarding additional "races" only served to increase Naturalization Service difficulties in administering the law.

While naturalization officials fielded questions about whether the term "race" meant color or nationality after 1906, they also encountered a third use of the term by immigration officials who operated within the same bureau. The U.S. Immigration Service developed its own conception of race during the late 1890s in an effort to improve immigration statistics at the port of New York. Ellis Island officials created a "List of Races or Peoples" with which to classify arrivals at that immigration station. The list of races was expressly "not intended to be an ethnological classification," nor was it to be "a history of an immigrant's antecedents." Rather, it was considered a practical tool devised by immigration officers familiar with the growing flow of immigrants into the United States, a tool that grouped together "people who maintain recognized communities." Statistics concerning such recognizable groups were deemed valuable as predictors of where such immigrants might settle and what occupations they would follow. An immigrant's race or people often decided these questions because, as one of its authors explained, "an immigrant is bound to ally himself with people of his own language already here and will enter the pursuits in which these people have found they can succeed."8

Immigration officials, and their List of Races or Peoples, employed the term "race" as we might use the term "ethnicity." Yet even among Ellis Island immigration officers, experts in identifying an immigrant's origin by his language or dress, "common understanding" was not universal. Rather, inspectors were as apt as the general public to use the terms race and nationality synonymously. Victor Safford, a medical doctor at Ellis Island and one author of the List of Races or Peoples, admitted there were "different ideas as to what these statistics are intended to show." As an experiment, he asked different immigrant inspectors to classify the same immigration passenger manifest record and found "confusion as to nationality, race and residence and a lack of agreement as to the territorial limits of the districts specified."9 For the moment, the relation of race to ethnicity or nationality was an academic question for Safford and the Immigration Service. Immigration law contained no reference to race beyond the exclusion of Chinese. When Congress did insert the word "race" into the Immigration Act of 1903, the purpose was to extend application of the List of Races or Peoples statistical scheme to all U.S. ports of entry.10

Until Congress instituted the national origins system of racial quotas in 1924, the "race question" remained primarily a headache for the Naturalization Service. As noted above, when the service began its work in 1906, the courts had not come to a clear definition of who was or was not a white person. The very existence of the Naturalization Division within the Bureau of Immigration and Naturalization, however, grew from Congress's mandate that it oversee and guide naturalization work by the courts. Naturally, those with questions about naturalization addressed them to the division. The clerk of the U.S. District Court in St. Louis, for example, asked in early 1907 whether the term "white person" in §2169 in the statutes and in the division's Naturalization Regulation 21 designated "only those whose color is actually white or does it further include all persons of what is ethnologically known as the white or caucasian race?"11

Whether to apply a "color test" or to determine whiteness by reference to an ethnological table of the families and races of mankind was the basic question put to naturalization officials for years thereafter. Court officers, attorneys, and private citizens regularly requested a ruling from the Department of Commerce and Labor on the question. But, as Naturalization Division Chief Richard K. Campbell admitted in 1907, such a ruling would not "be considered authoritative if one were adopted," because the ultimate power to decide the issue lay with the courts.12

At the same time, Campbell understood the 1906 naturalization act to have given his agency a clear mandate to guide naturalization courts toward uniformity. When the various U.S. attorneys who represented the government in naturalization cases asked Campbell how they should proceed without a definitive court ruling, he began to offer the opinion of his office regarding racial eligibility to naturalization and to suggest a course of action for the attorneys. While Campbell's writings indicate that he personally considered "off-color races not only unfit but as well undesirable additions to the body politic," his strategy consisted of efforts to force courts into making decisions one way or the other. He began in August 1908 by advising Andrew Balliet, assistant U.S. attorney in Seattle, to direct clerks of court to refuse to accept declarations of intention or file petitions for naturalization on behalf of "Hindoos," or East Indians. In doing so, Campbell hoped to push the applicants toward a higher court that might issue a precedent decision.13

Beyond his effort to coordinate the activities of U.S. attorneys, and through them influence clerks of courts, Campbell could offer little in the way of practical instruction. He received numerous queries from clerks like J. W. Porter, clerk of the circuit court, Champaign County, Illinois, who asked if the division could supply a "list of countries from which, and from which only, natives may apply for naturalization?"14 Campbell replied that there was no list, nor would such be of any "practical value." Rather, a list of countries, representing nationalities, "would be very apt to mislead you" since §2169 does "not apply to countries or to natives of any country, solely, as white persons may come from any country to the United States and be eligible to citizenship."15 Like the courts, the Naturalization Division could offer no clear guidance on Clerk Porter's practical question.

Copies of Richard Campbell's earlier letter to U.S. Attorney Balliet, which implied that clerks of court were not to accept naturalization applications by any person racially ineligible to citizenship, eventually forced Campbell and the division into retreat. In the next year, 1909, New York immigrant advocate Justin S. Kirrah launched a campaign on behalf of Syrians, Turks, East Indians, and others deemed non-white by Campbell. In a complaint to the secretary of commerce and labor, Kirrah accused the division chief of "personal malice" toward certain ethnic groups and of interfering with work of the courts and "abuse of his office and usurpation of functions appertaining to Federal officials other than himself."16 At the same time, the Board of Delegates on Civil Rights of the Union of American Hebrew Congregations also complained to the secretary about the department's denial of naturalization to Turks, Syrians, Armenians, Palestinians, and Jews, pointing out that if the ruling were upheld, "it would, if living, exclude David and Isaih [sic] and even Jesus of Nazareth himself."17

Secretary of Commerce and Labor Charles Nagel soon admonished the chief of naturalization for pretending to decide for the courts whether a person was racially qualified to apply for naturalization, advising the division to "be concerned more with the present reputation than with the original nativity of the applicant." Campbell responded by mailing a new letter of instructions to each chief naturalization examiner (representatives of the division in naturalization hearings). He admitted that racial eligibility was a question of law "and is not a question which this Department or any officer thereof is authorized to decide." On the other hand, it remained the examiners' duty to advise the court of each and every petitioner's race.18 Though the 1906 Naturalization Act put the Naturalization Division in charge of "all matters" related to naturalization, this 1909 episode demonstrated the limited power held by the administrative agency at that time. The division and the courts actually shared, or enjoyed divided, authority over various aspects of the naturalization process. And as Campbell later remarked, "[d]ual authority and responsibility never have been and never will be productive of anything but confusion."19

Unless the courts issued enough decisions to determine the eligibility of every possible "race" that might apply for citizenship, or until the Supreme Court might issue broad guidance on the definition of white persons, federal officials continued to live amid uncertainty. Those at the Department of Interior's General Land Office were frequently embarrassed by the fact that they accepted homestead applications from aliens racially ineligible to citizenship, then had difficulty issuing final patents when the homesteader was unable to naturalize. Often, judges frustrated with contradictory federal rules would admit racially ineligible homesteaders to citizenship as a protest to conflicting federal practices.20

Other absurd cases continued to arise, like the case of Carmen Garcia, a Mexican teacher at the Government Indian School in Riverside, California. While employed by one arm of the U.S. government to teach Americanization on the reservation, Garcia was found racially ineligible to naturalize by another arm of that government because her ancestry was three-quarters Papago Indian.21 In correspondence with U.S. attorneys, Campbell sought cases in which an objection to the naturalization of a racially ineligible applicant might make its way to the Supreme Court. Attorneys, however, were understandably reluctant to defend such objections without evidence, and there was no settled opinion on what constituted evidence of race. The courts increasingly turned to science for an answer to the question, and the state of early twentieth-century American ethnology was peculiarly qualified to confuse the issue further.

When trying to advise a local judge about the racial eligibility of "Hindoos," or East Asians, the assistant U.S. attorney in Seattle consulted a scientific library in an effort to learn whether or not East Indians were white. He learned that ethnologists considered East Asians to be "from Aryan stock," specifically "Caucasic" or "Caucasian." He then advised the court to accept a Hindu's application, since it seemed "from the best source of information obtainable by this office on that subject that they are included in the term 'Caucasian.' If that is true they have a right to make their declaration." Expressing some doubt that his action was appropriate, the attorney wrote the Division of Naturalization for Campbell's opinion.22

Campbell frequently voiced his disregard for "ethnologists, of whom the authors of the statutes had as little knowledge as they did of this rather speculative science." Campbell said the division based its determination that Hindus were not white persons on previous court decisions holding that Indians, Chinese, Japanese, Hawaiians before annexation, and natives of British Burma were all nonwhite Further, "prior to the Civil War negroes, of whatever shade, were ineligible." Arguments that Hindus were Caucasians were irrelevant, for it was "immaterial whether the writer is ethnically an Aryan or a Mongolian. His claim in that respect is probably correct. The fact is that he is not a white person." To determine who was and was not white, Campbell was happy to leave the issue to the courts, whose decisions would be based not on science, but on "common understanding":

    The law refers to persons, and confines the right to become naturalized to those who are white. It does not seem to me that the introduction of expert testimony would result otherwise than it does where testimony of this character is used to establish any doubtful point, the question of sanity, for example. Without being able to define a white person, the average man in the street understands distinctly what it means, and would find no difficulty in assigning to the yellow race a Turk, or Syrian, with as much ease as he would bestow that designation on a Chinaman, or Korean.

The result desired is one that can be reached definitely, not by any general rule, but by a slow process of elimination.

Campbell's approach now agreed with that taken by the lower courts, which considered each race or ethnic group on a case-by-case basis. The accumulation of court decisions over time, however, did not necessarily bring clarity. Campbell observed in 1916 that the language of §2169 "has been fruitful of much honest diversity of construction by the public and by the courts . . . in the absence of legislative attempt to remove its obscurity."23

The Supreme Court first attempted to construe the meaning of "white persons" in 1922, in the case of Ozawa v. The United States.24 In its decision, the court denied naturalization to Takao Ozawa, a Japanese born in Japan, on the grounds that he was not a white person. The written decision referred to white persons as those "popularly known as the Caucasian race." To many, this seemed a nod to the ethnological argument rejected by Campbell, and consequently "gave rise to a difficult situation in regard to those races who were not white of skin, but who were classified as Caucasian by ethnologists because of a remote common ancestry with admittedly white persons."25

The Supreme Court soon clarified its reasoning, and rejected scientific ethnological classification as a determiner of race, in its 1923 United States v. Thind decision. Bhagat Singh Thind was "a high caste Hindu of full Indian blood" born in Punjab, whom the court denied eligibility to naturalization. The written opinion explained that the words "white person" were to be understood as those found "in common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word 'Caucasian' only as that word is popularly understood."26 The Thind decision became the touchstone of judicial policy toward racial eligibility for another two decades.

The Supreme Court's reasoning in the Thind case had significance beyond determining that Hindus were racially ineligible to naturalize. While trying to divine the original intent of Congress in using the term "white persons," the court referred to Congress's more recent creation of the "Asiatic barred zone"27 defined within the Immigration Act of 1917. In the immigration law, Congress designated a geographic area from which immigration was prohibited, and the court concluded "it is not likely that Congress would be willing to accept as citizens a class of persons whom it rejects as immigrants."28 The court did not argue that Congress in 1917 was attempting to define the term "white persons" when drawing the zone, only that in doing so Congress again demonstrated that "common understanding" of nonwhite, non-African regions of the world. Furthermore, the Thind decision suggested that additional races from outside the barred zone could still be found ineligible to naturalization.

Yet the reference to immigration law and its barred zone seemed to offer an end to the confusion of naturalization officials, judges, and naturalization attorneys across the nation. The Immigration Act of 1917 described the barred zone with latitudinal and longitudinal precision. If one took Thind literally, one need only consult a map of the zone to determine the eligibility of any naturalization applicant.29 Commissioner of Naturalization Raymond F. Crist, who replaced Richard Campbell in 1923, called the Thind decision "a source of gratification to administrative officers" who longed for a settlement of the legal question by the Supreme Court, regardless of whether the court decision upheld or overturned previous administrative decisions. Supreme Court attention to disputed provisions of the nationality law were especially important, he noted, as the Constitution mandated uniformity in application of naturalization laws. Crist seemed to think the Thind decision would "clarify the atmosphere of doubt hitherto existing in the interpretation of the statutes."30

A Detroit judge soon demonstrated that questions of racial eligibility would continue to be decided on "common understanding," as recommended in Thind, rather than the Asiatic barred zone. Following the Thind decision, a number of suits commenced to cancel citizenship earlier granted to other Hindus. Facing proceedings to cancel his 1921 naturalization, John Mohammed Ali told the U.S. District Court in Detroit in 1925 that though born in India, he was not East Indian or Hindu. Rather, he was properly Arabian, for his ancestors originated in Arabia. The court replied that Ali's ancient ancestry was not at issue. Ali had dark skin and fit all other criteria that had disqualified Thind from naturalization. The court, however, did not definitely hold that persons of the Arabian race were ineligible. The decision in Ali's case, by canceling his citizenship but not deciding the eligibility of Arabs, only served to renew controversy over the eligibility of those peoples who bordered on the barred zone.31

Afghanistan was only partially included within the barred zone, but in 1928 a California judge also dismissed an Afghan's petition for naturalization on the basis of the Thind decision. In re Feroz Din, the court denied naturalization to an Afghan because he was neither white nor of African nativity or descent. It was not necessary to consult scientific evidence, the judge noted in his brief decision, for "[w]hat ethnologists, anthropologists, and other so-called scientists may speculate and conjecture in respect to races and origins may interest the curious and convince the credulous, but is of no moment in arriving at the intent of Congress in the statute aforesaid."32

Any remaining hope that immigration law's barred zone would provide a rational system for determining racial eligibility was dashed by the Immigration Act of 1924.33 In a marvelous example of legal cross-referencing, the 1924 act denied eligibility to immigrate to those denied eligibility to naturalize under U.S. nationality law—the very nationality law recently interpreted by reference to immigration law! Put simply, any person ineligible to naturalize was now ineligible to immigrate. By essentially incorporating §2169 into immigration law, Congress offered both the Immigration Service and the Department of State's Foreign Service the opportunity to wrestle with the question of who was, and was not, racially eligible to naturalize.

A good example of the problem appeared in early 1930, in India, on the basis of a rumor that a United States court had declared Parsees eligible to citizenship.34 Immediately, U.S. Consul at Bombay Wilbur Keblinger was deluged with Parsee immigrant visa applications. "Inasmuch as practically all of the Parsees in the world live in the consular district," he wrote the secretary of state, "it would be appreciated if the Department could inform this Consulate whether or not such a decision has been handed down."35 Though guidance provided to the State Department by the assistant commissioner of naturalization assured U.S. consuls that Parsees remained ineligible to citizenship because they were native to the Asiatic barred zone, a U.S. consul in London continued to be troubled by the case of a Parsee actor who wished to go to Hollywood. The applicant claimed to be Parsee, but not native to the barred zone.36

The level of confusion overseas matched that at home, where racial exclusions to citizenship did not always appear uniform. "Does race or color mean nothing?" asked a resident of Portland, Oregon, who read in his local paper that two Japanese and one Chinese were naturalized by a U.S. court. His newspaper did not explain the three were U.S.-born women who had previously lost their U.S. citizenship by marriage to aliens. Two of the three were Asian Americans. One of the so-called Japanese women was actually of Scandinavian descent and had acquired Japanese nationality and "race" by marriage. All three women, because they were U.S.-born, were allowed to naturalize despite their "race" under special provisions of a law amended by Congress in 1931. Congress again waived racial requirements for citizenship in 1935 when allowing for the naturalization of racially ineligible World War I veterans.37

The confusion of race with nationality became more obvious and problematic for immigration and naturalization officials after a 1933–1934 reorganization of the executive branch recombined the Immigration Bureau and the Naturalization Bureau into one agency, the Immigration and Naturalization Service. Separate since 1913, the two bureaucracies became one devoted to enforcing both immigration and nationality law. That the two used different racial classification systems for procedural and statistical purposes initiated some reconsideration and revision of internal, administrative guidance on the question. As recently as 1930, the Department of Labor concluded that no change could be made to the designation of races and peoples on certain immigration and naturalization forms because the data was required "by law."38 But by the mid-1930s the INS began, at times, to use its administrative discretion to alter its classification of race.

Change began with amendment of the traditional List of Races or Peoples devised by the Immigration Service on Ellis Island in 1898. Internal instructions issued September 11, 1936, announced two changes to the list and four additions. The two revisions illustrated a continuing mixture of race (as color) and nationality on the list. "African (black)" changed to "Negro," no doubt simplifying the classification of blacks from the Caribbean or Central and South America. Previously, blacks from Cuba or the West Indies, for example, were designated as "African" though typically not native to Africa. Another change combined the statistical codes for "Italian (north)" and "Italian (south)."39 In 1898, the northern and southern Italians were classified separately because the list depended heavily on language to identify differing races or peoples. By 1936, international politics held greater sway.

The same change from an ethnic to a political definition of "peoples" can be seen in the four 1936 additions to the list: Albanian, Estonian, Latvian, and Filipino. The Immigration Service had classified Latvians as Lithuanians for nearly four decades. But in 1935 the Latvian consul general began a campaign to convince the commissioner of immigration and naturalization to separate the two groups. His argument was simple: "'Lithuanian' is, of course, not a race, nor are Latvians Lithuanians, nor Lithuanians Latvians."

The North American Manx Association made a similar plea in June 1937, pointing out that the "native race or people of the Isle of Man" were as distinct from the English as were the Irish, Scottish, or Welsh, and deserved similar recognition on the List of Races or Peoples. INS Circular No. 152, of August 12, 1937, announced the addition of "Manx" to the list. And protests from the Mexican government "that Mexicans did not belong to the 'colored' races" caused INS to issue new guidance emphasizing that Mexicans were considered white for immigration and naturalization purposes. A similar response to protests from Brazil in 1942 had INS revising all references to "Spanish American" to read "Latin American."40

By far the most pressing, and embarrassing, item on the List of Races or Peoples in the late 1930s was the term "Hebrew." The American Jewish Committee protested the classification of Hebrew as a race as early as 1930, warning that such "inquisition" into religion by the government was "improper and susceptible of unfortunate abuse." At that time, the solicitor for the Department of Labor wrote a long memorandum on the legal requirement for including race—and Hebrew as a race—on both immigration and naturalization forms. The department found the American Jewish Committee's complaint groundless and rejected their request.41 In the following years, as Nazi persecution of Jews in Europe increased, dissatisfaction with the presence of Hebrew on the list widened and deepened.

Somehow, late in the 1930s, the service was able to amend the procedure for recording race on naturalization (as opposed to immigration) records. Vague references to this change imply that traditional difficulties in "obtaining and recording proper information as to race" caused a revision of forms wherein the applicant no longer stated his race, but chose a racial designation from a list of those eligible to citizenship. This revision occurred prior to passage of the Nationality Act of 1940, evidenced by a May 7, 1940, edition of form A-2214, Application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization. A blank calling for race does not appear on the form until page three, and refers the applicant to instructions listing the choices of white, African or African descent, or Filipino. "State to which one of these classifications you belong."42

All INS naturalization forms were revised after passage of the Nationality Act of 1940. Based on recommendations offered by a presidential committee studying naturalization problems since 1933, the act recodified all (and reconciled much) previous U.S. nationality law. Among proposals associated with the committee were some recommending elimination of any racial requirement for naturalization. Unfortunately, §303 of the new law extended racial eligibility to only one new group: descendents of races indigenous to the Western Hemisphere. Section 303 not only required INS to revise naturalization forms again, it raised a question of reinterpretation of the old §2169. Furthermore, it begged the question: Who are races "indigenous to the Western Hemisphere?"

Recodification of nationality law forced the INS to examine all legal language and reevaluate its administration. It also became an opportunity to reinterpret §2169, which was not repealed but was replaced for INS purposes by §303. Though the 1940 law covered only naturalization, the legislative links between racial eligibility and immigration had been established earlier. Thus any change to racial classification in administration of naturalization could affect racial classification in the immigration arena.

It was with this opportunity in mind that Commissioner of Immigration and Naturalization Earl G. Harrison began his effort to remove Hebrew from the immigration List of Races or Peoples. Two months after taking office, Harrison asked Henry Bernard Hazard, an immigration and nationality law expert and director of the service's Research and Education Division, to review the practice of racial classification on INS forms and answer the question of whether "'Hebrew' was a race." After more than thirty years of working to standardize immigration and naturalization, Hazard may have shared Harrison's obvious desire to excise the word "Hebrew" from official forms. In any event, Hazard quickly submitted a long analysis of the question, concluding that Jews or Hebrews could not properly be considered a race, "at least not in the sense in which that term is used in the immigration law."43

More important, Hazard concluded that both "race" and "peoples" were subject to administrative determination under naturalization and immigration law. In his review of immigration's list, Hazard noted that the law required a record of each arriving immigrant's race but "has nothing to say about 'the people' to whom the alien may belong. The enlargement of the classification . . . to include 'peoples' appears to have been made arbitrarily, possibly because of the difficulty in determining just what the term 'race' might imply." Similarly, concerning the Nationality Act of 1940, Hazard concluded that neither the law nor regulations defined the term "race." As a result, whatever system the INS used to classify or supply race on naturalization forms was "a matter resting in administrative discretion." One year later, the term "Hebrew" no longer appeared on immigration forms and papers.44

Another area where the INS increased its use of administrative discretion related to racial eligibility to naturalization. As has been shown, the courts traditionally admitted or denied racially ineligible aliens during court proceedings, either according to or despite INS objections. But developments in administrative law generally began to provide INS officers with opportunities to make decisions outside the courtroom. The cases of Majid Ramsay Sharif (Shariph) and Noshad Khan are illustrative.45

Sharif, an Arab, applied for an immigration visa in 1941 but was denied as an alien racially ineligible to citizenship. Khan, an Afghan resident of the United States since 1926, faced deportation charges in 1941 for illegal entry but applied for discretionary relief as his deportation would be a hardship on his U.S. citizen wife and children. Whether the INS could afford relief to Khan and adjust his immigration status depended on whether an Afghan was racially eligible to naturalize. In both cases, because they were not petitions for naturalization, the questions went not to the courts but to the Board of Immigration Appeals (BIA).46 Administrative law could now determine the question of racial eligibility.

In Sharif's case involving the eligibility of an Arab, the board, like the courts, relied on the Thind decision. Unlike the courts, the BIA was persuaded by a brief for the U.S. government in the Thind case that argued that "whiteness," for lack of a better term, is associated with Western civilization, and Western civilization includes "so much of the Near East as contributed to, and was assimiliable with, the development of Western Civilization of Greece and Rome." Having recalled the cultural link between the ancient and modern western worlds, the board concluded "that it was not intended, either in 1790 at the time of the first enactment of the governing statute or certainly in 1940 at the time of its last enactment, that Arabians be excluded from the group of 'white persons'."47 Unless one is prepared to believe immigration officials were naturally more benign that Supreme Court justices, the Sharif case demonstrates a changed "common understanding" in 1941 from that which persuaded the court in 1923. Upon revisiting the Thind decision, the BIA came to an opposite conclusion.

The board exhibited equal flexibility in the case of Noshad Khan, which had to overcome the 1928 In re Feroz Din decision that Afghans were not white persons. To do so, the BIA questioned whether Americans had any "defined popular or common understanding" of Afghans given there were only an estimated two hundred Afghans then living in the United States. Without any popular guide, the board turned to ethnologists who provided evidence that "an Afghan is the exact prototype of the Persian." Since Persians had always been considered racially eligible to naturalize, Afghans would be as well. Because it departed so far from case law, the BIA forwarded its Khan decision for approval by the attorney general, who in turn requested the opinion of the INS. After the INS legal office supported the Khan decision, the attorney general approved it on May 26, 1945.48 Afghans had thus been found eligible to naturalize and to immigrate despite the opinion of, and without the participation of, the courts.

INS changes to the classification of race and administration of racial provisions in immigration and nationality law reflected changes in American thinking or "common understanding." During the Seventy-eighth Congress, in 1942 and 1943, eleven different bills were introduced proposing elimination of racial barriers to naturalization. While most of the bills only aimed to remove the bars to Filipino, Korean, or East Indian naturalization, they indicated a willingness or desire on the part of the American people to liberalize a restrictive policy maintained since 1924.49 It should not be forgotten that changes to naturalization at home during World War II coincided with administrative naturalization of soldiers serving in the U.S. Armed Forces overseas. Since the First World War, Congress maintained legal provisions facilitating the naturalization of U.S. soldiers despite racial ineligibility. During World War II, the practical and propaganda value of naturalization ceremonies held in Europe, North Africa, and the Pacific, in which representatives of all corners of the earth came together to pledge themselves to American ideals, fostered the image of the United States as the defender of democracy worldwide. But they also stood in uncomfortable contrast to continuing racial exclusions to citizenship on the home front.

Unlike American attitudes toward race, INS statistical methods in 1940 remained much the same as they had been at the turn of the century. The ability, willingness, or practicality of changing INS racial classification and coding depended on the service's perception of its legal requirements to record and report racial statistics. That the INS could alter or amend its statistical system became clear in the late 1930s, when additions and changes were made to the List of Races or Peoples. Further change became possible after the realization, stated in Henry B. Hazard's 1942 memorandum to Commissioner Harrison, that "race" and "people" were not defined by law but by administrative practice.

The evidence that INS administrators were dissatisfied with the agency's racial classification systems, shown by the revision of naturalization forms and elimination of Hebrew from the List of Races or Peoples, makes another INS decision of the time appear even more curious. The Alien Registration Act of 1940 charged the INS with myriad new responsibilities, foremost among them the registration and fingerprinting of every alien resident in or entering the United States. The law specifically directed the commissioner to design a form for that purpose, a form that had to include the alien's date and place of entry, their present and future activities within the United States, how long they expected to remain, and any criminal record. Any additional information on the form was left to the discretion of the commissioner and the attorney general.50 The Alien Registration Program thus afforded the INS an opportunity to eliminate the question of race from at least part of its operations.

Rather than avoid the traditional problems of recording race, the INS compounded them by designing a form with five choices for the registrant: White, Negro, Japanese, Chinese, and Other. The reasons behind this choice are, for the moment, inexplicable. The racial options did not correspond to either the List of Races or Peoples, nor did they match those races then eligible for naturalization. Neither would they help or serve to identify anticipated enemy aliens should the United States be drawn into the expanding war in Europe and Asia. They were, as one employee of the Alien Registration Division complained, "a mixture of race and nationality." Unwritten statistical coding rules for Alien Registration data caused various responses to be re-coded as white, and so many disparate answers remained in the "other" category it was rendered meaningless. "For statistical purposes the race code in present use is worthless," reported the coding section, and "the fault lies in the confusion of race and nationality for this item on the registration forms." Not surprisingly, when finally published, the Alien Registration data tables contained no information as to race.51

The INS would not be free of racial considerations, of course, as long as nationality law contained racial requirements for naturalization and immigration law excluded those ineligible to naturalize. While Board of Immigration Appeals decisions began to clarify the meaning of "white persons" for INS officials, Congress at the same time introduced equally confusing language to §303 of the nationality law (the section replacing §2169 in 1940). As noted above, the Nationality Act of 1940 extended eligibility to citizenship to "descendents of races indigenous to the Western Hemisphere." In 1943 Congress repealed the Chinese Exclusion Act and made Chinese eligible for naturalization. And in 1946, Congress extended the same eligibility to Filipinos or persons of Filipino descent and "persons of races indigenous to India."52 Again, language sufficiently clear for Congress came into question in the courts. Just as they previously wrestled with the meaning of the term "white persons," the courts and INS were now called upon to determine the exact limits of the Western Hemisphere, and to decide which races were indigenous to India.

When Congress included descendents of races indigenous to the Western Hemisphere in the Nationality Act of 1940, it was understood by Congress and INS officials the intention was to make Native Americans eligible to citizenship.53 But the provision was soon adopted to support the petitions of various Pacific Islanders for naturalization. A Polynesian born in the Society Islands applied for citizenship in California in 1944, claiming to be of a race indigenous to the Western Hemisphere. The court came to two conclusions. First, though the Society Islands may in fact be within the Western Hemisphere, ethnologists traced the origin of the Polynesian race to the Eastern Hemisphere and the applicant was thus ineligible for naturalization (note well: The exact opposite of this argument supported the 1925 Ali decision). Second, there seemed no common understanding of the term "Western Hemisphere."54

The same question came before the INS in relation to immigration procedures. Noting that conventional maps placed New Zealand in the Western Hemisphere, the Department of State requested an INS decision on whether Maoris, native to New Zealand, now qualified for immigration visas or if they were still ineligible to citizenship. The INS general counsel, L. Paul Winings, began his long consideration of the subject by first determining that Maoris were neither white persons nor persons of African nativity or African descent. He then

    sought to discover the prevailing geographical opinion concerning the limits of the Western Hemisphere. However, this quest led me to the conclusion that there is no universally accepted formula which fixes the bounds of the so-called Western Hemisphere. Most of the authorities consulted had no reference whatever to the Western Hemisphere, and by this silence eloquently proclaimed their rejection of any such geographic formula.

Cartographers' conventions, it seemed, were no more reliable than those of the ethnologists.

Winings was left to trace Congress's original intent in the use of the words "Western Hemisphere." He found that since adoption of the phrase in connection with the Monroe Doctrine in the 1820s, Western Hemisphere referred to North, Central, and South America and islands adjacent thereto. Such was the case not only in foreign policy statements, but also in international trade agreements and, most important, in immigration law. Certain immigration law exemptions applied to natives of Western Hemisphere countries had long been interpreted by the INS as applying to natives of the Americas and adjacent islands. Winings concluded, then, that Congress in neither 1790 nor 1940 intended Maoris to be eligible for naturalization.55

Congress became aware of the problems associated with the vague phrase "Western Hemisphere" and in July 1946 amended §303 to read "persons who are descendants of races indigenous to the continents of North or South America or adjacent islands." However, the lesson had apparently not been learned, for the same act extended racial eligibility to "persons of races indigenous to India." Within weeks of the provision's enactment, Mary P. Clark of the INS Hearing Review Unit realized "the difficulty to be encountered in interpreting the recent amendment."

Committee reports, usually helpful in revealing congressional intent, in this case stated only that while the amendment applied to East Indians, it was not meant to be limited to persons born in India. And, as had been the case for some time, ethnological texts offered no "workable yardstick." Fearing questions from the State Department on the issuance of visas to Indians, Clark suggested the INS preemptively request an official interpretation from the secretary of state. That INS considered the new §303 to present "a very serious problem of interpretation" was obvious in other Hearing Review Unit correspondence, where one official expressed his wish that "Congress had had the good sense . . . to have abolished ineligibility for citizenship on account of race altogether. When they have admitted, or rather made eligible, the negroes, Chinese, and East Indians, in my opinion it is folly to retain others on the list of ineligibles."56

The repeal of Chinese exclusion and extension of naturalization eligibility to Chinese in 1943 presented relatively fewer problems of interpretation. One case involving the question of Chinese race, however, did demonstrate that the old ideas underlying INS racial classification schemes were becoming as foreign to INS officers as they were to many of the immigrants. H. J. Hart, chief of the INS's Nationality and Status Section in San Francisco, became ever more perplexed over the 1951 case of a native of Indochina. The applicant himself, whose mother was Chinese, was baffled by questions regarding the race of his father. The naturalization examiner's questions had little meaning for the man, whose father was apparently ethnic Chinese but native to Tonkin. The case was easily decided because the applicant was predominantly Chinese and therefore eligible to naturalize. What troubled Chief Hart was the lack of recent or reasonable guidance on such questions. He did consult the Dictionary of Races or Peoples, printed by the INS in 1911 as an ethnological guide to racial classification, which identified the Indochinese as East Asian. After reading the dictionary, Hart concluded that continued use of the forty year-old guide "hardly appears to be tenable."57

By that time the presence of racial qualifications and exclusions in US nationality and immigration law had become untenable. INS Assistant Commissioner Allen Devaney responded to Chief Hart's dilemma by informing him of pending legislation that promised to eliminate racial eligibility for immigration and naturalization purposes. "If that bill is passed," Devaney explained, "questions, such as the present one, will become academic."58 The service, like the courts and the nation, had grown tired of determining racial eligibility and pressed for passage of the new Immigration and Nationality Act (INA). The bill became law on June 27, 1952, and for the first time codified immigration and nationality provisions into one comprehensive body of law.

As with Congress's expansion of racial eligibility in 1940 and 1946, major changes to the law in 1952 posed major problems for the INS. In 1949, when Congress entertained other proposals to remove racial requirements for naturalization, Assistant Commissioner Devaney then warned INS officers of the consequences of change "with respect to a matter that has been on our law books since the beginning of legislation on the subject early in our history." It was estimated that removing racial bars to citizenship would suddenly make more than eighty thousand people within the United States racially eligible to naturalization. But because of racial restrictions in the immigration law since 1924, not all eighty thousand would immediately qualify. Many would have to apply to the INS for relief and adjustment of status. By itself, the 1952 act's elimination of race as a consideration had staggering implications for INS immigration and naturalization workload. "The attendant problems which will arise," wrote Devaney, "are obvious."59

Of course, any "attendant problems" were short-lived for INS, which in 1952 adopted an entirely different scheme to classify immigrants and nonimmigrants. But the legacy of racial classification remains—in the memories of some, in the current experience of others, and in contemporary controversies over racial classification systems still employed by the US Census Bureau or university admissions offices. Most classification schemes in use today are justified as tools to describe a population or to rectify past discrimination. Yet the schemes themselves are largely products of the history just recounted here.

The case of Mostafa Hefny is a good example. In 1997 in Detroit, Michigan, Egyptian immigrant Hefny filed suit against the US government for classifying him as racially white when he was obviously black. This classification resulted from use of the obsolete Office of Management and Budget Directive #15, "Race and Ethnic Standards for Federal Statistics and Administrative Reporting," which classified Egyptians as white. Egyptians had long been considered eligible for naturalization by the courts, and the reader will recall how the Board of Immigration Appeals' 1941 reconsideration of the Thind decision in the Sharif case declared natives of the cradles of Western Civilization to be "white persons." In the early twentieth century, classification of Egyptians as white opened the door to their naturalization and no doubt other opportunities. But in 1997, Hefny complained this same classification made him ineligible for opportunities and benefits available only to minorities. Clearly, late twentieth-century changes in "common understanding" continue to add new dimensions to official-and unofficial-classifications of race.60

The history of "race" in relation to immigration and nationality law is but one example of the difficulties inherent in writing or administering legislation that employs vague concepts about which the nation is either confused, conflicted, or for which Americans do not have a concrete, constant definition. Today, legislators hear from constituents demanding action against "illegal" aliens, "terrorists," or otherwise "undesirable" immigrants. Yet even these terms exist without commonly agreed-upon definitions, without any "common understanding." The problem, at base, is the same as in 1790 when nationality law restricted naturalization to "white persons" or in 1875 when immigration law first referred to the exclusion of "obnoxious persons." Attempts to apply such provisions over two centuries invariably resulted in cases referred to the courts or administrative tribunals for reinterpretation of the statutes. Continuous efforts to refine and define Congress's original intent or to incorporate the "current understanding" of the people have given US immigration and nationality law its Byzantine nature, characterized by provisos and exemptions, each born from the case of some immigrant who confronts us with issues we, or the founding fathers, did not anticipate or comprehend.

***

1 Steerage Act of March 2, 1819, 3 Stat. 489 (1819).

2 Act of March 26, 1790, 1 Stat. 103; Act of 1795, 1 Stat. 414; Act of June 18, 1798, 1 Stat. 566; Act of April 12, 1802, 2 Stat. 153.

3 Act of July 14, 1870 (amending §2169 Rev. Statutes).

4 Chinese Exclusion Act of May 6, 1882, §14, 22 Stat. 58.

5 Ian F. Haney Lopez, White by Law: The Legal Construction of Race (1996), p. 50.

6 US v. Wong Kim Ark, 169 US 649 (1898).

7 Marian L. Smith, "The INS and the Singular Status of North American Indians," American Indian Culture and Research Journal 21 (1997): 131-154.

8 Statistical Rules, 1898, file 52729/ 9, box 143, Entry 9, Records of the Immigration and Naturalization Service, Record Group (RG) 85, National Archives Building (NAB), Washington, DC. Patrick Weil provides additional interpretation of the List of Races and Peoples in "Races at the Gate: A Century of Racial Distinctions in American Immigration Policy (1865-1965)," Georgetown Immigration Law Journal 15 (Summer 2001): 625-648.

9 Victor Safford to the Commissioner of Immigration, June 8, 1898, file 52729/9, box 143, Entry 9, RG 85, NAB.

10 Immigration Act of March 3, 1903, §12, 32 Stat. 1213. Section 12 required that race be included among the information provided on immigration manifests, a requirement included in subsequent immigration laws.

11 James R. Gray, Clerk, US District Court, St. Louis, to the Secretary of Commerce and Labor, Jan. 1, 1907, file 19783/1-24, box 1572, Entry 26, RG 85, NAB.

12 Richard K. Campbell to Charles D. Thompson, Dec. 7, 1907, ibid.

13 Campbell to Andrew J. Balliet, Aug. 6, 1908, file 19783/1-24 (19783/13), box 1572, Entry 26, RG 85, NAB.

14 J. W. Porter to Chief, Division of Naturalization, Sept. 29, 1908, file 19783/1-24 (19783/16), box 1572, Entry 26, RG 85, NAB.

15 Campbell to Porter, Oct. 19, 1908, ibid.

16 Justin S. Kirrah to Secretary of Commerce and Labor, Nov. 1, 1909, file 19783/43 part 1, box 1572, Entry 26, RG 85, NAB.

17 Simon Wolf to Secretary of Commerce and Labor, Nov. 5, 1909, ibid.

18 Charles Nagel to Campbell, Nov. 11, 1909, and Campbell to all Chief Naturalization Examiners, Dec. 3, 1909, ibid.

19 US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1917 (1917), p. 11.

20 Report of Robert A. Coleman, Chief Naturalization Examiner, St. Paul, MN, to Campbell, July 1, 1910, file 457177 part 1, box 1698, Entry 26; Acting Secretary of Commerce and Labor to Secretary of Interior, Jan. 8, 1909, file 19783/18, box 1572, Entry 26, RG 85, NAB.

21 Correspondence re Carmen Garcia (1909), file 19783/20, box 1572, Entry 26, RG 85, NAB.

22 Assistant US Attorney, Seattle, to Chief, Division of Naturalization, July 28, 1908, file 19783/13, box 1572, Entry 26, RG 85, NAB.

23 Campbell to Balliet, Aug. 6, 1908, file 19783/1-24 (19783/13), box 1572, Entry 26; Campbell to John Young, Clerk, US Supreme Court, file 19783/1-24 (19783/14), box 1572, Entry 26, RG 85; Campbell to Charles R. Beattie, July 19, 1909, file 19783/25, box 1572, Entry 26, RG 85, NAB; US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1916 (1916), p. 7.

24 Ozawa v. US, 260 US 178 (1922).

25 US Immigration and Naturalization Service, Nationality Interpretation 311.1(a) (TM Feb. 23, 1967), Operations Instructions and Interpretations (periodical).

26 US v. Thind, 261 US 204, 214-215 (1923).

27 The barred zone applied to natives of an area including, roughly, the East Indies, Western China, French Indochina, Siam, Burma, India, Bhutan, Nepal, Eastern Afghanistan, Turkestan, and the Kirghis Steppe and southeastern portion of the Arabian peninsula. Such natives were inadmissible as immigrants to the United States. Trent Doser, "Excludable Aliens," Course of Study for Members of the Service (unpublished INS training lecture), Jan. 23, 1943 (INS History Office and Library, 425 I Street NW, Room 1100, Washington, DC, 20536).

2 US v. Thind, 261 US 204, 215 (1923).

29 In the Matter of S--- (Exclusion proceedings, 56071/165), Oct. 18, 1941. 1 I&N 174.

30 US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1923 (1923), p. 11.

31 "Eligibility of Arabs to Naturalization," INS Monthly Review, 1 (October 1943): 13.

32 In re Feroz Din (27 F 2nd 568), quoted in 2 I&N 255-56.

33 Immigration Act of May 26, 1924, §13(c), 43 Stat. 153.

34 A Parsee was admitted to citizenship in 1910 (US v. Balsara, 180 F. 694), but that decision had been overturned by the Thind decision in 1923.

35 Wilbur Keblinger, US Consul, Bombay, to Secretary of State, Feb. 14, 1930, file 19783/43 part 2, box 1573, Entry 26, RG 85, NAB.

36 John K. Davis, US Consul, London, to Secretary of State, Mar. 25, 1920; Assistant Secretary of State Wilbur Carr to Secretary of Labor, Aug. 15, 1930; Assistant Secretary of Labor W. W. Husband to Secretary of State, Aug. 25, 1931, file 19783/43 part 2, box 1573, Entry 26, RG 85, NAB.

37 Jas. Sullivan to Commissioner of Naturalization, Mar. 1, 1932, and Commissioner of Naturalization to Sullivan, June 18, 1932, file 16/gen, Entry 26, RG 85, NAB; Act of March 3, 1931, §4, 46 Stat. 1511; Act of June 24, 1935, 49 Stat. 397.

38 "In re classification of races on naturalization and immigration forms," memorandum for the Secretary of Labor from Department of Labor Solicitor Theodore G. Risley, July 16, 1930, file 79/53, box 1280, Entry 26, RG 85, NAB.

39 INS General Order No. 162, Amendment of immigration statistical list of races or peoples, Aug. 4, 1936; INS Circular No. 28 [amending statistical punch card symbols], Sept. 11, 1936, file 55882/926, box 726, accession 85-58A734, RG 85, NAB.

40 Ibid.; Latvian Consul General Arthur Lule to the Commissioner of Immigration and Naturalization, May 11, 1935; North American Manx Association to the Commissioner of Immigration and Naturalization, June 1937; INS Circular No. 152 of August 12, 1937; Memorandum re whether the Hebrews are a race [Henry B. Hazard], Nov. 5, 1942, p. 41; INS Instruction No. 48, Changes in phraseology to be observed in connection with various immigration forms, Mar. 12, 1942, file 55882/926, box 726, accession 85-58A734, RG 85, NAB.

41 "In re classification of races on naturalization and immigration forms," memorandum for the Secretary of Labor from Department of Labor Solicitor Theodore G. Risley, July 16, 1930, file 79/53, box 1280, Entry 26, RG 85, NAB.

42 INS Instruction No. 177, Designation of race in immigration procedures, Nov. 8, 1943, file 55882/926, box 726, accession 85-58A734, RG 85, NAB; Form A-2214, Application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization, edition of May 7, 1940 (INS History Office, Washington, DC).

43 Memorandum for Dr. Hazard from Earl G. Harrison, Sept. 17, 1942; Memorandum, Hazard to Harrison, Nov. 5, 1942, file 55882/926, box 726, accession 85-58A734, RG 85, NAB.

44 Memorandum, Hazard to Harrison, Nov. 5, 1942, p. 7, 41; INS Instruction No. 177, Designation of race in immigration procedures, Nov. 8, 1943, ibid.

45 Matter of S--- (Exclusion proceedings, 56071/165), Oct. 18, 1941, 1 I&N 174; Matter of K--- (Deportation proceedings, 56065/802), Jan. 25, 1945, 2 I&N 253.

46 The BIA was originally created as the Board of Review at INS Central Office in Washington, with the purpose of helping the commissioner decide an avalanche of appeal cases forwarded to the commissioner after implementation of the 1924 Immigration Act. Strengthened by the Administrative Procedures Act after 1940, the board became the Board of Immigration Appeals (BIA). In the 1980s the BIA was moved out of INS to the Department of Justice, where it now exists as the Executive Office of Immigration Review (EOIR).

47 Matter of S--- (Exclusion proceedings, 56071/165), Oct. 18, 1941, 1 I&N 178-79; INS Instruction No. 168, Central Office view on the racial qualifications for entry and naturalization with respect to persons of the Arabian race, Sept. 9, 1943.

48 Matter of K--- (Deportation proceedings, 56065/802), Jan. 25, 1945, 2 I&N 256-59; "Recent Decisions of the Board of Immigration Appeals," INS Monthly Review, 3 (October 1945): 215.

49 Edward J. Shaughnessy, "Immigration and Naturalization Legislation in the Seventy-Eighth Congress," INS Monthly Review, 2 (July 1944): 12.

50 Alien Registration Act of June 28, 1940, §34(a), 54 Stat. 670.

51 Memorandum re Coding "Race"-Item 5(c), Mrs. Delin to Mr. Charlesworth, Apr. 5, 1944, Alien Registration Statistics File; "Alien Registration, 1940," 11 vols. (original tables, INS History Library, Washington, DC).

52 Nationality Act of October 14, 1940, 54 Stat. 1137; Act of December 17, 1943, 57 Stat. 601; Act of July 2, 1946, 60 Stat. 416.

53 Nationality Laws of the United States. A Report . . . in Three Parts. Part 1, Proposed code with explanatory comments (1939) V-VII; Memorandum re Racial eligibility for naturalization of Maoris, L. Paul Winings to Commissioner Ugo Carusi, Apr. 27, 1945, 14, file 56013/383, box 1596, accession 85-58A734, RG 85, NAB. See also M. Smith, "The INS and the Singular Status of North American Indians."

54 "Summaries of Recent Court Decisions," INS Monthly Review, 2 (October 1944): 44.

55 Such exemptions involved Head Tax since the 1890's, Visa requirements since 1921, and travel control provisions since 1918. Memorandum re Racial eligibility for naturalization of Maoris, L. Paul Winings to Commissioner Ugo Carusi, April 27, 1945, p. 14, file 56013/383, box 1596, accession 85-58A734, RG 85, NAB.

56 Memorandum, Mary P. Clark, Hearing Review Unit, to Assistant INS Commissioner Joseph Savoretti, July 24, 1946 (Clark would later become a member of the Board of Immigration Appeals); Memorandum, G.W. Stilson to E. U. Hover, Chief, Hearing Review Unit, n.d. [July 24, 1946], file 56193/578, box 2843, accession 85-58A734, RG 85, NAB.

57 H. J. Hart, Chief, Nationality and Status Section, San Francisco, to Acting Commissioner of Immigration and Naturalization, Washington, DC, Jan. 18, 1951, file 56193/578, box 2843, accession 85-58A734, RG 85, NAB; Dictionary of Races or Peoples, Reports of the Immigration Commission, vol. 5, S. Doc. 662, 61C, 3s (1911).

58 Allen C. Devaney, Assistant Commissioner, Adjudications, to the San Francisco District Director, Mar. 13, 1951, file 56193/578, box 2843, accession 85-58A734, RG 85, NAB.

59 Devaney, "Typical Problems and Latest Developments in Naturalization Proceedings," INS Monthly Review 7 (October 1949): 51.

60 "Black or white? Egyptian immigrant fights for black classification," CNN, July 16, 1997. Hefny's story, as reported on www.cnn.com and in Jet magazine, included Hefny's contention that it was the INS who classified him so under an "INS Bulletin." Calls to this writer in the early 1990s raised the issue and led to a merry chase with bizarre results. INS never issued such a bulletin; in fact, INS did not issue guidance regarding race after 1952. Rather, the guilty document was Office of Management and Budget (OMB) Circular A-46, Directive #15, first issued on May 3, 1974. It seems the directive was not well received and was revised May 12, 1977, then finally rescinded by OMB on April 13, 1978. The OMB stressed that the directive was obsolete, had not been in effect for two decades, and was not available. Continued searching turned up one copy of the directive still at hand in the Census Bureau. Hefny encountered the directive in use by his state government in the 1980s.


About The Author

Marian L. Smith is the senior historian for the U.S. Immigration and Naturalization Service, Washington, D.C. She writes and speaks about the history of the agency. The author thanks Roger Daniels of the University of Cincinnati for his encouragement and good advice in the writing of this article. Readers may contact Ms. Smith at Marian.L.Smith@usdoj.gov.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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