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Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Part 4 of 8

by Marian L. Smith

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.

[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).

[28] 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.

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

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