such aid be citizens. . . . In other words, one old person out of every five is ineligible for state old age assistance because he or she has failed to become a citizen.”17
The federal Social Security Act, passed in 1935, established certain basic federal contours for state old-age assistance programs, among them the proviso that state plans could not include “any citizenship requirement which excludes any citizen of the United States.”18 But the phrasing left it up to each state to decide what, if any, coverage to provide to noncitizens. In April 1936, thirty-eight of the forty-eight states, plus the District of Columbia, had state old-age assistance laws in place. Of these thirty-nine jurisdictions, twenty-eight required U.S. citizenship as a prerequisite to receiving old-age aid.19
Consequently, the new Immigration and Naturalization Service (INS), reuniting in 1933 the Bureau of Immigration and the Bureau of Naturalization into a single agency, began uncovering numerous cases of immigrants who were naturalized illegally before 1906 and requested old age benefits. Under the Justice Department’s original 1909 Circular interpreting and applying the Naturalization Act, the citizenship—and social security benefits—of these individuals would be protected.20
However, for the large number of immigrants fraudulently naturalized after 1906, the INS tightened the noose. On November 17, 1938, it instituted denaturalization proceedings against five immigrants, all of whom were naturalized in 1936 or 1937 by a court that had not possessed jurisdiction since February 3, 1912.21
During this time of economic crisis, various regulations restricted legal employment to American citizens. A 1933 study by social scientist Harold Fields found that, starting in 1928, “the majority of jobs in basic industries and also membership in the majority of the largest unions were reserved to American citizens.” In fact, Fields listed “eighteen professions, eleven types of public employment, forty-three kinds of occupational licenses, and ten miscellaneous categories of activity which required either first papers or full citizenship according to the statutes of various states and the District of Columbia.”22 Historian Mary Anne Thatcher writes that, by 1941, “eight or nine of every ten jobs in the United States were denied to aliens by statute or local ordinance, by the regulations of licensing boards, or by the prejudices of private employers.”23 Employment was becoming ever more tied to citizenship.
When the Works Progress Administration (WPA) was created, administrator Harry Hopkins was hard-pressed to answer congressional requests to provide data on how many aliens were receiving public services. He responded only that, “Many of the initial office forms designed for the WPA provided no place for giving information on race, religion, citizenship, or politics.”24 Despite the resolve of Hopkins and Roosevelt, Congress passed in 1936 the first restrictions on employment by the WPA, prohibiting the agency from “knowingly” hiring aliens who were in the United States illegally, though also directing that “prompt” employment was not to be infringed upon by any new controls.25
By 1939, the WPA had banned noncitizen employment entirely.26 Applicants for jobs and recipients of agency services were often asked to fill out informational forms about their citizenship. These forms would eventually reveal a certain number of illegal or fraudulent naturalizations that had not been cancelled due to the protections afforded by the 1909 Circular. Many of the fraudulent naturalizations uncovered were performed for the parents of Depression-era aid recipients. The citizenship they received when they were minors could be one day at risk.27 In order to avoid a situation that could lead to a sudden loss of social benefits and jobs or to deportation, these citizens were often advised to seek their own denaturalization, so that they could reapply and regularize their citizenship status.
These requirements encouraged foreign immigrants to naturalize. And this pressure for naturalization also, inevitably, increased naturalization fraud. An investigation that began in December 1933 uncovered evidence of systematic fraud in naturalization cases in the New York district, perpetrated since 1924 “by racketeers acting in collusion with employees of this Service having access to official records.” Fifty-six investigators were assigned to examine 4 million arrival records and 150,000 naturalization petitions, files, and court records in New York and Brooklyn over a nine-year period. Evidence of fraud, such as altered boat manifests and missing files, was detected. Bribes of between $100 and $1,200 had been extracted from immigrants. The payments collected even at this early point in the scheme totaled over a million dollars.28
In April 1935, Samuel H. Kaufman, Special Assistant to the Attorney General, was assigned to the federal district courts surrounding the port of New York to help organize the prosecution of the large number of local denaturalization cases, including those of “aliens who have entered the country unlawfully, persons who have aided in such entry, and perpetrators of naturalization fraud.”29 In 1937, four years after the fraud investigation had begun in New York, 174 indictments were handed down in fraudulent naturalization cases. Among those indicted were ten former employees and two then-current employees of the Immigration and Naturalization Service. In all, 3,336 aliens were arrested for deportation proceedings, 140 certificates of naturalization were cancelled, and an additional 279 naturalizations were pending cancellation.30
While denaturalization was higher than ever, the transfer of power between state courts and the federal administration concerning naturalization accelerated in several stages.
First, the Nationality Act of 1940 extended to the state courts the system of INS examiners that was already operating in conjunction with the federal courts.31 State courts that did not elect to adopt the new system were permitted to continue to grant citizenship under the original procedure, requiring the full examination of the petitioner and witnesses at the final hearing. But, as time went on, nonadopting courts were fewer and fewer in number. Court reliance on the conclusions of examiners made judicial naturalization a mere formality (since judges invariably and unquestioningly followed the recommendations of the Immigration and Naturalization Service). As a result, the 1940 Act, in effect, bypassed the courts and conferred the power of designation of examiners directly on the Commissioner of Immigration and Naturalization.
Second, on May 22, 1940, at the suggestion of Undersecretary of State and close confidant Sumner Welles, Franklin Roosevelt announced the transfer of the Immigration and Naturalization Service to the Department of Justice.32 Since January 1940, Roosevelt had been under pressure from Congress to remove Secretary of Labor Frances Perkins from her post. She had been accused of not enforcing immigration laws when she lobbied to welcome Jewish refugees from Europe and obtained the right to remain for German Jewish visitors already in the United States at the outbreak of World War II.33 And when Perkins dismissed charges against the alleged Communist union leader Harry Bridges, her decision provoked a political firestorm.34
Welles, to whom the president often turned “for fresh ideas and quick action,”35 had convinced him that the transfer of the INS to the Department of Justice was justified because there were various aspects of naturalization and of immigration problems in which the collaboration of the courts was essential, and because, in many cases, investigations were necessary and had to be carried out by the FBI.36 The transfer would also permit Roosevelt to keep Perkins in his cabinet, while placating her opponents.37
On May 21, Roosevelt summoned Attorney General Robert Jackson for a lunch at the White House. “Shortly after lunch arrived,” reported Jackson, “he handed me an Executive Order which proposes immediate transfer of the Bureau of Immigration and Naturalization from the Department of Labor to the Department of Justice.” Jackson recalled that Roosevelt “turned to his soup and left the move to me.” He read the order and told the President that “he had no desire to undertake this task; that it was one which no man could long perform acceptably in a period of public excitement; that there was somewhat the same tendency in America to make goats of all aliens that in Germany had made goats of all Jews.” Jackson explained, “I told him that I favored a much stronger
