A History of Border and Immigration Policy

By Bill Ong Hing
Professor of Law
University of California, Davis
November 2007

[Note: These comments were adapted from the book, Defining America Through Immigration Policy (Temple Univ. Press 2004). Professor Hing’s most recent book is Deporting Our Souls—Values, Morality and Immigration Policy (Cambridge Univ. Press 2006).]

On a different September 11—the one in 1998—the body of a man was found floating in the All-American Canal in the Imperial Valley of southern California. The next day, Saturday, September 12, another man, who had been in a coma since August, when he was found in the valley’s desert with a core body temperature of 108 degrees, died. On Sunday, the Border Patrol discovered the body of Asuncion Hernandez Uriel in the same desert. Some of her group stayed with her, but she died of heat stress. The same day, the decomposed body of Oscar Cardoso Varon was pulled out of the canal. In all, the bodies of four migrants attempting to cross to the United States from Mexico were found that weekend.

Unlike the reaction of the American public to the horrors of September 11, 2001, no outrage or sympathy was expressed after the weekend border deaths beginning September 11, 1998. One could point to a difference in scale—some 3,000 on September 11, 2001—but try more than 3,000 in the border situation; 3,000 deaths at the border that were avoidable. When deaths resulting from these strategies—with names like Operation Gatekeeper, Operation Safeguard, Operation Blockade—started being reported, the Border Patrol was not surprised. Its 1994 strategic plan recognized that pushing migrants to cross through remove, uninhabited expanses would place them in “mortal danger.” When the strategy to move the undocumented foot traffic to the east of San Diego as part of Operation got underway, a Border Patrol supervisor said, “Eventually we’d like to see them all out in the desert.”

How did we get to this shameful place in the name of immigration enforcement? The sordid history of the southern border and immigration policies is not something of which Americans can point to with much pride. Consider this chronological scan:

1821. Mexico declares independence from Spain, taking control of what we now regard as the entire southwest: California, Texas, Arizona, New Mexico, and parts of Colorado, Utah, and Nevada.

1846. After Texas is annexed in 1845, President James Polk orders American troops to defend the border claimed but contested by Mexico. Polk attempts to buy a huge tract of land in the Southwest from Mexico. When these efforts fail, Polk asks Congress for a declaration of war, and a state of war is recognized. After U.S. troops win in New Mexico and California, the war is taken to Mexico City, and the war is brought to an end when U.S. troops capture the Mexican capital. The costs of war included the deaths of 13,000 Americans and 50,000 Mexicans.

1848. The Treaty of Guadalupe Hidalgo is signed. The U.S. gains California and New Mexico (including present-day Nevada, Utah, and Arizona) and recognition of the Rio Grande as the southern boundary of Texas. This amounts to 55 percent of Mexico’s territory. In return, the American government agrees to settle claims of its citizens against Mexico and to pay Mexico a mere $15 million. The treaty gave all Mexicans living in the ceded territory the option of remaining there and becoming U.S. citizens or of relocating within the new Mexican borders. Although some Mexicans moved to Mexico, most remained in what became U.S. territory. In essence, the boundary was at first an artificial one and did not effectively separate the new U.S. possessions from those south of the border. Mexicans continued to cross all along the border with the feeling that in reality nothing had changed. As a result, many border areas constituted one economic region.

1864-1870s. Individual states and private industry actively recruited Mexicans to attract workers; use of recruiting agents and the offer of inducements were common. Competition for immigrants became intense.

1880s. Aside from Mexican gold seekers who migrated in 1849-50 (most of whom were driven away by white English-speaking miners), the first significant “modern-style” migration from Mexico began in the 1880s in response to the labor demand in railroads, mining, and agriculture.

1882. Chinese Exclusion Act blocks the entry of all Chinese laborers to the United States. This serves as the impetus to begin monitoring the southern border for fear that Chinese would first travel to Mexico and enter illegally across the southern border to avoid detection.

1900. The Mexican population in the United States was about 100,000.

1910-20. Approximately 200,000 Mexicans admitted into the United States. Many sought safety from the upheaval of the revolution of 1910 and were admitted as economic refugees.

1914-18. During Word War I many Mexicans are actively recruited to fill severe manpower shortages resulting from American involvement in military service and the curtailment of the migration of cheap European laborers.

1917. So strong is the need for cheap labor that a provision of the 1917 Immigration Act, mandating a head tax and literacy requirement, is legally waived for Mexicans. This is known as the Ninth Proviso. In the meantime, “line riders” still patrolling for illegal entrants from China join forces with the Texas Rangers.

1919-21. The Arizona Cotton Growers’ Association spends about $425,000 recruiting and transporting Mexican workers. This saves the growers $2.8 million in picking costs by maintaining an “elastic supply of labor.”

1920s. About half a million Mexican workers are recruited. Industrial and agricultural representatives testified before congressional committees in the 1920s that Mexican labor had been a vital factor in the development of their enterprises. During this era, the National Origins Quota system is enacted aiming to reduce the immigration of southern and eastern Europeans to the United States. Funds are provided for what is today’s Border Patrol.

1929-31. The stock market crashes in October 1929, and ridding the country of workers who are “no longer needed” becomes a priority.  Undocumented Mexicans are rounded up and deported, but that is not enough for anti-Mexican forces. Exclusionists rally public and private agencies at state and local levels to institute repatriation programs that encourage documented Mexicans and U.S. citizens of Mexican descent to return to Mexico. The repatriation program seldom involved the federal government; in some states, the program is largely financed by contributions from local businesses. Threats of physical violence induce many Mexicans to abandon jobs and long-established domiciles throughout the country. Individuals and their families are forced from all over the country—Los Angeles, Phoenix, El Paso, Denver, Kansas City, Chicago, Detroit, Pittsburgh, New York, New Orleans, San Diego, San Francisco, Portland, Seattle, and even Fairbanks, Alaska. During a five-month period in 1931, 50,000 Mexican nationals and their children are repatriated from Los Angeles alone.

1942. With the approach of World War II, large agricultural expansion is short on cheap labor. Under the authority of the Ninth Proviso, the federal government allows employers to initiate new recruitment of Mexican labor. A treaty is negotiated and the Bracero program is instituted (lasting until 1964).  This is an unsupervised program, under which undocumented migrants are recruited by U.S. growers along with program participants, while wage rates and working conditions are not monitored.

1948. In the “El Paso Incident,” local immigration officials unilaterally open to border to eager workers in response to farmers’ demands for labor. Throughout the period of the Bracero program, it is implausible to regard the U.S. role in undocumented entry as unintentional, naïve, or innocent.

1954. Following a border visit by the INS Commissioner (Brownell) in 1953 where he is troubled by the openness of the border, Operation Wetback is instituted where more than a million undocumented Mexicans are deported. This is a sad chapter in the border’s history. In the 1950s, cars are substitute for horses for the Border Patrol, and greater focus is given to the southern border.

1962. A drought in northern and central Mexico leads to high unemployment and pressures to migrate north.

1964. After years of abuse, the Bracero program is brought to an end by Congress. The defeat of the Bracero program is notable because from that point forward, cheap labor became exclusively undocumented. But a century of tradition, recruitment, and promotion by employers was already in place and had its permanent effect. In 1964, 56,000 Mexicans are deported by airplane to southern Mexico; another 54,000 are deported by train.

1966. Border crossing cards are issued to alleviate many travel problems that local residents have. Those using the cards can remain in the United States for up to six months.

1975-76. The U.S. Supreme Court is influenced by hysterical allegations of an uncontrolled border. The Court (Brignoni-Ponce case) allows the Border Patrol to stop vehicles away from the border if there is “reasonable suspicion” that an undocumented person is in the car or truck. Then the Court (Martinez-Fuerte case) allows the stationing of “fixed checkpoints” very far from the border where drivers and passengers can be racially profiled, stopped, and questioned about immigration status.

1984. The U.S. Supreme Court (Lopez-Mendoza case) rules that even though an immigrant’s fourth amendment rights against an unreasonable search and seizure have been violated, the illegally obtained evidence that the person is undocumented can be considered by an immigration judge to order the person deported.

1986. Under the Immigration Reform and Control Act (IRCA), undocumented who have resided in the United States for five years or who have worked in agriculture can qualify for legalization. About three million applicants, mostly Mexican, are granted amnesty. For the first time, IRCA also provides that an employer can be penalized for hiring an undocumented worker.

1993. The regional Border Patrol supervisor, Sylvestre Reyes, decides station his agents in closely spaced vehicles along the Rio Grande to intimidate would-be surreptitious entrants from trying to cross. Operation Blockade had apparent dramatic short-term results: apprehensions of undocumented aliens plummeted within the El Paso Sector. The outcome was noticed by the media and Congress, and INS leaders in Washington, D.C. soon found themselves under great pressure to replicate what was dubbed as the “successful” El Paso experiment, along the other segments of the border, beginning with San Diego County.

1994. Operation Gatekeeper is instituted. And the rest is an unfortunate history that has resulted in avoidable deaths, as the safest places to cross are closed, and migrants cross in the death traps of the mountainous regions in the winter and the Sonoran desert in the summer. The policy of Operation Gatekeeper—control through deterrence—has become a moral catastrophe that we as a civilized people cannot allow to be perpetuated. On the average, one person dies each day along the border. Policymakers condone the strategy knowing full well that deaths will result.

I hope we can learn from this brief history. In our liberal society that enables immigrants and refugees from most parts of the world to enter, being an American should not a function of race or ethnicity. Perhaps a famed American writer put it best when he wrote that “America is in the heart.” (Carlos Bulosan) Yet for reasons of racial or ethnic bias, questions of loyalty, or simply discomfort with difference, Americans of non-European descent are stigmatized or ostracized—even demonized—to the point of de facto losing their status as Americans, or even being welcomed as members of the society. Depending on the circumstances and the conditions, the power to “de-Americanize” entire racial or ethnic groups can be controlled not only by policy makers, but by mob-like actions and even individual actions or words. For each time a misguided person acts or speaks in terms that mark the subject as unwanted or “not one of us,” a message of expatriation has been delivered. Broad, official government targeting of racial or ethnic groups only emboldens these racist vigilantes. The tragedy is that intransigent views of who cannot possibly be Americans, such as migrant Mexicans attempting to cross the border, lead us to tolerate avoidable deaths at the hands of Operation Gatekeeper.

The experiment that we all America is a test of our character and our willingness to believe that we can have a strong country that is caring and diverse. Showing compassion and fairness in our immigration policies is not a sign of weakness. Rather those traits demonstrate a confidence in a rule of law and system of government that metes out punishment when necessary, but understands that regulating the lives of those who seek to live within our borders must be done with the utmost compassion, dignity, and understanding.