If Arléne Amarante could wave a magic wand that would transform her home country of America, she would make the invisible people feel visible and the excluded people feel included. As a Latina lawyer born to Mexican parents after they immigrated to the United States, she made the case recently that “Latinos are racialized as perpetual foreigners.”
Often it takes a historical event to make some invisible people visible, such as the recent collapse of a bridge struck by a ship in the Baltimore harbor. She said that Americans recognized that the workers who lost their lives while repairing bridge potholes “were all from Central America and Mexico. And there are so many more thousands like them who we’ll never know about, but they’re still our brothers.”
Amarante is an associate professor of law at Lincoln Memorial University, where she teaches courses in legal writing, immigration law, asylum law and critical race theory. She spoke on “Navigating Identities and Borders: The Evolution of Latino Immigration and U.S. Policy.”
“It is difficult for someone like me to really feel like I belong, even if this is the country of my birth,” Amarante said at the outset. “This has been the case for generations before me. I think this speaks to a larger need to understand how we got here. I will share my understanding through a history of immigration law.”
Her talk was the third in the “American Roots: An Exploration of Cultures” series, co-sponsored by the Oak Ridge Breakfast Rotary Club and the Oak Ridge Institute for Continued Learning. It will conclude on Thursday, May 16, with a talk on the Jewish experience in our region.
Several times Amarante mentioned the Treaty of Guadalupe Hidalgo, which ended the Mexican-American war in 1848. In Mexico, she noted, the treaty is said to have ended “the American invasion” because the U.S. army seized land that once belonged to Mexico.
According to Wikipedia, in compliance with the treaty’s terms, Mexico ceded 55% of its territory to the United States for $15 million. The territory included present-day Arizona, California, Nevada, New Mexico, Texas and Utah, as well as Colorado, Kansas, Nebraska, Oklahoma and Wyoming.
How Latinos are perceived in the US
Amarante talked about the “mindset of how we perceive Latinos.” Because of geography and history, she said, “Latinos are perceived in the minds of many Americans as both foreign and domestic at the same time, but never fully part of the populace.”
That’s an exception, she argued, because most Americans look at a stranger and ask, “Are you American or are you a foreigner? But Latinos are perceived as both.” The source of her statements was the writing of Jamie Winders, titled, “New Americans in a New South City?”
The other perception of Latinos is that they are hardworking, a categorization that Amarante said is deemed to be a racialization by Cecilia Marque in her 2023 book, “Making the Latino South: A History of Racial Formation.”
According to Amarante’s slide, Marque wrote, “Jim Crow, for example, sought to establish racial distinctions unmoored in the wake of emancipation. Years later, the creation of the hard-working Hispanic would legitimize hyper-exploitation of Latino laborers.”
Amarante suggested that Americans tend to pigeonhole and exploit Hispanic people “because they’re good workers and we believe that they like laboring in the fields” and that the work they are willing to do for pay is “what they want to do with their lives.”
The ultimate question, she said, is how will Hispanic people in our country be incorporated in a Southern society or American society generally.
The history of immigration laws
Much of her lecture traced the history of laws passed by the U.S. Congress and of court decisions that related to minorities, citizenship and immigration.
In 1790, Congress passed its first law, which stated that the requirements for U.S citizenship were that a person be free and white and reside in the United States for two years.
“The unspoken part was that the person must also be a man,” she noted.
However, in 1848, under the Treaty of Guadalupe Hidalgo, all peoples who were physically present in the formerly Mexican territory for two years, which were mostly the 80,000 Mexicans living there, could become U.S. citizens. The treaty language did not specify that the Mexicans present were white, she said.
“The significance of the Treaty of Guadalupe Hidalgo is that a lot of territory had to be patrolled by U.S. soldiers,” she added. That’s why The Fugitive Slave Act of 1850 was passed as the first U.S. immigration law even though “it was intended not to keep people out but to keep people in,” she observed.
The Dred Scott Decision made by the U.S. Supreme Court in 1856 ruled that Black men are not citizens of the United States and therefore have no rights. After the Civil War, the 14th Amendment was added in 1868 to the U.S. Constitution. It states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
That amendment, Amarante said, “clarified that anyone who is physically born in the United States is a U.S. citizen.” This birthright citizenship, she pointed out, had the effect of making the U.S. citizenry more diverse.
The first significant law Congress passed that restricted immigration into the United States was the Chinese Exclusion Act of 1882, which banned Chinese laborers from immigrating to the United States until the act was repealed in 1943.
In 1891, the Immigration Bureau was created as part of what became the U.S. Department of Labor in 1913. Inspectors stationed at ports of entry began keeping track of immigration arrivals, who at the turn of the 20th century were being regarded as sources of needed labor.
In the civil rights case of Ricardo Rodriguez, a federal district court in Texas in 1897 formally recognized Mexicans as white (many had Spanish or Basque heritage) and eligible for all the privileges of citizenship even if not born in the United States.
“In the early 1920s, the U.S. suddenly needed more laborers. Mexican laborers were preferred because of the ban on Chinese labor, Amarante said.
“The Border Patrol didn’t really care about Mexicans coming into the country. Immigration Bureau personnel considered the Southwest the natural habitat of the people of Mexico. There was still an understanding that the people of Mexico had some claim to the United States.”
In 1921 and 1924 immigration laws were passed imposing restrictions on how many people from different countries can enter the United States. The total number of new immigrants per year was capped at 350,000 in 1921 and 150,000 in 1924. Certain groups, such as Africans and Asians, were excluded.
But “our neighbors from Mexico have been going in and out of the country for generations,” Amarante said.
“What this does is create an underclass of people who need to work, are expected to work and, in fact, are recruited to work, but will not have the privileges of being U.S. citizens.”
In 1940, Congress passed the Nationality Act of 1940, which states that “the right to become a naturalized citizen shall extend only to white persons, persons of African nativity or descent, and descendants of races indigenous to the Western Hemisphere.” Amarante said the Nazis’ cruel treatment of Jews and other people during World War II “made Americans feel ashamed because our restrictive immigration laws suggested we were no better than Adolf Hitler.”
Labor shortages in the United States prompted an influx of immigrant laborers, primarily from Mexico in 1942. “Unfortunately, that warm reception did not last long,” Amarante said. “In 1951, the United States initiated Operation Wetback, which deported over a million Mexican workers, many of whom were citizens or otherwise eligible to work in the United States lawfully.”
In 1952, the Immigration and Naturalization Act is passed, eliminating for the first time the racial restrictions to naturalization, but maintaining the national origins quotas.
“The U.S. still clings to the national origin quotas, meaning there’s a preference for people from all of the European countries at the exclusion of everybody else,” Amarante said.
In The Naturalization Act of 1965 passed by Congress during President Johnson’s administration, the national origins quotas were eliminated and replaced by quotas for visa categories such as scientists and other professional people who could do certain needed jobs.
Because undocumented immigrants were waiting in line for jobs, in 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA), which provided amnesty for immigrants who had lived in the country continuously since Jan. 1, 1982; the act also established penalties for employers who hired undocumented immigrants. She said few employers of undocumented workers have been affected by the act.
In 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act.
“What these laws do is create new categories of deportation and allow for immigrants to be detained,” she said, noting that immigration law is civil, not criminal, law.
After the 9-11 terrorist attack, The Patriot Act of 2001 was signed into law by President George W. Bush.
“It expanded the government’s authority to deport and detain immigrants suspected of terrorism without charge or judicial review,” she said, noting that she “represented a client who was detained indefinitely” because she was perceived as “a threat to national security.”
The Homeland Security Act of 2002, which consolidated 22 federal agencies (including Customs and Border Protection, Immigration and Customs Enforcement and Citizenship and Immigration Services), changed the view of immigrants from sources of needed labor to potential threats to national security, Amarante said.
DACA
In 2012, President Obama issued an executive order called the Deferred Action for Childhood Arrivals, which granted a temporary reprieve from deportation to immigrants under the age of 30 who had been present for five or more years in the United States and who entered the country before the age of 16.
“Deferred action means that the action on their deportation is deferred for two years,” she said. “It doesn't mean that they have any viable means to legalization. It means they should try to renew their temporary status every two years.”
She noted that some of her DACA clients had to wait so long for renewal that they ended up homeless.
“Waiting caused them to get their work permits late, and their landlords wouldn’t give them an extension on the apartments they were renting,” she said, noting later that “most economists agree that employed immigrants are good for the U.S. economy.”
Waiting seems to be a plight for many immigrants and their offspring. That includes waiting for political asylum, a job, deferred deportation, paths to legalization and citizenship, permanent residency, as well as recognition that one is fully American.
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