Editor’s Note: We welcome Charles Cheng-Kung Wang, an immigration attorney at law in Cincinnati, Ohio, back as guest blogger with the below piece. His last piece “Why Asian Americans Confuse Affirmation Action with the Very Real Plight of being Capped Out from Universities of Their Choice“, aggressively touched on this topic critical to all of us and our community and families.

2013 has been dubbed the year of hope for passing immigration reform. There is less than two months of the year left to do this, and given the dysfunctional state of the U.S. Congress, it is unlikely that anything substantive will pass.

This said, I would like to explore the historical connection between U S Immigration Policy and Civil Rights in America. One reason is that an appreciation of this connection will also help explain why immigration reform is so hard to achieve today.

I will make the bold assertion that, historically, immigration policy is racially based, and even at this moment there are those who oppose immigration reform also for the reason of race. Let us look at the key milestones in U.S. Immigration legislation.

All immigration lawyers will agree that the single most important piece of immigration legislation in modern times is the Immigration & Naturalization Act (Hart-Celler Act) of 1965. The key progress achieved in 1965 is the writing over of the then notorious Immigration Act of 1924. Notorious because the 1924 Act is totally race based – it contained two racially obnoxious parts calculated to ban the entry of “undesirable” immigrants: the National Origins Act, and Asian Exclusion Act. The Asian Exclusion Act is blatantly obvious on its face – it barred immigration from the Asia-Pacific Triangle. The National Origins Act is more subtle – it sought to preserve the racial mix of the USA to that which existed in the year 1890. Up to 1920, about 90% of immigrants were from Europe. The Immigration Act of 1924 is also remembered as the Eugenics Act, eugenics being the pseudo-science of genetic engineering based on perceived traits of superiority started the 1860s but discredited along with the defeat of Nazism at the end of World War II in 1945.

The hand-waving of the National Origins Act was necessitated partly by the advocacy and efforts of African American activitists and supporters. In 1890, at the height of Jim Crow laws in the South which arose after the end of Reconstruction in 1877, the discriminatory situation was a rallying cry for segregationists seeking to preserve white supremacy in America. In 1883, the U S. Supreme Court in various Civil Rights cases declared unconstitutional the Civil Rights Acts passed by Congress during Reconstruction Era reasoning that the 14th Amendment did not authorize legislation against individual conduct, but only against official state action. Are you surprised, then, that given the racial attitudes gripping America during that period, that in 1882 Congress passed the Chinese Exclusion Act which barred immigration from China? This brings me to the crux of my discussion – the impact of civil rights on immigration.

The year 1965 is also significant because Congress passed and President Johnson signed into law the Voting Rights Act. A year earlier, the Civil Rights Act of 1964 also became federal law. These 2 Acts are the culmination of the civil rights movement to eliminate segregation historically against freed slaves and their children, that is, to end Jim Crow. The pinnacle of the legalization of discrimination is the approval of the “separate but equal” doctrine by the U. S. Supreme Court in Plessy v. Ferguson in 1896 which upheld segregation of public transportation by reason of color. Lesser known is the case of Giles v. Harris decided by the U.S. Supreme Court in 1903 forbidding the federal courts from hearing complaints against state officials of voter suppression against African Americans.

With Brown v. Board of Education, the Court in 1954 signaled a cardinal reversal of national policy towards institutional segregation. In response to the modern civil rights movement, Congress got into the act in 1964-1965 with the modern Civil Rights and Voting Rights Acts. Is it a mere coincidence that in 1965, Congress also passed the Immigration & Naturalization Act which removed the color bar and equalized immigration from the “Eastern and Western Hemispheres” of the world? Is there a connection with the Civil Rights Act of 1964 and the Voting Rights Act of 1965? I think there is a direct connection – the Congress could not in good faith continue the racially discriminatory immigration policy in the face of the progress made in civil rights at home.

I view slavery as involuntary immigration where people from Africa were forced against their wills to leave their homes and were transported in chains to these shores. Those enslaved are nonetheless immigrants just like the people who crossed the Atlantic Ocean from Europe to find political and religious freedom and economic opportunity for themselves and their children (economics and race are hand in hand in making immigration policy). After the baptism by fire and steel of the American Civil War, the Emancipation Proclamation of President Lincoln, and the 13th, 14th and 15th Amendments to the United States Constitution, can immigration be restricted to only from across the Atlantic? In fact this is exactly what happened – immigration policy continued to be race and color based until 1965, the year Jim Crow was officially struck dead by the U. S. Congress, but after a hundred years from the end of the Civil War.

After the comprehensive overhaul of immigration law in 1965, immigration from Europe dropped to around 15%. After 1965, subsequent amendments in immigration in 1980, 1986, 1990, and 2001 (Patriot Act passed a month after 9/11) all show a tendency towards restricting immigration. What kind of immigration amendment will come in 2013-2014?

Earlier this year, the U. S. Supreme Court in the landmark case of Shelby County v. Holder, signaled that the Voter Rights Act may have outlived its purpose, striking down the core Section 4(b) because Congress had renewed it using stale 1975 data, suggesting that states and local government previously subject to strict federal oversight of voting procedures are no longer engaged in voter suppression. Has American totally freed herself from racial animus and perceptions of color supremacy that gave rise to slavery, Jim Crow, the Chinese Exclusion Act, and the Asian Exclusion Act?

Will this emerging rationale epitomized by Shelby County have an impact on immigration reform in light of the historical relationship between civil rights and immigration policy? I close with the current census projection based on current trends that by 2043, the population demographics in the United States will shift to no racial majority but only a plurality of races. How can American have a relevant & useful immigration policy given such rapid shifts with a useless Congress?

– Charleston C. K. Wang