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IN THE SHADOW OF THE LAW
Hoping to exchange the instability of 1918 revolutionary Mexico for the economic possibilities in New Mexico, Concepción de la Cruz and her family traveled from Sierra Mojada to the United States in search of work and peace. At the border, while her mother and her younger siblings had their clothing removed and disinfected, their scalps probed for lice, their bodies bathed and then inspected for disease and defect, and their intentions scrutinized during the arduous and demoralizing process of legal immigration, de la Cruz and her father were spared. "We all came together to the bridge, and they let my father and me pass and stopped my mother and the children and made them immigrate." "My father and I were never immigrated," she explained to United States immigration authorities.1 How was that possible, officials queried? How had de la Cruz and her father managed to pass over the bridge that marked the border between the United States and Mexico without passing through the rigors of legal inspection?
Neither de la Cruz, nor the New Mexico immigration authorities, nor the records left behind offer an explanation for why de la Cruz crossed easily over a legal and geographic border her mother found daunting and prohibitive. Both women were subject to early twentieth-century immigration laws controlling the arrival of immigrants from Mexico, but in important ways their cases differed. De la Cruz sought work as a housekeeper, while her mother was responsible for the care of two young children. De la Cruz's work fit within a privileged space in the law reserved for women willing to work as domestic servants, while her mother appeared an unlikely candidate to immigration officials wary of new, economically dependent arrivals. Under United States immigration law, it has mattered whether a woman was a maid or a mother. "In the main, in the eyes of the law," a critical observer noted in 1922, "a man is a man, while a woman is a maid, wife, widow, or mother."2
Women immigrants endeavored to enter and to become citizens of the United States in the shadow of the law.3 Immigrants like Concepción de la Cruz experienced arrival as a legal process, and many immigrants arrived at the border cognizant of the law and their place within it.4 Just as it is a process of geographic, social, and economic mobility and cultural change, the process of leaving one nation and arriving in another is an experience of the law.5 Mobility requires an intimate encounter of immigrants and the state acted through legal procedures. In this encounter, some immigrants become residents, some aliens become citizens, some non-Americans become Americans, and some do not.
Helping to delineate the membership of a nation state, immigration and naturalization laws create a system of belonging and not belonging.6 The place of immigrant women in this system has been judged by their work, their sexuality, their role in the family, and their race. By restricting how, why, when, and where women could enter, immigration law has protected a racially exclusive image of the American family, promoted a racially and sexually segmented labor force, and tied women's role in the nation to their domestic responsibilities in the American home. In defining the civic rights of aliens, immigrants, residents, and nationals, naturalization law tied race and gender to shifting understandings of the significance of moral character, family responsibility, and personal independence to citizenship. Historical debate over the law and its application make visible how Americans and would-be Americans, policy makers and immigrants, assessed the implications of women immigrants for the nation--their moral character, family status, race, poverty, marriage, citizenship, and alienage.
Over the twentieth century changing ideas of race difference were mapped onto those of gender to construct the walls and portals that governed immigrant women's arrival. In the late nineteenth and twentieth centuries, fluctuations in laws governing the arrival and citizenship of immigrant women were symptomatic of the major changes that punctuated this period--the growing concern about the nuclear family, the increased participation of women in wage labor, the shift from an industrial to a service economy, the increase in migration to the United States of nonwhite, non-European peoples, and the growth of the United States as a global power. The perception of immigrant women and their citizen daughters either as assets or as threats to assimilation and nation building is linked to these important shifts in social, economic, and international power relationships.
This book is divided into three sections.7 Part 1 explores the gendering of women immigrants and United States immigration policy from the first laws against Chinese prostitutes in the 1870s to the passage of the National Origins Act of 1924. In a period of derivative citizenship for women, the significance of race for the legal status of Americans and would-be Americans was gradually extended from naturalization law through immigration policy until it stood at its very center. In the context of massive movements of peoples to the United States, the combined racialization and sexualization of arriving immigrants allowed officials to carve out a definition of deviance that made marriage/morality and work/ welfare the central tensions of immigration policy.
Part 2 begins with the formal recognition of women's independent citizenship in the 1920s and ends in 1965 with the formal renunciation of racial categories that structured the national origins system. Despite the erasure of sex and race differentials in the law, sex and race continued to be differences that mattered in the application of immigration and naturalization policy. Central to this effort to redefine the borders that separated insider and outsider was the symbol of "non-Americanism."8 With fewer immigrants arriving at the nation's borders, an expanded definition and rhetoric of citizenship that included work and family challenged the status of nationals, long-term resident immigrants, and contract laborers living and working in the United States.
Part 3 suggests that post-World War II reforms laid the basis for a new gender system in immigration policy. With the advent of peace, women's traditional roles as wives and mothers reemerged as significant components of immigration law. Family reunification was embraced against a backdrop of exclusion for gay and lesbian immigrants and restriction for children born beyond the legal confines of marriage. The legal and moral legitimacy and illegitimacy of marriage and children became central concerns of immigration officials seeking to patrol of the borders of the post-war American family.
At the border, immigrants argued for the privilege of entry, while federal officials sought to interpret the law to protect national boundaries. The resulting conflict between immigrants and officials over how the law was understood and how it was applied, if it was flexible, and when it was broken is the central concern of this book. While the specifics of enforcement procedures have evolved over the twentieth century in response to increasing numbers of immigrants, along with the laws designed to regulate their arrival, the border has retained its significance as the site of assessment and judgment. Since the late nineteenth century, the power to regulate the nation's borders has rested entirely with Congress.9 In practice, however, immigration law was interpreted, enforced, and adjudicated at the borders by federal officers of the Immigration Service. Law and bureaucracy met in the immigration experience as federal officials developed administrative policies with which to interpret immigrant racialized identities, and family and work histories within the letter of congressional law.10 Detained in border facilities, immigrants and would-be citizens negotiated the administrative apparatus of the bureau.
Arriving at the nation's ports, immigrants were questioned by an immigration inspector and admitted only if they were clearly entitled to land. Doubtful cases were held for further review.11 Appearance often became reality as inspectors evaluated which immigrants appeared morally respectable, racially eligible, or economically self-sufficient. Immigrants were also subject to medical examinations, which along the Mexican border included fumigation.12 All immigrants who were not immediately admissible were held for a second hearing before a Board of Special Inquiry, a three-member panel that reviewed the case and voted to exclude or admit. Virtually all Chinese and Japanese immigrants had their cases heard before the Board of Special Inquiry, and an estimated twenty percent of Ellis Island arrivals were detained for further investigation.13 Immigrants denied entry could appeal their cases to the commissioner-general of immigration, whose decisions were reviewed by the secretary of the department.14 Immigrants who believed they were wrongly held by immigration authorities could petition the federal courts for relief and seek appeal through the judicial process.
During these appeals, immigrants faced detention, a grim and disheartening experience during which family members were separated and which could last weeks, months, and even years.15 Husbands and wives had little and often no contact with one another, and family members were separated during questioning. Held at Ellis Island, New York for over two months in 1921 while awaiting the board's decision in her case, Alexia Puskas wrote to the secretary of labor to request relief. "Two full months have passed since my case was appealed and I still wait,--wait until I am practically at my wits' ends," Puskas explained, "and it hardly seems to matter what will happen to me."16
The meticulous case files kept by the INS during these detention periods often include an extended interview with the woman seeking admission, as well as memos and reports from immigration investigators looking into immigrant women's behavior through interviews with family, friends, neighbors, and even employers.17 In their interviews with INS officials, immigrant women strategized to achieve immigration or citizenship through calculated misrepresentations.18 Often, when women immigrants altered their testimony under cross examination, they explained that their original answers had conformed to what they thought the law read, how they thought policy was applied, or what they had been advised to say by other immigrants. Indeed, in the case of Chinese applicants, INS officials maintained complete case files on immigrant families over multiple generations in order to check one family member's story against another's.19
At the border, women citizens returning from abroad could find themselves detained and deported as inadmissible "immigrants." Women who did not fit within the racial dyad of American citizenship, and thus did not appear to be citizens, were at particular risk. Faced with deportation, would-be citizens were asked to provide immigration and naturalization officials suspicious of their claims to membership with birth certificates, evidence of residence, proof of racial status, and documentation of their marriages and family histories.
Along with those women seeking naturalization and women citizens attempting to prove their citizenship, immigrant women who could find no relief before immigration authorities or social service providers sought legal redress before the federal courts. Court officers reviewed women's testimony and the opinions of immigration officials and decided the law's application.20 The federal courts thus functioned as a second border wherein women, immigration officials, naturalization examiners, and their lawyers debated to whom the law should be applied. The judiciary has possessed only limited oversight over the process of exclusion and deportation.21 Despite this, would-be immigrants and would-be citizens continued to challenge their exclusions at the border before the courts, and at times the federal courts could prove more lenient and offer women immigrants some relief. The power of judicial review, however, was limited.22
What follows is a history of the effort to belong; a belonging that was shaped by both legal definitions of membership produced by the state and personal meanings expressed by immigrants, residents, and citizens. State-defined membership in the nation was categorical in procedure but fluid in practice. Shifting constructions of race, marital legitimacy, moral conduct, work skills, varying interpretations of citizenship law, and inconsistent enforcement of statutes constantly changed the terms and requirements of state-defined membership. On this unstable ground, immigrants, residents, citizens, noncitizens, and their children created their own self-defined issues of belonging, conceptions of membership that often directly challenged the law and its application. Americans, would-be Americans, and permanent immigrants flexed the law where they could, broke it when they felt they must, as they carefully constructed stories of work skills, family relationships, and moral behavior to prove their admissibility.
Immigration and naturalization law has endeavored to create race and gender categories; so too have women inhabited, challenged, transgressed, and violated these categories in their efforts to become members of the nation. As immigration officials endeavored to fit the law onto arriving immigrants, immigrants sought to mold their testimony to fit within the law. As a result, arrival interviews with immigration officials and naturalization petitions before officers of the court are structured by multiple, often unstated, historically contingent understandings of the law. What is left behind from the efforts of women immigrants to gain admission and the efforts of administrators and policy makers to adjudicate borders is a set of legal stories, stories which are as much about citizens as they are about immigrants, as much about those inside the nation as those who remained outside.
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