The Washington PostDemocracy Dies in Darkness

The debate over immigration often relies on murky assumptions about the law

A Haitian migrant crosses the Rio Grande to get food and water in Mexico, as seen from Ciudad Acuña, Mexico, on Sept. 21. (Pedro Pardo/AFP/Getty Images)

When House Republican Conference Chair Elise Stefanik’s campaign team ran an ad on Facebook this month echoing far-right rhetoric about Democrats encouraging immigration to “overthrow our current electorate,” the irony was pretty obvious. “Stefanik” is a surname of Polish origin; whatever blend of ethnicities and origins led to her birth, it’s clear that some of her ancestors were immigrants to the United States who to some extent overthrew some electorate, somewhere, in some way. What’s more Poles, like other Eastern Europeans, were often disparaged as undesirable, a disparagement that continued well into the 20th century in the form of jokes about people of Polish ancestry. Yet here was her campaign, disparaging immigrants as a threat.

Aha!, many of her defenders insisted, you’re missing the point. Stefanik, they assured me, was only frustrated about illegal immigration, whereas her family came to the country legally. It’s a convenient bit of rhetoric, drawing a line that seems to slice right through what might otherwise be seen as hypocritical. Unfortunately, though, it both misunderstands immigration in the past and immigration now — even as it makes assumptions that are not obviously defensible.

What the law was

It wasn’t until 1875 that the United States had any restrictions on immigration, as a useful timeline from Pew Research Center makes clear. Even that limit wasn’t particularly strict, however, being focused on barring criminals from entry. Over the next few decades, the list expanded to include anarchists, prostitutes and those who had a contagious disease. The Border Patrol was created in 1924, but there were already mechanisms aimed at blocking illegal immigration.

The first limit targeting a particular population came in 1882, when immigration from China was banned under the Chinese Exclusion Act. That lasted until 1943 — for a quarter of the history of the United States. Even then, immigration from China was limited for another several decades. In 1917, immigration from Asia was limited more broadly under the Asiatic Barred Zone Act.

Until 1921, if you came from Europe, didn’t have a criminal record and weren’t sick, you could come to the United States. That was about it. You left your home in Warsaw, got on a ship, arrived in New York harbor. You’d immigrated legally.

Then, as now, that immigration triggered alarm from established residents of the country. The Washington Post’s editorial board opined in 1920 that the “eradication of foreignism is the outstanding task which America must confront in the next decade.”

“[T]he alien scum from the cesspools and sewers of the Old World has polluted the clear spring of American democracy,” The Post wrote. “While hundreds of detectives scour the haunts of the anarchist and the terrorist in the slums and outlandish foreign quarters of American Babels, the doors at Ellis Island stand wide open to fresh hordes of warped and half-crazed deserters from Europe.”

So, in 1921, Congress instituted new limits on migration: Migration from countries in the Eastern Hemisphere was capped at 3 percent of the foreign-born population in the 1910 census. (Period A on the graph below.) Eighty-seven percent of foreign-born residents of the United States at that point were from Europe, according to the 2006 paper “Historical Census Statistics on the Foreign-Born Population of the United States: 1850 to 2000,” written by the Census Bureau’s Campbell Gibson and Kay Jung. The vast majority of that group came from Northern and Western Europe. The intent was unsubtle. Even so, the rules were tightened in 1924 to limit immigration to 2 percent of foreign-born residents in the 1890 census, meaning that instead of the limit from Poland being 3 percent of 1.2 million (or about 36,000) the figure fell to 2 percent of 182,000 (about 3,600). (Period B.)

(On the graph below, 1940 and 1950 are excluded because, as Gibson and Jung write, “data on the foreign-born population by country of birth in census publications for these years are limited almost entirely to the White population.”)

The quotas were shifted in the early 1950s (including lifting restrictions on migration from Asia; period C) and lifted with the Immigration and Nationality Act of 1965. That law retained caps on overall immigration and set new targets for who would be prioritized for entry. Decades of low immigration and, correspondingly, low numbers of foreign-born residents began to reverse. Now, migration from Asia and Latin America is far more common than migration from Europe.

This is the context for claims that Stefanik’s family (or others railing against new migration) immigrated legally. Immigration laws were fundamentally different a century ago, and restrictions that then emerged were tailored specifically to target countries such as those in Eastern Europe. But it’s also worth pointing out that, even with these looser rules, one can’t universally assume that no immigration laws were violated. When Fox News pundit Tomi Lahren criticized immigrants in 2018, a researcher found that her great-great-grandfather had been indicted on a charge of forging naturalization papers. (He was later acquitted.)

What the law is

The flip side of all of this is that the migrants entering the United States now are often painted with a broad brush of illegality. The migrants from Haiti who are corralled under a bridge in Del Rio, Tex., are often cast as unwelcome because of how they entered the country, an assertion that itself misunderstands the law. At issue is whether those who are crossing the border are requesting asylum in the United States. If they do, there’s a process that’s triggered that moves them into a sort of legal limbo.

In 2019, The Washington Post’s Nick Miroff explained how it works: A migrant presents himself to authorities, and an official evaluates whether the migrant is expressing a credible fear of being returned to his home country. If so, the migrant is allowed to remain in the United States, awaiting a hearing before a judge. Usually, those judges don’t grant asylum, but in the interim, the migrants are often allowed to remain.

David Leopold is an immigration attorney in Cleveland and the past general counsel of the American Immigration Lawyers Association. He spoke to The Post by phone Tuesday to discuss how asylum works and the situation in Del Rio.

“The statute that covers the law written by Congress that covers applications for asylum says specifically — I’m paraphrasing, of course — that an individual does not have to have entered legally,” he explained. “That anybody on the soil of the United States, regardless of how they entered, is eligible to apply for asylum through the statute.”

This doesn’t apply in some cases, as with someone who had previously been deported. But otherwise, he said, “the law is crystal clear.”

In cases where a migrant has claimed asylum and is allowed to stay, Leopold said, it’s not really the case that they are then here legally. If you are in the United States, awaiting an asylum hearing, you are instead “here in an authorized period of stay,” Leopold said. The flip side of this is that saying that the migrant is in the country illegally is also misleading.

It’s not much more complicated than that. There are other factors that might affect a judge’s ruling on asylum, such as whether the migrant left the United States at any point after arriving or if he’d passed through other countries before claiming asylum here. The first point is of interest because of the situation in Del Rio, where migrants have been crossing back into Mexico to buy food and water. The second was a focus of the Trump administration. But those don’t affect their status in the country, Leopold said, though they may be considerations for the judge who eventually hears their asylum cases.

“Congress actually took into account that people arrive in this country without papers and arrive in this country through all sorts of different ways out of desperation,” Leopold explained. “And they were not going to cut them off from asylum applications.”

Since President Biden took office, there has been a sharp increase in apprehensions at the border, a shift that’s been a point of criticism for the president’s opponents. Those figures, too, are often misunderstood. As we’ve explained before, the majority of those apprehended at the border are quickly slated for removal from the country using a Trump-era rule centered on the coronavirus pandemic. (This is a key frustration of Biden’s allies about his handling of immigration.) Many of those slated for removal have been removed previously. Of those who aren’t removed, about half remain in custody until deportation or asylum hearings. The other half are granted humanitarian release until they have a hearing before an immigration judge. Often those released are members of families with children.

It is still the case that tens of thousands of migrants are released into the United States each month. But it is not the case that these are necessarily migrants in the country illegally. Often, they are released pending final adjudication of their status. Data compiled by TRAC at the University of Syracuse through May 2019 indicate that six in seven families released into the United States attend the eventual hearings, though given the backlog in immigration courts, that can be months or years away.

There’s a murkiness to this that makes clear rhetorical lines hard to draw. Nothing about the ad from Stefanik’s campaign focused only on “legal” immigration, mind you, but even that’s somewhat beside the point. The question at hand is whether those apprehended at the U.S.-Mexico border deserve to be cast as being in the United States illegally and whether those who are the descendants of people who might have arrived before the imposition of immigration limits deserve to be praised for having followed nonexistent laws.

As always, your answers probably flow from your politics.