Somehow, late in the 1930s, the service was able to amend the procedure for recording race on naturalization (as opposed to immigration) records. Vague references to this change imply that traditional difficulties in "obtaining and recording proper information as to race" caused a revision of forms wherein the applicant no longer stated his race, but chose a racial designation from a list of those eligible to citizenship. This revision occurred prior to passage of the Nationality Act of 1940, evidenced by a May 7, 1940, edition of form A-2214, Application for a Certificate of Arrival and Preliminary Form for Petition for Naturalization. A blank calling for race does not appear on the form until page three, and refers the applicant to instructions listing the choices of white, African or African descent, or Filipino. "State to which one of these classifications you belong."  All INS naturalization forms were revised after passage of the Nationality Act of 1940. Based on recommendations offered by a presidential committee studying naturalization problems since 1933, the act recodified all (and reconciled much) previous U.S. nationality law. Among proposals associated with the committee were some recommending elimination of any racial requirement for naturalization. Unfortunately, §303 of the new law extended racial eligibility to only one new group: descendents of races indigenous to the Western Hemisphere. Section 303 not only required INS to revise naturalization forms again, it raised a question of reinterpretation of the old §2169. Furthermore, it begged the question: Who are races "indigenous to the Western Hemisphere?"   Recodification of nationality law forced the INS to examine all legal language and reevaluate its administration. It also became an opportunity to reinterpret §2169, which was not repealed but was replaced for INS purposes by §303. Though the 1940 law covered only naturalization, the legislative links between racial eligibility and immigration had been established earlier. Thus any change to racial classification in administration of naturalization could affect racial classification in the immigration arena.  It was with this opportunity in mind that Commissioner of Immigration and Naturalization Earl G. Harrison began his effort to remove Hebrew from the immigration List of Races or Peoples. Two months after taking office, Harrison asked Henry Bernard Hazard, an immigration and nationality law expert and director of the service's Research and Education Division, to review the practice of racial classification on INS forms and answer the question of whether "'Hebrew' was a race." After more than thirty years of working to standardize immigration and naturalization, Hazard may have shared Harrison's obvious desire to excise the word "Hebrew" from official forms. In any event, Hazard quickly submitted a long analysis of the question, concluding that Jews or Hebrews could not properly be considered a race, "at least not in the sense in which that term is used in the immigration law."  More important, Hazard concluded that both "race" and "peoples" were subject to administrative determination under naturalization and immigration law. In his review of immigration's list, Hazard noted that the law required a record of each arriving immigrant's race but "has nothing to say about 'the people' to whom the alien may belong. The enlargement of the classification . . . to include 'peoples' appears to have been made arbitrarily, possibly because of the difficulty in determining just what the term 'race' might imply." Similarly, concerning the Nationality Act of 1940, Hazard concluded that neither the law nor regulations defined the term "race." As a result, whatever system the INS used to classify or supply race on naturalization forms was "a matter resting in administrative discretion." One year later, the term "Hebrew" no longer appeared on immigration forms and papers.  Another area where the INS increased its use of administrative discretion related to racial eligibility to naturalization. As has been shown, the courts traditionally admitted or denied racially ineligible aliens during court proceedings, either according to or despite INS objections. But developments in administrative law generally began to provide INS officers with opportunities to make decisions outside the courtroom. The cases of Majid Ramsay Sharif (Shariph) and Noshad Khan are illustrative.  Sharif, an Arab, applied for an immigration visa in 1941 but was denied as an alien racially ineligible to citizenship. Khan, an Afghan resident of the United States since 1926, faced deportation charges in 1941 for illegal entry but applied for discretionary relief as his deportation would be a hardship on his U.S. citizen wife and children. Whether the INS could afford relief to Khan and adjust his immigration status depended on whether an Afghan was racially eligible to naturalize. In both cases, because they were not petitions for naturalization, the questions went not to the courts but to the Board of Immigration Appeals (BIA). Administrative law could now determine the question of racial eligibility.

Marian L. Smith is the senior historian for the US Immigration and Naturalization Service, Washington, D.C. She writes and speaks about the history of the agency.