To Be An American. Bill Ong Hing

Patrol officers could stop motorists in the general area of the Mexican border for brief inquiry into their residence status if there was reasonable suspicion that passengers were undocumented. Next in 1976 in United States v. Martinez-Fuerte,³⁷ the Court carved an exception to the Fourth Amendment’s protection against unreasonable search and seizure, by allowing the Border Patrol to set up fixed checkpoints located on major highways away from the Mexican border for purposes of stopping and questioning individuals suspected of being undocumented aliens. Then in 1984 in INS v. Lopez-Mendoza,³⁸ the Court held that even if the INS violated the Fourth Amendment’s protection against illegal search and seizure in its apprehension of undocumented aliens, illegally obtained evidence could still be used against the aliens in deportation proceedings.

      THE HAMMER FALLS AGAIN ON OTHER IMMIGRANTS

      The history of anti-immigrant sentiment that was manifested in local and state laws directed against documented immigrants such as alien land laws and foreign miners’ taxes has modern corollaries that attempt to limit certain occupations and professions to citizens. As a general rule, such state restrictions have been deemed unconstitutional by the Supreme Court. For example, in In re Griffiths³⁹ the exclusion of lawful permanent residents from the practice of law in Connecticut was invalidated, and in Sugarman v. Dougall,⁴⁰ a New York law providing that only U.S. citizens could hold permanent state civil service positions was struck down. However, the protection that the Court had provided in this area began to erode around the time that more flexibility was being given to INS enforcement activities. Beginning with Folie v. Connelie ⁴¹ in 1978, the Supreme Court has deferred to the states requiring U.S. citizenship when the government job entails a public function, or involves the “formulation, execution, or review of broad public policy.” Thus, in Folie, the Court held that New York could bar aliens from holding state law enforcement positions. A year later in Ambach v. Norwick,⁴² the Court ruled that public schoolteaching (even teaching French in high school!) fell within the public functions exception and could be limited to citizens as well.⁴³

      The clamoring and complaining about immigration has not only been about Mexicans, of course. Consider the reaction to Southeast Asians on refugee policy. The 1952 overhaul of the immigration laws granted the attorney general discretionary authority to “parole” into the United States any alien for “emergent reasons or for reasons deemed strictly in the public interest.” Although the original intent was to apply this parole authority on an individual basis, the 1956 Hungarian refugee crisis led to its expanded use to accommodate those fleeing communist oppression. The parole authority was also used to admit more than 15,000 Chinese who fled mainland China after the 1949 communist takeover and more than 145,000 Cubans who sought refuge after Fidel Castro’s 1959 coup.

      The satisfaction of policymakers with the status quo began to evaporate with the upsurge in Asian entrants that started in the mid-1970s. The watershed event was the fall of Saigon in April 1975. Initially, the United States merely wanted to evacuate fewer than 20,000 American dependents and government employees. However, to invoke numerical restrictions in the midst of a controversial and devastating war would have been unconscionable, and evacuees soon also included former employees, some 4,000 orphans, 75,000 relatives of American citizens and residents, and 50,000 Vietnamese government employees and officials. Between April and December 1975, the United States thus admitted 130,400 Southeast Asian refugees, 125,000 of whom were Vietnamese.

      The exodus did not stop there. By 1978 thousands more were admitted under a series of Indochinese Parole Programs authorized by the attorney general. Following the tightening of Vietnam’s grip on Cambodia, several hundred thousand “boat people” and many Cambodian and Laotian refugees entered. In fact, annual arrivals of Southeast Asian refugees increased almost exponentially: 20,400 in 1978, 80,700 in 1979, and 166,700 in 1980.

      The unpredictable numbers of Southeast Asian refugees provided the impetus for reform and ultimately, the passage of the 1980 Refugee Act. The new law provided two tracks for refugee admission into the United States. The first provides the President with the power to admit refugees who are outside the United States only after consultation with Congress, while the second relates to procedures by which aliens in the United States or at ports of entry may apply for asylum. And while the United States has allowed in more than a million refugees under the first track since 1980, the numbers have been much more regulated than under the previous parole authority.

      In contrast, only between five and ten thousand asylum applications have been approved per year. To say the least, the United States has not reacted warmly to notable groups who have reached our borders seeking asylum under the second track. When Haitians, El Salvadorans, Guatemalans, and Chinese boat people began arriving in significant numbers, the powers-that-be were quick to label them economic rather than political refugees.

      This response has manifested itself in humiliating ways. In the early 1980s, the INS implemented an efficiency plan in Miami by which Haitian asylum hearings were often limited to fifteen minutes, immigration judges were ordered to increase productivity and hear at least eighteen cases per day, and some attorneys were scheduled for hearings at the same time for different clients in different parts of the city. The federal court of appeals chastised immigration officials for violating due process and ordered a new plan for the reprocessing of asylum claims.⁴⁴A similar suit concluded with the INS agreeing to reevaluate potentially up to half a million Salvadoran and Guatemalan asylum cases from the 1980s, due to strong evidence of INS political bias and discrimination against these applicants.⁴⁵

      The rise in anti-immigrant sentiment in the 1980s was apparent in other ways. In 1982 as part of a major legislative package, Republican Senator Alan Simpson from Wyoming initiated a crusade to eliminate the immigration category allowing U.S. citizens to be reunited with siblings. He persisted in his efforts to abolish the category until he retired in 1996. These efforts have constituted a rather transparent attack on Asian and Mexican immigrants. Combined, Asian and Mexican immigrants make up the vast majority of sibling-of-citizen immigrants. Eliminating the category would therefore curtail Asian and Mexican immigrants who might eventually petition for even more relatives. Nativism toward immigrants was manifested in rabid support for English-only initiatives across the country, as was a rise in hate crimes directed at Asian Americans.

      Casual observers of immigration policy in the 1980s might cite the Immigration Reform and Control Act of 1986 as an example of a congressional swing toward a pro-immigration position because of its legalization (amnesty) provisions that led to the legalization of about 3 million undocumented aliens. The truth is that the employer sanctions provisions in the law (making it unlawful for employers to hire undocumented workers) was the main part of the law, and received overwhelming legislative support. The amnesty provision just barely eked through the House of Representatives.⁴⁶

      One explanation of the great influence that anti-immigrant groups have today is rooted in the exposure of the INS’s illegal actions against Haitian, Guatemalan, and El Salvadoran asylum applicants. The illegal actions of the INS in processing their applications was the agency’s response to complaints that the asylum system was too generous or manipulable. But once the agency’s illegal actions were exposed, exclusionist whining about the asylum system dramatically spiraled.

      When boatloads of Chinese began arriving in 1992 and 1993, the exclusionists were given new fuel. At first, this created a dissonant situation for the INS. After all, the Chinese were fleeing communism, weren’t they? But the situation seemed somehow different. Two incidents that occurred in late 1992 only days apart demonstrated the dilemma. In one, a Cuban commercial pilot commandeered a flight and landed in Miami. All aboard who wanted