Race, Nationality, and Reality:
INS Administration of Racial Provisions in U.S. Immigration and Nationality Law Since 1898, Part 2
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.

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."

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.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. 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." 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. 

     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.

 

 

 

 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." 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)." 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."

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.In the following years, as Nazi persecution of Jews in Europe increased, dissatisfaction with the presence of Hebrew on the list widened and deepened.

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