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America's Immigration Policy - Where We Are and How We Arrived: an Immigration Lawyer's Perspective Howard S Mitchell Hamline Law Review Volume 44 | Issue 3 Article 1 2018 America's Immigration Policy - Where We Are and How We Arrived: An Immigration Lawyer's Perspective Howard S. Myers III Follow this and additional works at: https://open.mitchellhamline.edu/mhlr Part of the Civil Rights and Discrimination Commons, and the Immigration Law Commons Recommended Citation Myers, Howard S. III (2018) "America's Immigration Policy - Where We Are and How We Arrived: An Immigration Lawyer's Perspective," Mitchell Hamline Law Review: Vol. 44 : Iss. 3 , Article 1. Available at: https://open.mitchellhamline.edu/mhlr/vol44/iss3/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Mitchell Hamline Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Myers: America's Immigration Policy - Where We Are and How We Arrived: A AMERICA’S IMMIGRATION POLICY—WHERE WE ARE AND HOW WE ARRIVED: AN IMMIGRATION LAWYER’S PERSPECTIVE Howard S. Myers, III† I. INTRODUCTION ...................................................................... 744 II.HISTORY OF IMMIGRATION LAW ............................................ 745 A. Early Immigration to the United States ............................. 745 B. The United States Implements Its First Numerical Quotas ... 748 C. Factors Influencing U.S. Immigration in the 1930s and 1940s ......................................................................... 749 III. MODERN IMMIGRATION LAW ................................................. 750 A. The Immigration and Nationality Act of 1952 .................. 750 B. U.S. Immigration Policy in the 1950s, 1960s, and 1970s ... 752 1. Anti-Communism and Immigration Policy During the 1950s .................................................................... 752 2. The Abolition of the National Origins Quota and Immigration Policy in the 1960s and 1970s ................ 753 C. Developments in Immigration Law During the 1970s ......... 754 D. Employer Responsibility for Verifying Employee Immigration Authorization Status and Marriage Fraud Reduction ........ 756 E. The Immigration Act of 1990 ......................................... 760 F. Immigration Law into the 1990s and Beyond ................... 763 IV. EFFORTS TO LIMIT FEDERAL COURT JURISDICTION ............... 773 † Howard S. “Sam” Myers III began practicing in the field of immigration law in the late 1970s. Mr. Myers is the 436th member of the American Immigration Lawyers Association (AILA). He served as AILA’s national President between 1991–92. In 1983, with William Mitchell College of Law’s former professor Bernard Becker, he co-founded the law school’s Immigration Law Clinic. See Brian Voerding, At 25, William Mitchell’s Immigration Clinic Still Helps Clients—And Develops Students, MINNPOST (June 10, 2008), https://www.minnpost.com/education/2008/06/25- william-mitchells-immigration-clinic-still-helps-clients-and-develops-students [https: //perma.cc/HMS3-5UUW]. He is currently an adjunct law professor at the University of Minnesota Law School, where he teaches immigration law. Mr. Myers extends his deep appreciation to the editorial staff of the Mitchell Hamline Law Review for their work and guidance throughout the editing process. 743 Published by Mitchell Hamline Open Access, 2018 1 Mitchell Hamline Law Review, Vol. 44, Iss. 3 [2018], Art. 1 744 MITCHELL HAMLINE LAW REVIEW [Vol. 44:3 V. THE SHIFT OF IMMIGRATION POLICY TOWARD HOMELAND SECURITY ................................................................................ 775 A. Effects of Economic Growth on Immigration and the American Competitiveness in the Twenty-First Century Act of 2000 .... 775 B. Effects of 9/11 on Immigration Reform ............................ 777 VI. THE IMPACT OF PRESIDENT OBAMA'S EXECUTIVE ORDERS ... 782 VII. THE TRUMP ADMINISTRATION'S IMPACT ON IMMIGRATION .. 784 A. The Travel Bans .......................................................... 786 B. DACA and Sanctuary Cities ........................................... 788 C. Memoranda to Immigration Agencies .............................. 790 D. The Trump Administration’s Proposed Regulations ........... 797 VIII. CONCLUSION: GOING FORWARD ............................................ 800 I. INTRODUCTION The Association of Immigration and Nationality Lawyers was founded on October 14, 1946, in Manhattan, New York.1 At that time, the organization consisted of nineteen members.2 Seventy-one years later, that organization—now named the American Immigration Lawyers Association (AILA)—boasts more than 15,000 members.3 Why do immigrants, their families, and their employers need so many lawyers? This article will help answer this question by tracing how our immigration law structure and policies have evolved to their current state of affairs within our “nation of immigrants.”4 For example, although the total number of legal immigrants entering the United States during the 1950s was already more than 2.5 million, that number rose to 3.3 million in the 1960s.5 The number 1. American Immigration Lawyers Association, LAWYER LEGION, http://www.lawye rlegion.com/associations/american-immigration-lawyers-association/ [https://per ma.cc/5AA8-93QE]. 2. See Leslie C. Levin, Specialty Bars as a Site of Professionalism: The Immigration Bar Example, 8 U. ST. THOMAS L.J. 194, 201 (2011). 3. About, AM. IMMIGR. LAWYERS ASS’N, http://www.aila.org/about [https://per ma.cc/63M4-7ZNS]. 4. President Kennedy is generally regarded as having first used this phrase as the title of his book on American immigration, written while he was then a U.S. Senator. See JOHN F. KENNEDY, A NATION OF IMMIGRANTS (1959). 5. Peter H. Schuck, The Legal Rights of Citizens and Aliens in the United States, in TEMPORARY WORKERS OR FUTURE CITIZENS?, JAPANESE & U.S. MIGRATION POLICIES 238, 244 (Myron Weiner & Tadashi Hanami eds., 1998). https://open.mitchellhamline.edu/mhlr/vol44/iss3/1 2 Myers: America's Immigration Policy - Where We Are and How We Arrived: A 2018] AMERICAN IMMIGRATION POLICY: WHERE WE ARE NOW 745 of immigrants entering the United Sates continued to increase until the 1980s, when the annual number of lawful immigrants dropped to around 500,000 per year.6 This article will address, among other things, a brief history of immigration law throughout the decades,7 historical events and their impact on immigration policy,8 how the policies of President Trump have differed from those of President Obama,9 and thoughts on the future of immigration law and policy in America.10 II.HISTORY OF IMMIGRATION LAW A. Early Immigration to the United States To refer to the earliest American view of immigration as “policy” is imprecise. The new country needed all the settlers it could muster. Early American and pre-American colonists were primarily of European origin, coming from Great Britain, France, the Netherlands, and Spain.11 With them came involuntary immigrants who were the earliest non-Europeans: African male and female slaves.12 By the first census in 1790, the total population of the United States was 3,227,000.13 Seventy-five percent of this total consisted of persons of English, Scottish, and Scottish-Irish heritage.14 Eight percent were German.15 Other nationalities that represented a significant number were Dutch, French, Swedish, and Spanish.16 6. Infra note 10. 7. See infra Parts II, III. 8. See infra Part V. 9. Compare infra Part VII, with infra Part VI. 10. See infra Part VIII. 11. An excellent, objective, and detailed history of United States immigration law policy is provided in JOYCE VIALET, CONG. RESEARCH SERV., 91-141 EPW, BRIEF HISTORY OF U.S. IMMIGRATION POLICY (1991) [hereinafter BRIEF HISTORY], reprinted in STAFF OF H.R. COMM. ON THE JUDICIARY, 104TH CONG., IMMIGRATION AND NATIONALITY ACT 578–91 (Comm. Print 1995), https://ia800301.us.archive.org/ 22/items/bub_gb_oWLynZnattAC/bub_gb_oWLynZnattAC.pdf [https://perma. cc/8HGF-35NP]. 12. See id. at 580–81. 13. Id. at 581. 14. Id. 15. Id. 16. Id. Published by Mitchell Hamline Open Access, 2018 3 Mitchell Hamline Law Review, Vol. 44, Iss. 3 [2018], Art. 1 746 MITCHELL HAMLINE LAW REVIEW [Vol. 44:3 Surprisingly, immigration-stoked nativist tensions began early in the United States.17 In 1753, Benjamin Franklin reflected on these tensions in the following observations relating to the arrival of Germans in Pennsylvania: Those who come hither are generally of the most ignorant Stupid Sort of their own Nation . and as few of the English understand the German Language, and so cannot address them either from the Press or Pulpit, ‘tis almost impossible to remove any prejudices they once entertain. Not being used to Liberty, they know not how to make a modest use of it. 18 Throughout the nineteenth century, population overcrowding in Europe created a fortuitous match between the needs of the United States and its immigrant arrivals.19 The 1864 Republican national platform reflected this relationship: [F]oreign immigration, which in the past has added so much to the wealth, development of resources and increase of power to the nation, the asylum of the oppressed of all nations, should be fostered and encouraged by a liberal and just policy.20 By the mid-1800s, immigration had increased by nearly 600 percent to more than four million—mostly from Western Europe.21 The need for labor following the Civil War, along with the construction of intercontinental
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