A Brief History of U.S. Immigration Law

By Michelle Martin, PhD, MSW

---

​I’m in the process of writing a summary of the pertinent legal issues involved in the family separations that occurred among the Central American political asylum-seekers at the southern border. In the process, I realized the importance of providing some background on our country’s immigration laws. By the time I was done, I had over 4500 words! So I decided to split this post into two posts (you're welcome! 😉). This post will focus on a brief history of key immigration laws in our country, and the second post will focus on the Flores Settlement Agreement, and post-settlement decisions, including the ruling of the 9th Circuit Court of Appeals.
 

Immigration policy in the United States is developed in three primary ways:

• Through the passage of legislation, and reauthorizations (which is a form of amending/updating laws, usually every few years),
• Through presidential Executive Orders, and
• Through judicial decisions (or settlement agreements) in response to lawsuits filed against the government and its representatives (Attorney General, Department of Homeland Security, etc.).

 
So for the most part, federal legislation establishes a legal framework, with executive orders and court decisions determining how the laws are to be interpreted and implemented. We have had no new immigration laws passed since Trump became  president, and yet most people would agree that how the laws are being interpreted and implemented have changed pretty dramatically.
 
The laws that govern who can come into our country have changed over the years, depending on our country’s economic needs, humanitarian need and our various foreign policy stances. An example of U.S. immigration policy based on economic need is the Bracero program, which brought in Mexican laborers to work in our fields for very low wages, from 1942 to 1964.
 
An example of U.S. immigration policy based on humanitarian need and/or U.S. foreign policy stance is the development of special programs that place certain groups of immigrants (refugees and political asylum-seekers) into priority status, such as giving Cuban refugees priority during the “Cold War,” and prioritizing Syrian refugees (up until the ban).
 
While this isn’t an exhaustive list, I’ve summarized key immigration policies below, outlining the basic goals for each:
 
The Immigration Act of 1924 (passed under Calvin Coolidge - R)

• First federal law that set quotas on immigration from certain countries,
• Provided funding for banning what were considered at the time “non-white immigrants” (Italians, Jews, Arabs, and Asians),
• Allowed for unlimited Latin American immigration (primarily due to the economic need for low-cost labor),
• Allowed unlimited immigrants from northwestern Europe (England, Ireland, France, etc.),
• The stated purpose of this act was "to preserve the ideal of American homogeneity.”

 
The Nationality Act of 1952 (Bipartisan bill signed into law by Harry Truman - D)

• Amended parts of the 1924 Act, by establishing additional parameters for how people could come into the country,
• National-origin quotas were established, which continued the practice of prioritizing immigrants from northwestern Europe,
• Made the first illegal entry into the country a misdemeanor,
• Although the Act was sponsored by Dems and passed by a Dem-controlled Congress, Truman (also a Dem) tried to veto it because he thought it was too harsh and generally un-American because it specifically targeted Eastern Europeans for exclusion.

The Immigration and Nationality Act of 1965  (bipartisan bill initiated under Truman - D, passed under Johnson – D)

• Amended parts of the 1952 Act, by ending the national-origin quota system that discriminated against immigrants based on place of birth,
• Maintained the per-country limits, but created preference categories based on skills and family relationships,
• Immigration of people who already had family settled in the country were prioritized, and certain skills and vocations were also prioritized based U.S. labor market needs.

 
The Refugee Act of 1980 (bipartisan amendment signed into law by Jimmy Carter – D)

• Amended Title IV of the Immigration and Nationality Act of 1965.
• Created a systematic way of admitting refugees into the country
• Codified a definition of a “refugee,”
• Established an annual cap of refugee admission through the UNHCR program to 50,000 (although the Attorney General can increase the cap by 5000 per year). Also, the cap has increased over the years,
• Created the Office of Refugee Resettlement (ORR),
• Note: this law, while having an impact on political asylum-seekers by defining “a refugee,” pertains more to the UNHCR refugee program. It’s also interesting to note that Trump lowered the annual threshold to 21,000, violating U.S. agreements with the United Nations and our international partners.

 
Immigration Reform and Control Act of 1986 (IRCA) (bipartisan bill passed under Reagan - R)

• First legislative attempt to address undocumented immigration
• Granted one-time amnesty for 3 million undocumented immigrants who entered the country before January 1982
• Increased border security
• Made knowingly hiring undocumented immigrants illegal
• Created the H-2A visa for temporary agricultural employment
• Did not create new pathways for legal immigration from Mexico, so is criticized among some immigration experts

 
Immigration Act of 1990 (Drafted by Kennedy in 1989, signed by Bush I - R)

• Major overhaul of immigration legislation in 25 years
• Increased the overall immigrant quota to 700,000
• Provided family-based immigration visa,
• Created five distinct employment based visas, emphasized an attempt to use immigration as a way of addressing the country’s future economic needs
• Created a lottery to admit immigrants from "low admittance" countries

 
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (passed under Clinton – D)

• Made sweeping changes to our immigration laws with a focus on fighting undocumented immigration
• Broadened the list of deportable offenses for undocumented and documented immigrants (including legal permanent residents) to include non-violent minor offenses, such as marijuana possession and shoplifting.
• Provisions to fight smuggling of immigrants
• New policies regarding exclusion and deportation
• Created the expedited removal process for certain categories of immigrants, including any immigrant who entered the country without documentation,

• Created an interim screening process involving a credible fear interview for certain categories of asylum-seekers.
• Increased border control by imposing criminal penalties for racketeering, alien smuggling and the use or creation of fraudulent immigration-related documents,
• Increased interior enforcement including better monitoring of visa applications and visa overstays,
• Required employment eligibility verification (and established sanctions for those employers who failed to comply with regulations and restrictions)
• Provided that the Act applied retroactively, thus any legal permanent resident or visa holder with minor criminal offenses were subject to deportation (the Supreme court struck this down),
• Provided that INS had the power to hold immigrant detainees indefinitely (the Supreme Court struck this down),
• Required higher education institutions to charge undocumented immigrants out-of-state tuition, and if they refused, they had to charge everyone across the nation in-state tuition,

 
In addition to dramatically increasing border enforcement and penalties, the IIRIRA also had a significant Impact on asylum law, by

• Requiring political asylum-seekers to apply for asylum within one year of arrival,
• Establishing summary deportation procedures, including “expedited removal” and “reinstatement of removal” processes, which often create barriers for asylum seekers who may be deported before they have a chance to understand their legal rights to apply for asylum,
• Many immigration experts believe that the IIRIRA has placed significant and unfair burdens on the asylum-seeking process, such as failing to properly screen for valid asylum cases. 

 
Homeland Security Act of 2002 (passed during the Bush II administration).

• Passed in response to 9/11 terrorist attacks
• Was much stricter than prior legislation
• Increased penalties for unauthorized entry

• Led to the development of the Department of Homeland Security (DHS) and the Immigration and Customs Enforcement (ICE), which replaced INS.
• The Office of Refugee Resettlement (ORR) was moved to under the Department of Health and Human Services (DHHS).

 
There are some additional immigration laws that have passed, that while they are not comprehensive, are important such as the Enhanced Border Security and Visa Entry Reform Act of 2002, and the Real ID Act of 2005. The DREAM Act, which would provide a specific cohort of immigrants who came to the United States when they were children a path to citizenship, has not yet passed.
 
In summary, our immigration laws have increasingly become more strict, with a growing focus on controlling undocumented immigration. How these laws are interpreted and implemented is determined for the most part by court rulings when the government and its agencies are sued on behalf of immigrants (class action suits). When a ruling is made on a class action case, that ruling then becomes national policy.

Not all of these laws have an impact on our current situation with the Central American refugees (particularly the older ones), but many of the newer ones do have an impact. It's also helpful to see how the priorities, concerns and goals have shifted over the years, including how some Republican and Democrat presidents have actually had very similar stances with regard to immigration priorities, and stances on undocumented immigration. 
 
My next post will attempt to make sense of the various laws the Trump administration is relying on in making decisions pertaining to the Central American political asylum-seekers at the border….