Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 1997 Construction of Race and Class Buffers in the Structure of Immigration Controls and Laws, The Symposium: Citizenship and Its Discontents: Centering the Immigrant in the Inter/National Imigination: Part II: Section Three: Rethinking Agency: Global Economic Restructuring and the Immigrant Tanya K. Hernandez Fordham University School of Law, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Immigration Law Commons Recommended Citation Tanya K. Hernandez, Construction of Race and Class Buffers in the Structure of Immigration Controls and Laws, The Symposium: Citizenship and Its Discontents: Centering the Immigrant in the Inter/National Imigination: Part II: Section Three: Rethinking Agency: Global Economic Restructuring and the Immigrant, 76 Or. L. Rev. 731 (1997) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/25 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. TANYA KATERI HERNANDEZ* The Construction of Race and Class Buffers in the Structure of Immigration Controls and Laws n the midst of current anti-immigration sentiment,1 which is motivating dramatic changes in the United States' immigra- tion laws, there exists the myth that prior immigration laws were more equitable and humanitarian.' Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. * Assistant Professor of Law, St. John's University School of Law. I send warm thanks to all those involved with the Oregon Law Review Symposium Issue (partic- ularly Professor Keith Aoki) who graciously invited me to write this Essay. Rachel Moran, Michael A. Olivas, and my colleagues Berta E. Hernindez-Truyol and Janice Villiers provided helpful comments and suggestions on an earlier draft of this Essay. I extend additional thanks to my fine research assistants Lisa Simone (J.D. 1997) and Swati Bodas (J.D. 1998), and Nkosi Bradley (J.D. 1999). 1 A. M. Rosenthal, Editorial, Dred Scott in San Diego, N.Y. TIMES, Aug. 9, 1996, at A27 ("[t]he stinkweed of anti-immigrant prejudice [has spread] across the country"). 2 See, e.g., Peter Rekai, Editorial, Canada's Upscale Influx, N.Y. TIMES, Sept. 16, 1996, at A15 (history of U.S. immigration laws based upon the desire for "untutored ingenuity" of penniless immigrants); Stephen H. Legomsky, E Pluribus Unum: Im- migration, Race and Other Deep Divides, 21 So. ILL. U. L.J. 101, 110 (1996) ("Very few members of the public realize how restrictive our current immigration laws actu- ally are. Only those who fall within a few specific categories are admitted, and then only if they are not within any of the statutory exclusion grounds."). 3 "Historically, American immigration policy has expressly selected immigrants and citizens on the basis of national origin and race." Hiroshi Motomura, Whose Alien Nation?: Two Models of ConstitutionalImmigration Law, 94 MICH. L. REv. 1927, 1933 (1996). See also HARRY H. LAUGHLIN, IMMIGRATION AND CONQUEST 32 (1939) ("If the American people find that they need no more imported human seed- stock, they can stop all immigration, or they can set very high immigration stan- dards, so that every future immigrant will constitute a very definite asset by race, inborn soundness and capacity to the reproductive stocks of the American people." [The author was a congressionally appointed eugenics expert who was instrumental in the enactment of the racially restrictive National Origins Quota Act of 1924]). Some commentators also note that the discourse surrounding immigration reform reflects "this nation's collective frustration with the problem of race relations in the [731] HeinOnline -- 76 Or. L. Rev. 731 1997 OREGON LAW REVIEW [Vol. 76, 19971 Specifically, national preoccupation with the maintenance of a "White country"4 is reflected in immigration law.5 The contin- ued national preference for White immigrants is explicitly fea- tured in the visa profiling codes of U.S. embassies and consulates. 6 This Essay employs a race-conscious 7 lens to ana- lyze the way in which immigration law has been structured to perpetuate a racial hierarchy which privileges Whiteness, primar- ily by preferring White immigrants to immigrants of color, and secondarily by drafting immigrants of color to form a middle-tier buffer8 and, alternatively, to provide a bottom-tier surplus labor supply. My thesis is that the structure of immigration laws9 in the United States." Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration, and Immigrants, 7 STANt. L. & POL'Y REV. 111, 119 (1996). 4 The desire for a "White country" refers to the preoccupation with maintaining large numbers of White persons in the United States in order to preserve an eco- nomic and social hierarchy which privileges whiteness. See generally STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: How INVISIBLE PREFERENCE UNDERMINES AMERICA (1996). 5 See John A. Scanlan, Immigration Law and the Illusion of Numerical Control, 36 U. MIAMI L. REV. 819, 820 (1982) ("United States immigration law is rooted in the fundamental premise that the law can and should control the numbers and the char- acteristics of individuals entering the United States ....") (emphasis added); Wil- liam R. Tamayo, Asian Americans and the McCarran-Walter Act, in ASIAN AMERICANS AND CONGRESS: A DOCUMENTARY HISTORY 337, 341 (Hyung-chan Kim ed., 1996) ("The use of race or attempts to use race in immigration law are as American as apple pie."). 6 Olsen v. Albright, No. CIV.A.96-570 (SS), 1997 WL 811966, at *6 (D.D.C. Dec. 22, 1997) (United States' use of race-based profiling codes in embassies' and consul- ates' visa allocation violates the law). 7 Race-consciousness, as advanced by critical race theorists, emphasizes the ex- plicit recognition of race, and its usage in our society. CRITICAL RACE THEORY: THE CUT-ING EDGE at xiv (Richard Delgado ed., 1995). See also CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberl6 Crenshaw et al. eds., 1995). 8 1 use the term middle-tier buffer class to describe the positioning of certain im- migrants in the middle of a racial hierarchy which privileges whiteness. The middle- tier effectively buffers those at the top of the racial hierarchy from the discontented bottom tier. See, e.g., CARL N. DEGLER, NEITHER BLACK NOR WHITE: SLAVERY AND RACE RELATIONS IN BRAZIL AND THE UNITED STATES 226 (1971) (in the con- text of Brazilian race relations mulattos are a buffer between privileged Whites and bottom-tiered Blacks). 9 This Essay will focus upon the use of immigration laws to control the flow of legal immigration, and not the separate but related dynamic of undocumented immi- gration except as it informs the maintenance of a racial and hierarchical model of immigration. This is because legal immigration controls not only demonstrate the disregard for communities of color, but also the governmental preference for White immigrants. The significance of immigration policy as a form of control over the "character" of U.S. residents can be fully demonstrated only by examination of gov- HeinOnline -- 76 Or. L. Rev. 732 1997 The Construction of Race and Class Buffers United States has often facilitated the formation and mainte- nance of a middle-tier buffer class of residents to preserve racial hierarchy.1" I utilize the model of the middle-tier buffer to reveal the use of race in immigration policy and the need for recogni- tion of its strategic deployment in hindering movements for soli- darity in opposition to racial hierarchy. This Essay will first present the origins and purpose of middle-tier buffer classes, and then review the United States history of race-based nativism in its preference for White immigrants. This will be followed by an analysis of historical and present constructions of middle-tier buffer communities during cyclical national concerns with the number of White residents. I conclude by observing that this na- tion's racial hierarchy cannot be dismantled until immigrants of color take note of the divisive function of middle-tier buffer formation. I THE ORIGINS AND PURPOSE OF MIDDLE-TIER BUFFERS Sociologists have developed the concept of "middleman mi- norities" to describe the structural positioning of various ethnic minorities into an intermediate status level between a privileged class and the lowest socioecomic class of residents.11 Such struc- tural positioning allows the privileged class to use the intermedi- ate class as a buffer to deflect hostility and as a scapegoat during times of crisis.12 Middle-tier communities are accorded greater ernmental preferences and the exclusion of groups. See IAN F. HANEY LOPEZ, WHITE By LAW: THE LEGAL CONSTRUCTION OF RACE 1 (1996) (for much of U.S. history being White was a condition precedent for becoming a naturalized citizen); JOHN HIGHAM, STRANGERS IN THE LAND 221 (2d ed. 1988) (deportation laws func- tion to purify American society). 10 "Constitutional immigration law must acknowledge that immigration policy shapes racial and ethnic communities." Motomura, supra note 3, at 1950. 11 HUBERT M. BLALOCK, JR., TOWARD A THEORY OF MINORITY-GROuP RELA- TIONS 79 (1967). The middleman minority theory was developed in 1940 to explain the socio-economic bases of antisemitism. Howard Becker, Constructive Typology in the Social Sciences, in CONTEMPORARY SOCIAL THEORY 17, 33-35 (Harry E. Barnes et al. eds., 1940). The theory later evolved to encompass the positioning of other ethnic minorities, such as Asians, into intermediate buffer classes. Edna Bonacich, A Theory of Middleman Minorities, 38 AM.