Manufacturing illegality: An Interview with Mae Ngai

Mae Ngai is the Lung Family Professor of Asian American Studies and Professor of History at Columbia University. On questions of immigration, citizenship, and nationalism, she is among the most influential legal and political historians in the United States.

Ngai’s book, Impossible Subjects: Illegal Aliens and the Making of Modern America, was published originally in 2004, with a second edition and a new forward in 2014. The Lucky Ones: One Family and the Extraordinary Invention of Chinese America was published in 2010.

She has written on immigration history and policy for the New York Times, the Washington Post, Los Angeles Times, and several other publications. She is also featured as an on-camera authority on The American Experience’s “The Chinese Exclusion Act” and other documentaries on public television.

Peter Costantini interviewed Ngai in October in her office on the Columbia University campus in Manhattan.

Peter Costantini: How did you come to be a scholar of immigration?

Mae Ngai: I was a so-called “non-traditional student.” I dropped out of school around 1972 or so. And then I worked as a community activist. After a while I got a job in a labor union here in New York, District 65. I wasn’t a shop organizer; I worked in the Education and Political Action Department.

Then I worked as a researcher for the Consortium for Worker Education. It delivers education services to union members: ESL classes, basic literacy, high-school GEDs, job training programs.

When I was there, I decided to go to graduate school. I’m the daughter of immigrants, and I was interested in immigration history, so I started reading. I was also interested in labor history. So those things in my own background and experience drove my interest.

PC: What was your family’s story?

MN: Well, my parents were trained as medical doctors in China and they came to the U.S. after World War II. So they had more middle-class, more privileged backgrounds. I grew up in the suburbs, where there were very few Asians at the time.

But I think my interest in immigration as a broader experience — as a mass phenomenon and as a policy question — came from my years working in Chinatown communities.

PC: At that time, where were labor unions on immigration?

MN: Oh, they were terrible. But in New York, the unions were much more supportive, because of course New York is full of immigrants. And our unions had a large proportion of our membership that were immigrants.

We worked with the garment workers union and the hotel and restaurant workers union. They were some of the unions that were far out in front on having a more progressive position on immigration.

But I remember, I think it was in the 90s, there were a lot of struggles inside the AFL-CIO over its position. Because its official position was against undocumented immigration, they were for employer sanctions. And so there was a lot of discussion about how employer sanctions aren’t enforced — they’re just used as a way to discipline workers if they make too many demands. That was a kind of an uphill battle.

But I think what changed was that more and more of the labor movement comprised immigrant workers. And they were the most militant workers, including the undocumented. And so I think that reality, that experience changed the minds of union leaders.

It was in 2000 that the AFL-CIO formally changed its position [to one more supportive of undocumented workers]. But it had already been in the making because of the lead of some particular unions: the garment workers, the service workers, the hospital workers.

How early immigration policies created “illegality”

In her book Impossible Subjects, Ngai traces the history of United States immigration policy from its origins in the Chinese Exclusion Act of 1882 up through the 1965 immigration act.

The book charts “the historical origins of the ‘illegal alien’ in American law and society and the emergence of illegal immigration as the central problem of U.S. immigration policy in the twentieth century,” Ngai writes. It locates that genesis in the “restrictive immigration laws that Congress legislated in the 1920s and the border-control measures implemented thereafter. Positive domestic law, not race, culture, or bad character, produced ‘illegal aliens’ — an insight that would be not be so novel but for pervasive stereotyping of Mexicans and other Latinos and Latinas in twentieth-century American society.”

The Immigration Act of 1924, also known as the Johnson-Reed Act, “marked both the end of one era, that of open immigration from Europe, and the beginning of a new one, the era of immigration restriction,” Ngai wrote. “The law placed numerical limits on immigration and established a quota system that classified the world’s population according to nationality and race, ranking them in a hierarchy of desirability for admission into the United States.”

The decades from 1890 to 1920 had witnessed probably the largest influx of immigrants relative to population in U.S. history, primarily from southern and eastern Europe. “Paradoxically”, she wrote, “the quota system, while closing America’s gates to the ‘undesirable races’ of southern and eastern Europe, redrew the color line around Europe instead of through it. The law also continued the explicitly racial exclusion from immigration and naturalization of Chinese and other Asian nationalities codified in laws of the late 19^th Century.”

Ngai continues: “Restriction also demanded a system of visa controls to track the allocation of quotas and border surveillance to ensure that only persons with the proper documents entered the country. The new regime had two major consequences: it remapped the ethno-racial contours of the nation and generated illegal immigration as the central problem in immigration law.”

The primary sponsors of the 1924 law were Representative Albert Johnson of Washington, and Senator David Reed of Pennsylvania. Both were leaders of the restrictionist movement, and both were notably motivated by eugenics and pseudo-scientific theories of race in vogue at the time. These theories went on to become the underpinnings of Nazi ideology, and its social and racial policies, in Germany.

PC: Attorney General Jeff Sessions reportedly told an interviewer on Breitbart News — Steve Bannon’s white nationalist network — that he thought the Immigration Act of 1924 had been good for America. What do you think Sessions meant by that?

MN: The Act reflected a history of “scientific” racism that divided the world into any number of races. The Europeans, for example, were divided by Nordic, Alpine, and Mediterranean races, and the Mediterraneans were the undesirables.

So Sessions’ message, I think, was pretty obvious: They want white people, and certain kinds of white people at that. Trump repeated this himself when he said he wants people from Norway, and considers people from Africa to be coming from so-called “shithole countries.” They’re pretty blatant about the kinds of people they want. They want Europeans, and they want certain kinds of Europeans — northern Europeans, the Nordics. And they don’t want people from the Global South, they don’t want brown people or black people or yellow people. They don’t want anybody that’s not that ideal.

I don’t know how much detail of the 1924 Act Sessions knows, but the ’24 Act also categorically excluded all Asians. Ironically, it did not exclude people from the Western Hemisphere countries, so it did have open migration from Mexico. But I don’t think that’s the part of the ’24 Act he was referring to.

The 1965 immigration law manufactured a new kind of “illegality.”

The Immigration and Nationality Act of 1965, known as Hart-Celler for its sponsors in the Senate and House, was an effort to rectify some of the worst injustices of the 1924 law. Senator Philip Hart of Michigan and Representative Emanuel Celler of New York were both prominent liberals, as was Senator Ted Kennedy of Massachusetts, who also promoted it.

However, the final version of Hart-Celler caused long-running damage to a functional immigration system by creating a template for draconian restrictions on Western Hemisphere immigration, which had not previously been subject to quotas.

“[I]f the abolition of national origins quotas in 1965 was an inclusionary reform,” wrote Ngai, “Hart-Celler was also an illiberal act because it continued the regime of numerical restriction and imposed it on the entire world, especially on the countries of the Western Hemisphere, which previously had no numerical limitations. The global nature of restriction and the application of equal limits on all countries, regardless of size, need or relationship to the United States, reflected the ethos of formal equality of the civil rights era. Ironically, it has been the single most important reason for unauthorized migration since 1965. The Immigration and Control Act of 1986 legalized nearly three million undocumented immigrants, but because IRCA did not change the basic structures of restriction unauthorized entry continued and in fact soared from 1990s to the late 2000s as part of the United States’ long economic boom.”

The Trump administration’s policies

Two senators were leaders in imposing Western Hemisphere quotas: centrist Democrat Sam Ervin, from North Carolina, and moderate Republican Everett Dirksen, from Illinois.

MN: [Ervin and Dirksen] started to worry about what they called “population pressures” in Latin America, and so they wanted to close the door.

The liberals didn’t really have an answer, because they thought the whole point of a new system was that it was going to be fair, equalizing all the quotas and making them global. Although actually it was retrogressive — it was a reactionary step for Western Hemisphere countries, which had never had numerical quotas.

In fact, all the [proposed] bills until the 11^th hour, including the Kennedy bill, had the Western Hemisphere exemption [to quotas]. That was a long-standing foreign policy position. It was about our relations with Canada and Mexico. And a kind of belief that Mexican farmworkers were seasonal, so there wasn’t really a problem. I mean, they didn’t understand anything about the West or the Southwest.

At the 11^th hour, though, the moderates in the Congress, in the Senate, held the repeal of national origins hostage to Latin American, Western Hemisphere quotas.

Hart-Celler ended up with a hemispheric quota for the Western Hemisphere like half or maybe 40 percent of the total number [for the entire world]. This [temporarily] enabled more people to come in from Mexico under this hemispheric quota.

This quota for the Western Hemisphere did not yet have country quotas within it. It was a stalling tactic by those in Congress who knew that imposing a 20,000 cap on Mexico would wreak havoc.

[Note: Hart-Celler imposed a quota for the whole Western Hemisphere of 120,000. A 1976 amendment to the 1965 act implemented the quotas of 20,000 for each country. By comparison, the Bracero Program brought in a yearly average of about 200,000 temporary Mexican guest workers to work in agriculture from 1942 through 1964. It was terminated with the passage of Hart-Celler, but many of those workers continued coming and going.]

Once [country-specific quotas] passed, they knew it was going to be trouble. Because you can’t clamp a quota of 20,000 on an area that sends hundreds of thousands. So they appointed a commission to study it, which is always their procrastinating move.

The commission actually said there would be dire consequences if this was imposed. And the Congress said “Well, I guess that’s too bad.”

And that’s why you see, in the late 1970s and by 1980, this so-called crisis of unauthorized movement.

PC: Trump, Sessions, and Trump’s hardline adviser Stephen Miller have been introducing an onslaught of new measures that attack undocumented immigrants, asylum seekers, refugees, green-card holders, and naturalized citizens. Do you think just the ideology of the 1924 Act explains this? Or are there other things about this administration that would explain its whole phobia around legal immigration, their efforts to take away green cards and naturalization?

MN: Yeah, I think there’s too many brown people in this country for their tastes — that’s what it all comes down to. And Latinos vote. They’re not all illegal. Two-thirds of all Hispanics are citizens. And they’re not all 18, but more and more become 18 every day.

This is the Trump administration’s chief fear. I think it’s pretty obvious: It’s not just about people who are “illegal” — that’s a proxy for racism against all Latinos.

I think there are three things going on.

First is this kind of terror that’s been unleashed against immigrant communities: the sweeps, the raids into meatpacking plants, communities, roadblocks. And then they stopped Greyhound buses in Ohio and Vermont and demanded to see proof of citizenship.

This is all aimed at just terrorizing immigrants. They cannot deport 11.5 million people, which is the population of undocumented. But they can make everybody very frightened. So that’s the first thing they’re doing.

The second thing they’re doing is trying to denaturalize people. Or even people who are native-born citizens, they’re trying to question their birth. There were incidents where they were denying passports to Mexican-American people in the borderlands area.

The third thing they’re doing is treating asylum seekers as though they were undocumented immigrants. And that’s illegal. They have the right to come to the door and ask for asylum.

But Trump’s people are treating them as border violators. They’re taking their children. This is the most horrendous thing we’ve seen since this administration came to power, this taking of babies. And now they’re tear-gassing children as well. You can’t even give words to how bad it is. And that’s because these asylum-seekers are from Central America.

They’re shoving them into this new category. Sessions says the asylum seekers are “exploiting a loophole.” It’s not a loophole: it’s the law. But by calling it a loophole, he can then justify treating them as unauthorized border violators, which is what he thinks they really are.

And then the last thing they’re doing is, they want to change the immigration system so there’s less legal immigration.

They want legal immigration to be restricted to whites. And they’re going to do that by eliminating family sponsorships.

So they’ve now given “chain migration” a dirty name. “Chain migration” has always been a neutral social science term to describe how most migrations take place, including Trump’s family. And now they want to stop family migration, because family migration, they consider, is too colored. And they want to replace it with some kind of “merit-based system” for high-net-worth people, people with high skills.

The problem is that a lot of those people who come under those categories are from Asia. There aren’t are big incentives for European professionals and people with technical skills to come to the United States. So I don’t know what they’re going to do about that.

But they’re going to cut off all these other avenues of legal migration. That won’t end migration from the global South, but it will ensure that migration will now be either unauthorized or through temporary guest-worker status.

Because we’re still going to have the same jobs that need to be done. It’s a way to create another caste, a mudsill class of colored people who do the dirty work, who do the service work, who work in the poultry factories and clean the hotels. And they won’t have any access to the politics. That’s what they want.

PC: It’s a comprehensive vision.

MN: It’s a very comprehensive vision. They’re not stupid. And in my opinion, this is also one of the first fronts in the move towards an authoritarian government.

Because immigrants don’t have rights that citizens have. I mean, they do have rights, but they don’t have rights in removal and entry proceedings. I think [Trump’s people] are pushing the envelope to see how much they can get away with.

The federal courts have not been sympathetic. A federal court ordered the docket to be reinstated recently and said that they cannot indefinitely detain asylum seekers. Because they’re detaining people who have passed the “credible fear” test, they should definitely be released.

The sanctuary jurisdictions have been upheld, except in Texas, So I think that there’s resistance both from grassroots protests and from the judiciary.

But now we have a Supreme Court… In his first oral arguments, new Justice Brett Kavanaugh made it clear that he’s hostile to immigrants.

PC: Do you see Trump’s initiatives as a break from previous immigration policies, or as a continuation or acceleration?

MN: I think they’re a return to the mentality of 1924 act with regard to racial preferences in admission, and a continuation or acceleration of the 1965 and 1996 laws on deportation.

 

Sensible immigration policies

PC: If you could completely throw away our immigration system and rewrite it — all the aspects of it, from guest workers to all of the laws — what would you come up with?

MN: Well, from a global perspective, we have to understand that migration is the product of an unequal distribution of wealth in the world. So I think people who live in the wealthier nations can do two things: One is that they can adopt practices that reduce inequality. I don’t know if that’s likely to happen. And then I think we can look at migration not as a threat, but as both a responsibility and an opportunity.

We give away less than half a million new green cards yearly, and another half million through adjustment of status here or there. They’re a student, or they get a job, or they marry somebody, or they’re a family member of a citizen, or they’re outside the quota. The total is about a million people who become permanent residents.

We had about a million people come here annually in the 1910s, and we had a much smaller population. So I don’t think there’s a problem of absorption, of being overrun, or anything like that.

I think if we understand that immigration restriction is a kind of protectionism for the wealthier nations, then we have to think about what our moral response to that is. Because we are in America not because we are so great, but by the accident of our birth. Why are we superior to somebody who happens to be born in India or Honduras?

That’s hard for a lot of Americans to swallow — that they have the same moral worth as somebody from Honduras. But I think that should be our starting point.

Then policy-wise, well, we can raise the ceiling on how many people can come. I don’t have a number, but it can be raised.

We can treat unauthorized entry as a kind of inevitability of any restriction. We can build into the system a self-correction.

I have advocated for a statute of limitations on immigration violations. And then we don’t have to go through these agonizing debates every 10 or 20 years about mass legalizations.

We had it in the past. A statute of limitations used to be the case until — was it 1996? It was written into the 1952 McCarran-Walter Act that you could get a suspension of deportation if you lived here for seven years, and you had a citizen spouse or children, and no criminal record. And so a lot of braceros [Mexican laborers brought here under a guest worker program from 1942 through 1964] actually got legalized through that process. In other words, we have had programs that recognize that with time, people establish ties and roots in their community. And they shouldn’t be just be tossed out.

And they contribute to the economy, they’re not freeloaders. People don’t come here to freeload, they come here to work.

So if we understand that unauthorized entry is integral to restriction — it’s not some anomaly — and we understand that unauthorized entry is not exceptional — it’s kind of inevitable — then you have to build in a kind of correction.

How long should someone have to be here before they can adjust their status? That’s up for discussion. Two years, two weeks, 10 years? I think 10 years is too long.

Actually two-thirds of the undocumented people who live outside of the border area have been here for 10 years.

And then I think if we’re going to have a system that allocates visas, it should not be on this principle that we have now, which is that we treat every country the same. Because Mexico has more people and more demand than, say, New Zealand, but they have the same quota.

PC: You mentioned the Hart proposal (which wasn’t incorporated into the final 1965 immigration law) that would have lifted all quotas for the Western Hemisphere. Is there a need for quotas for the rest of the world? If we were looking at a new bill, what do those quotas for everywhere else accomplish?

MN: Well, if you’re going to have some numerical limit, then you have to figure out how you’re going to distribute those numbers.

Hart’s bill was a combination of size — he used population size as a kind of proxy for need — and the other variable he used was family ties. And then he had a provision where it was reviewed and adjusted every five years.

It was a very complicated formula, which I think is one reason why it didn’t go forward. The Kennedy bill was “everybody gets the same quota,” which was much more simple. And it also resonated with the civil-rights ethos of formal equality: you treat everyone the same. But I think Hart’s formulas might be worth revisiting.

Note: This interview has been edited for clarity and brevity.