quota of 20,000, leaving only 5,797 visas available for Mexican immigrants between January 1 and September 30, 1977. In De Avila v. Civiletti,30 the Seventh Circuit Court of Appeals sustained the State Department’s approach even though it was “obvious that Congress … through inadvertence failed to inform the State Department how to administer during a fraction of the fiscal year a statute designed to apply on a full fiscal year basis.”
The effect on Mexican immigration of the 1977 imposition of the preference system and 20,000 visa limitation (modified in 1990) is not surprising. Mexico and Asian countries share the largest backlogs in family reunification categories.31 For example, the category for married sons and daughters of U.S. citizens (Third Preference) for Mexico is backlogged more than eight years. Brothers and sisters of U.S. citizens (Fourth Preference), a category which has been under constant attack by retiring Senator Alan Simpson, must wait at least eleven years if they are from Mexico and eighteen years if from the Philippines.
Mexicans continue to be victims of highly publicized INS raids. Dubbed “Operation Jobs” or “Operation Cooperation,” they are reminiscent of “Operation Wetback” and raids directed at Asian immigrants in the past. In what the INS labeled “Operation Jobs” in April 1982, five thousand people of primarily Latin appearance were arrested in nine metropolitan areas across the country.32 Critics of the raids charged that the operation was directed at Mexicans, whipped up antialien hysteria, and caused much fear in the Latino community, while providing no jobs for native-born citizens.33 Curiously, “Operation Jobs” was launched during the same week that restrictive legislation (the Simpson-Mazzoli Bill) was being marked up in the senate subcommittee on immigration. The raids also coincided with Congress’s consideration of additional funds for the INS.
“Operation Jobs” merely highlighted what had been going on for many years. A review of litigation initiated long before the 1982 operation indicates that the INS had long focused its sweeps on persons of Latino descent.34 In fiscal year 1977, for example, of the deportable aliens arrested, more than 90 percent were Mexican.35
As the INS enforcement budget grew larger and larger during this period, the Supreme Court, swayed by arguments that the undocumented alien problem was worsening, gave more flexibility to INS enforcement strategies. First, in 1975, in United States v. Brignoni-Ponce,36 the Court held that under certain circumstances, roving Border Patrol officers could stop motorists in the general area of the Mexican border for brief inquiry into their residence status if there was reasonable suspicion that passengers were undocumented. Next in 1976 in United States v. Martinez-Fuerte,37 the Court carved an exception to the Fourth Amendment’s protection against unreasonable search and seizure, by allowing the Border Patrol to set up fixed checkpoints located on major highways away from the Mexican border for purposes of stopping and questioning individuals suspected of being undocumented aliens. Then in 1984 in INS v. Lopez-Mendoza,38 the Court held that even if the INS violated the Fourth Amendment’s protection against illegal search and seizure in its apprehension of undocumented aliens, illegally obtained evidence could still be used against the aliens in deportation proceedings.
THE HAMMER FALLS AGAIN ON OTHER IMMIGRANTS
The history of anti-immigrant sentiment that was manifested in local and state laws directed against documented immigrants such as alien land laws and foreign miners’ taxes has modern corollaries that attempt to limit certain occupations and professions to citizens. As a general rule, such state restrictions have been deemed unconstitutional by the Supreme Court. For example, in In re Griffiths39 the exclusion of lawful permanent residents from the practice of law in Connecticut was invalidated, and in Sugarman v. Dougall,40 a New York law providing that only U.S. citizens could hold permanent state civil service positions was struck down. However, the protection that the Court had provided in this area began to erode around the time that more flexibility was being given to INS enforcement activities. Beginning with Folie v. Connelie 41 in 1978, the Supreme Court has deferred to the states requiring U.S. citizenship when the government job entails a public function, or involves the “formulation, execution, or review of broad public policy.” Thus, in Folie, the Court held that New York could bar aliens from holding state law enforcement positions. A year later in Ambach v. Norwick,42 the Court ruled that public schoolteaching (even teaching French in high school!) fell within the public functions exception and could be limited to citizens as well.43
The clamoring and complaining about immigration has not only been about Mexicans, of course. Consider the reaction to Southeast Asians on refugee policy. The 1952 overhaul of the immigration laws granted the attorney general discretionary authority to “parole” into the United States any alien for “emergent reasons or for reasons deemed strictly in the public interest.” Although the original intent was to apply this parole authority on an individual basis, the 1956 Hungarian refugee crisis led to its expanded use to accommodate those fleeing communist oppression. The parole authority was also used to admit more than 15,000 Chinese who fled mainland China after the 1949 communist takeover and more than 145,000 Cubans who sought refuge after Fidel Castro’s 1959 coup.
The satisfaction of policymakers with the status quo began to evaporate with the upsurge in Asian entrants that started in the mid-1970s. The watershed event was the fall of Saigon in April 1975. Initially, the United States merely wanted to evacuate fewer than 20,000 American dependents and government employees. However, to invoke numerical restrictions in the midst of a controversial and devastating war would have been unconscionable, and evacuees soon also included former employees, some 4,000 orphans, 75,000 relatives of American citizens and residents, and 50,000 Vietnamese government employees and officials. Between April and December 1975, the United States thus admitted 130,400 Southeast Asian refugees, 125,000 of whom were Vietnamese.
The exodus did not stop there. By 1978 thousands more were admitted under a series of Indochinese Parole Programs authorized by the attorney general. Following the tightening of Vietnam’s grip on Cambodia, several hundred thousand “boat people” and many Cambodian and Laotian refugees entered. In fact, annual arrivals of Southeast Asian refugees increased almost exponentially: 20,400 in 1978, 80,700 in 1979, and 166,700 in 1980.
The unpredictable numbers of Southeast Asian refugees provided the impetus for reform and ultimately, the passage of the 1980 Refugee Act. The new law provided two tracks for refugee admission into the United States. The first provides the President with the power to admit refugees who are outside the United States only after consultation with Congress, while the second relates to procedures by which aliens in the United States or at ports of entry may apply for asylum. And while the United States has allowed in more than a million refugees under the first track since 1980, the numbers have been much more regulated than under the previous parole authority.
In contrast, only between five and ten thousand asylum applications have been approved per year. To say the least, the United States has not reacted warmly to notable groups who have reached our borders seeking asylum under the second track. When Haitians, El Salvadorans, Guatemalans, and Chinese boat people began arriving in significant numbers, the powers-that-be were quick to label them economic rather than political
