Vital Interests: Rose, thanks very much for joining us today on the Vital Interests forum. We're going to talk about an issue that has both defined and beset the United States since its founding, which is how do we understand the legacy of people coming to settle in this land and the realities of present-day immigration. Every recent administration has come into office promising meaningful immigration reforms, and at the end of their terms nothing lasting seems to have been done. “Kicking the can down the road” is the unfortunate mantra that impacts the lives of millions of undocumented immigrants and tarnishes the reputation of America.

It is opportune to talk with you as you can provide the context for the last time the government was able to pass substantial immigration legislation - in the 1965 Immigration and Nationality Act. You and Jack Chin edited a volume which offers a critical synopsis of what that Act accomplished and its significance to that time - the subtitle tellingly is Legislating a New America. What were the circumstances that brought about this immigration reform?

Rose Cuison-Villazor: Jack Chin and I wanted to draw attention to the Immigration and Nationality Act Amendments of 1965, which I’ll refer to here as the 1965 Immigration Act. Also referred to as the Hart-Celler Act, this law was instrumental in changing the immigrant stream into the United States and removing racially discriminatory bans. In particular, prior to 1965, immigration law had banned and severely restricted immigrants from Asia. The 1965 Immigration Act was an important piece of legislation because it lifted race-based immigration bans, which dated back to the 1870s.

Specifically, in 1875, Congress passed the Page Act, which prohibited the admission of immigrant women who were believed to be prostitutes. Seven years later, in 1882, Congress passed the Chinese Exclusion Act, which expressly banned Chinese laborers from immigrating to the United States. 

Congress subsequently expanded this ban in 1917 to prevent most immigrants coming from the “Asiatic Barred Zone” and then, in 1924, proscribed all Asians from immigrating to the United States. Although Congress began to lift some of these bans in the 1940s and 1950s, it continued to impose racial quotas on the number of Asians who could immigrate to the United States per year well into the mid-1960s. These quotas stopped due to the passage of the 1965 Immigration Act when Congress provided that no immigrant “shall be discriminated against in the issuance of an immigrant visa because of” race, sex, nationality, place of birth, or place of residence.” 

VI: So there was a total ban on anyone from Asia entering the United States?

Rose Cuison-Villazor: Yes, by 1924 there was a total ban on immigrants from Asia. In 1924, Congress passed the Johnson-Reed Act, which stated that persons who were not racially eligible to become a U.S. citizen, were not admissible (i.e., could not immigrate) to the United States. In 1924, Asians were deemed racially ineligible because at the time, the naturalization laws provided that only immigrants who were white or of African descent were eligible to apply for U.S. citizenship. Thus, citizenship law and immigration law worked alongside race and racism to create a ban on Asian immigrants. 

There were other barriers on the basis of race and national origin during this period. In particular, in 1921 and 1924, Congress passed national origins quotas that were designed to limit the number of non-western European immigrants from coming to the United States. 

Fast forward to the 1940s during World War II. Congress decided to lift the racial ban against Chinese, Indians and Filipinos. Yet, many other racial restrictions in both immigration and citizenship remained in place until 1952. In 1952, Congress eliminated all racial restrictions from naturalization laws, which was a welcome development. 

However, Congress kept in place quotas on how many people from Asia could still come to the United States. Unlike immigrants from other countries, only about 100 persons per year were allowed from each Asian country.

The 1965 Immigration Act was therefore key to lifting these race-based barriers. Note that the 1965 Immigration Act was passed by the same Congress that enacted the 1964 Civil Rights Act and the 1965 Voting Rights Act. By explicitly stating that race should not be a factor in the ability to immigrate to the United States, the 1965 Immigration Act, like the other civil rights laws, established a race-neutral principle.  

Since 1965, the United States has experienced a complete change as to who was able to immigrate to the United States. Post-1965 until today, most immigrants are coming from China, India, the Philippines and other Asian countries, along with immigrants from Mexico. 

VI: What changed in the 1960’s in the United States that allowed new, more inclusive immigration legislation to be enacted?

Rose Cuison-Villazor: The calls for racial equality and the civil rights movement provide an important backdrop to the passage of the 1965 Immigration Act. It should be noted, though, that there are different views on whether the 1965 Immigration Act may be truly considered an “inclusive immigration legislation.”

On the one hand, the legislative history and the text of the 1965 Act explicitly says that there “shall be no discrimination on the basis of race." On the other hand, the 1965 Immigration Act, for the first time, effectively imposed limits on the ability of Mexicans to come to the United States when it limited the number of immigrants who can immigrate from the Western Hemisphere. These restrictions on the ability of Mexicans to immigrate, along with other laws, are part of the reason that the United States began to have a significant undocumented population from Mexico many years later. 

VI: Children born to resident undocumented families, as well as those born in the U.S. to migrant workers, are, however, U.S. citizens?

Rose Cuison-Villazor: Yes, under the Fourteenth Amendment of the United States, persons born in the United States are birthright citizens. That was long ago decided by the Supreme Court in Wong Kim Ark v. United States in 1898.  

VI: In the decades since the 1960s, there's been no major federal immigration legislation. Administration after administration has implemented numerous immigration-related regulations that either contravene one another or expire. What we've had over the last fifty years is a mishmash of immigration laws enacted, laws repealed, regulations enacted, regulations withdrawn, programs established, programs ended, national quotas established, then policies like the Muslim ban put in place. What can we really point to as a national immigration policy?

Rose Cuison-Villazor: As many scholars and advocates have pointed out, our immigration law system is broken and a lot of that has to do with what you mentioned—a “mishmash of immigration laws.” Importantly, what is needed is the passage of a comprehensive immigration law that will articulate a vision of this country’s immigration policy not only in who should be admitted to the United States but also who should remain and become a citizen. As President Biden and Congress consider what should be the country’s immigration policy, it ought to take into account how to address any ongoing consequences of our previous restrictive immigration laws and policies. 

VI: Since there is no national vision for immigration policy, hasn’t the responsibility to deal with difficult immigration realities filtered down to be the responsibility of state and local jurisdictions? How does that complicate creating a unified vision for treating undocumented workers and those seeking asylum on a fair and equitable basis?

Rose Cuison-Villazor: Yes, you are absolutely right that states and local governments have also participated in ways that have impacted immigration law. During the Trump administration, the U.S. Immigration and Customs Enforcement (ICE) heightened the enforcement of immigration laws. All immigrants became vulnerable, regardless of their immigrant's status. During this period of strict federal immigration enforcement,  states and local governments stepped in to create safe spaces for immigrants within their communities. States like California and New Jersey and cities like Chicago and New York enhanced their “sanctuary” policies that were designed to not ask about or report a non-citizen’s immigration status to immigration officers.  

These are laws that say that these state and local law enforcement agencies will not ask, or will not report if they find out, that a person is here in the United States without lawful immigration status. Cities also ended up passing what has become known as sanctuary laws. New York City is a sanctuary city. Different cities in New Jersey are the same. For the same reason because of this high enforcement scheme at the federal level, states and local governments had to then come in to offer some safe spaces, sanctuary for undocumented immigrants and their families, many of whom are U.S. citizens. We saw during the Trump administration different approaches on how to treat immigrants.

There were also “anti-sanctuary” states like Texas and Florida that adopted laws and policies that were designed to support and assist federal enforcement inremoving undocumented immigrants from the United States. 

Admittedly, these state and local laws and policies make creating a unified vision for treating immigrants, including undocumented workers, and asylum seekers more complicated. But, given that state and local governments have a stake in the lives of immigrants and their families who are residing in their jurisdictions, it is understandable and inevitable that state and local leaders will pass laws and policies that protect their residents’ interests.  

VI: There are programs that do exist to allow migrant workers, often designated as guest workers, to come into the United States for a period of time to work primarily in the agricultural sector. Do farm groups advocate for these programs and then federal or state authorities administer them? I know many of these programs were suspended because of COVID, but is that a way to expand work opportunities for migrants that would benefit the U.S. economy and assure these workers earn decent wages, have decent housing and health care, and even education opportunities for their children?

Rose Cuison-Villazor: Many farmers advocate for guest worker programs because they have found it difficult to find U.S. citizens to work for them. Accordingly, many farmers advocate for guest worker programs. Unfortunately, many guest workers have been subject to poor or low wages and harsh working conditions. It is therefore crucial to pay attention to these guest worker programs and ensure against the exploitation of workers. It should also be noted that these guest workers receive temporary work visas, which means that they do not have a path to citizenship. 

There are, to be sure, employment-based immigrant visas that lead to a green card and U.S. citizenship. But only 140,000 of these visas are given out per year and they are generally given only to those who are exceptional or highly skilled workers. 

The majority of visas for immigrant workers are non-immigrant visas that expire after a few years. This includes not only guest workers who labor on farms but also those non-citizens who are on H-1B visas who do specialized professional work.

VI: Offering expanded paths for citizenship to undocumented immigrants is the hot iron that many in government are reluctant to touch. Let's talk about this. In the United States there are two ways a person becomes a citizen - you are born in this country, despite the nationality of your parents, or you qualify for a Green Card and after a period of time you go through a designated nationalization process.  The Trump administration and others advocated for the denial of birthright citizenship but so far there has been considerable push back on this constitutional right. What are your ideas about citizenship and how that might be redefined?

Rose Cuison-Villazor: Citizenship by birth or naturalization should be inclusive and easily available to those who desire it. Unfortunately, the history of the United States demonstrates that the acquisition of citizenship has been elusive due to racism and other exclusionary barriers. Revisiting the 1857 case of Dred Scott v. Sanford evidences this painful racist past, as one reads the Supreme Court’s explanation that the Framers of the Constitution and the Declaration of Independence did not consider African Americans worthy of citizenship. The Fourteenth Amendment’s Citizenship Clause expressly sought to open up citizenship by recognizing birthright citizenship but even after its ratification, non-white persons who were born in this country continued to have their citizenship questioned. And, even after the Supreme Court held in Wong Kim Ark v. United States that a Chinese American born in the United States was a birthright citizen, many Chinese Americans and other Americans of color continued to have to fight to get their citizenship recognized. This fight continues today among many Americans who were born in the United States and whose parents are undocumented. As you noted, they faced challenges to getting their citizenship recognized during the Trump administration and there are scholars and activists today who are actively trying to ignore the Wong Kim Ark’s decision. 

I should note here an ongoing case regarding the Citizenship Clause’s application in the U.S. territories. 

As you may know, there are five U.S. territories (Puerto Rico, Guam, the Virgin Islands, American Samoa and the Northern Mariana Islands). By federal statute, persons born in all the U.S. territories, except American Samoa, acquire U.S. citizenship. For those born in American Samoa, federal statute provides that they become U.S. nationals, a different status then citizenship.

American Samoan plaintiffs born in American Samoa have filed lawsuits to challenge this law and claimed that the Citizenship Clause applies in the U.S. territories and they should therefore be considered U.S. citizens. Thus far, these plaintiffs have been unsuccessful, with courts rejecting their claims. 

In particular, the 10th Circuit recently held in Fitisemanu v. United States that with respect to U.S. territories, it is not the U.S. Constitution, but rather Congress, that can extend citizenship to people who are born there. Similar to the D.C. Circuit Court’s decision a few years ago, the 10th Circuit relied on a series of cases known as the Insular Cases to support its conclusion. What is perhaps surprising to many who are interested in these birthright citizenship claims in American Samoa is that the government of American Samoa, on behalf of its people, filed amicus briefs in both cases to reject birthright citizenship. They view an interpretation that the Citizenship Clause applies in American Samoa as tantamount to the imposition of citizenship. 

VI: What about the large number of undocumented immigrants now in United States who are seeking permanent resident status with an eventual a path to citizenship? Estimates are this could be over ten million people. One group that has received special attention are the children of undocumented immigrates who came into the U.S. at a young age - known as the Dreamers or DACA. They were protected from deportation by President Obama in an executive ruling. The Trump administration tried various means to remove any protections. What is their status now? 

Rose Cuison-Villazor: At the outset, it’s important to note that DACA is a form of prosecutorial or executive discretion that allowed about 800,000 immigrants who were brought to the United States when they were children to remain in the United States and work. DACA has faced many legal challenges since President Obama issued it in 2012, including in 2017 when the Trump administration rescinded it. The Supreme Court, however, held in June 2020 that the Trump administration’s decision to terminate DACA was “arbitrary and capricious” and that it failed to take into account DACA recipients’ “reliance interests” with respect to their status. 

Challenges to DACA continued and on July 16, 2021, a district court in Texas held that DACA is unlawful because it did not go through a notice and comment rulemaking process as required under the Administrative Procedures Act. Although the court held that the administration could continue to renew DACA applications, it ruled that it may not accept new ones. 

A more permanent solution is available in the proposed Citizenship Act of 2021 that was introduced in both the House and the Senate. Under this bill, DACA recipients and other Dreamers, as well as other unauthorized immigrants, will gain a path to citizenship. 

VI: The DACA and Dreamer groups amount to about 800,000 but then the number of other undocumented people is quite large. Is the sheer number of people wanting to be allowed to stay the major obstacle?

Rose Cuison-Villazor: I do not believe that it is only about the number of people who may benefit from getting authorization and a path to citizenship.  Some legislators who are opposed to the Citizenship Act of 2021, believe that because an immigrant violated the rule of law, that person should not be “awarded” with permanent status or citizenship.

VI: Several weeks ago the Biden administration, through the Department of Homeland Security, released a blueprint for their overhaul of the U.S. immigration system. The title is “The DHS plan to restore trust in our legal immigration service.” This statement makes clear their agenda is to rebuild a dysfunctional immigration system and to articulate opportunities rather than create obstacles for people to legally come to the United States. Is this a plan that has any possibility of moving forward and becoming effective legislation? Or is this a wish list of things that the Biden administration would like to see implemented but will eventually compromise on in the face of Republican opposition as we see playing out in their efforts to get an infrastructure package passed?

Rose Cuison-Villazor: The Biden administration’s blueprint appears to want to create an immigration system that is more welcoming and makes it easier for immigrants to apply for admissions, for U.S. citizens to bring their family members abroad to the United States faster, and for employers to be able to sponsor foreign employees more easily. The previous administration’s high enforcement of immigration law has led to the  separation of families, to immigrants of color being detained, and to the deportation of long-term residents of the United States. In other words, the blueprint seems to reverse the policies of the previous administration and reset the country’s immigration system. 

It remains to be seen whether the blueprint—this template—will create changes. One concern that I have is that at the end of the day, a lot of the employees within the Department of Homeland Security and other agencies are the employees who were working in the Trump administration. Plans to change the immigration system will not be achieved through a top-down approach only. The effectiveness of these plans depend in large part on how much buy-in there is from those who are on the ground, who are the ones day-to-day tasked with implementing those rules. I hope that there are more specific systems in place to make sure that whatever vision this blueprint articulates will trickle down and be supported by field agents, immigration officers, lawyers, and others within the department.

VI: Isn’t a major challenge at the moment one of logistics and staffing. Many of the agencies were so gutted or redirected under the Trump administration that it is difficult for them to even minimally accomplish their missions? For example, the U.S. Citizenship and Immigration Service which is supposed to provide assistance to migrants and refugees, actually became a very harsh vetting agency focusing on rejecting rather than fairly evaluating applications for entry. 

Rose Cuison-Villazor: Staffing is indeed a problem. There was an exodus of not only policymakers but also long-term, experienced employees during the Trump administration. They just did not want to deal with the difficult situations they were put in. Now we urgently need more people to work in those agencies to be able to implement these various rules and policies that the Biden administration wants.

VI: Rose, in your experience as a law professor and dean, do you see students who are considering public service in the immigration field or in private practice aiding the undocumented in avoiding deportation and navigating the complex legal challenges they face?

Rose Cuison-Villazor: Absolutely. I teach immigration law on a regular basis and there is a lot of interest in this area. In my classes, I have students who plan to do immigration law-related work as well as students who are going into other fields but they are committed to doing immigration law pro bono. I also direct a Center on Immigration Law, Policy, and Justice. One of the projects that we do every year is a one-day citizenship clinic when we help green card holders apply for their citizenship. This annual clinic always draws multiple student volunteers (as well as pro bono lawyers). The Center also engages in policy research and every year, students apply to serve as fellows to engage in policy work. One of our current projects involves researching ways that states and local governments create their jurisdictions to be more welcoming of immigrants and their families.  

VI: We are coming to the end of our time and like to end on a positive note. The prospect of the Biden/Harris administration vision for a meaningful overhaul of the U.S. immigration system is encouraging and will bring new hope for the millions of undocumented individuals in this country and the multitude of deserving asylum seekers and refugees looking for a refuge and to start new lives in America. Thank you for participating in the Vital Interests forum.

Dean Rose Cuison-Villazor has been serving as Vice Dean of Rutgers Law School in Newark since July 2019. She is also the founding Director of the Center for Immigration Law, Policy and Justice at Rutgers Law School.

Dean Cuison-Villazor teaches, researches and writes in the areas of immigration and citizenship law, property law, Asian Americans and the law, equal protection law and critical race theory.  Her research agenda explores the meaning of citizenship and ways that legal structures and systems determine membership and sense of belonging in the United States. She teaches Property Law, Immigration Law, Critical Race Theory, Asian Americans, Pacific Islanders and the Law, Estates in Land, and Introduction to U.S. Law.