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Excerpted from: Diana Vellos, Immigrant Latina Domestic Workers and Sexual Harassment, American University Journal of Gender and the Law 407, 414-418 (Spring, 1997)(citations omitted)
The history of immigration law in the United States provides an interesting backdrop from which to analyze this country's views of race and class, which are often reflected in laws concerning immigration. One example of this connection is the laws concerning denial of benefits to undocumented people in the United States. Such laws began taking form when people of color began immigrating to the United States in large numbers from developing nations. During the settlement of the colonies, immigrants arrived freely, limited only by the cost of travel, diseases, and the harsh environment found in the colonies. In the years before the American Revolution, immigrants came to the colonies from England, France, Germany, Holland, Spain, and Portugal. During this period, slaves from Africa were also forcibly brought to this country. The only immigration restrictions at this time were on criminals and public charges. These restrictions illustrated the hostility felt towards newcomers by colonists who had only just arrived themselves. Immigration was, however, still favored to the extent that the colonies needed more people for labor and development. It is important to note that extensive federal legislation dealing with immigration was not enacted for some time. At first it was unclear whether the federal government was given the authority by the Constitution to regulate immigration. Also, unrestricted immigration was still desirable as a means for obtaining labor and achieving growth as a nation. Discontent with an open immigration policy increased with the tremendous rate of immigration and with the change in the composition of immigrants. Between 1820 and 1880, political and economic conditions brought over 2.8 million Irish immigrants to the United States. German Catholic immigrants also came during the 1840s. American society did not accept the Irish Catholics and Germans, and movements to limit immigration began to form. After the Civil War, federal law began to reflect the growing desire to restrict immigration of certain groups. In 1875, Congress passed the first restrictive statute for immigration, barring convicts and prostitutes from admission. The 1875 Act also attempted to deal with the problem of Chinese labor in the West. Imported Chinese labor had been used since 1850, and the tension between the Chinese workers and the settlers of European descent ran high. Congress adopted a law outlawing so-called "coolie- labor" contracts and immigration for lewd and immoral purposes. In 1882, Congress took even stronger action in the Chinese Exclusion Act, the nation's first racist, restrictive immigration law. The Act suspended all immigration of Chinese laborers for ten years and forbade any court to admit Chinese people for citizenship. The Chinese Exclusion Act was finally repealed in 1943. Immigration was now seen as a threat to the United States economy, and Congress began expanding the list of "undesirable classes" hoping to upgrade the quality of immigrants and to limit overall entry.
Despite these efforts to decrease the flow, immigration continued to flourish in the United States during this time. By 1920 nearly 14 million out of the 105 million people living in the United States were foreigners. From this wave, Japanese immigrants experienced the worst state and federal antagonism. The Gentleman's Agreement of 1907, an accord between the United States and Japan to restrict Japanese migration, effectively ended the influx of Japanese nationals to the United States. California state law reinforced this anti-Japanese sentiment by prohibiting Japanese immigrants from owning property or leasing farmland. After World War I, Congress enacted the Quota Act, which limited the number of immigrants allowed to enter the United States to three percent of their nationality already residing in the country. Three years later, Congress decided to lower the quota to two percent. In 1942, California created the "Bracero Program," a Mexican labor program that allowed California agricultural employers to temporarily contract with approximately two million Mexican nationals for their labor in the fields. The agricultural industry benefited from this cheap labor until 1964, long after World War I ended. In spite of the Bracero Program, between 1939 and 1954, the INS deported three million undocumented and documented Mexican immigrants and U.S. citizens through an anti-Mexican campaign known as "Operation Wetback."
In 1986, Congress passed the Immigration Reform and Control Act (IRCA). The Act focused almost exclusively on illegal immigration. The IRCA dealt with undocumented aliens by imposing sanctions on employers, while simultaneously legalizing the status of undocumented entrants who had arrived prior to January 1, 1982. The IRCA also included provisions prohibiting discrimination on the basis of national origin or citizenship. Despite all of the provisions, the IRCA did not substantially restructure the immigration law as it pertained to immigrant and non-immigrant visas. The employer-sanction provisions of the Act penalize a person or entity who, for a fee, hires, recruits, or refers for employment an alien in the United States, knowing the alien is unauthorized, or who employs any individual without complying with the Act's employment verification system. Employers are also sanctioned if after hiring an alien, the employer continues to employ him or her knowing the alien has since become unauthorized. In the last few years, newly enacted immigration legislation has been motivated by rising anti-immigrant sentiments in the United States. In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was passed. AEDPA is a comprehensive bill targeting terrorism and other crimes. The bill expands the grounds of deportability for immigrants convicted of crimes and narrows previous forms of relief. The anti-immigrant sentiment also surfaced in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. This Act, known as the "welfare reform" bill, made major changes in the public benefits available to legal immigrants. The Act makes even permanent residents ineligible for most federal benefits. Congress intended for the Act to encourage self-sufficiency and remove the supposed "extra incentive" for migrating to the United States either legally or illegally.
The rise of anti-immigrant legislation continued with the enactment of the Illegal Immigrant Responsibility Act of 1996 (IIRAIRA). IIRAIRA is a sweeping piece of immigration reform which focuses on the quick removal of undocumented immigrants. IIRAIRA allows for an increase in criminal penalties for immigration-related offenses and enhanced enforcement authority. The main objectives of the Act are to allow for expedited removal process upon entry, withdrawal of judicial review for certain forms of relief, expansion of the definition of aggravated felony, benefit limitations for non-citizens, and time limitations for filing asylum claims. The implication of this new legislation will be far reaching and will have a negative impact on many non- citizens. Unfortunately, it is yet to be seen how these new provisions will be enforced through the Immigration and Naturalization Service and the courts.