The rules about who could and could not come and live in the United States have changed many times over the last 250 years, but exactly when restrictions were first put on immigration might surprise you.
Today, walking us through the myriad qualitative and quantitative systems surrounding immigration policy is Muzaffar Chishti, Senior Fellow and Director of the Migration Policy Institute.
Here are some links to our episodes on: The Chinese Exclusion Act, ICE, and Becoming a US Citizen.
Transcript
Speaker1: Dhs says federal agents have arrested some 4000 illegal aliens in Minnesota.
Speaker2: Us cutting off health care benefits for illegal aliens. They prioritize taxpayer funded benefits for illegal aliens.
Speaker3: I'd like to see something done about the illegal alien problem that would be so sensitive.
Speaker4: By the large numbers of illegal aliens entering our country.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are exploring the logistics, [00:00:30] politics, and linguistic peccadillos involved with a very charged term illegal immigrant. Now hold on, hold on everyone. I have not used that expression since 2009. Since the day I first learned, it was not the proper term to use for someone who was not authorized to reside in the United States.
Hannah McCarthy: Yeah. How did you first learn that?
Nick Capodice: Well, I was learning my very first tour at the Tenement Museum [00:01:00] in New York, and I was using that term to describe a Sicilian woman, Rosario Baldeschi, who came to the US through Canada in the 1920s, and the tremendous, patient, kind man who was training me, said, hold on a second. We prefer not to use that word.
Hannah McCarthy: Did he give you a specific reason?
Nick Capodice: He did. And that reason is kind of this whole episode - where we will dig into our country’s history with - and laws around immigration. So stick around.
Hannah McCarthy: All [00:01:30] right. Nick. So what were like the first laws in the United States that pertain to who could immigrate to this country and who could not?
Muzaffar Chishti: It's an interesting question. I mean, I like to tell people that we had no immigration laws at the federal level in the country till 1880.
Nick Capodice: This is Muzaffar Chishti.
Muzaffar Chishti: I'm Muzaffar Chishti, I'm a senior fellow at the Migration Policy [00:02:00] Institute.
Nick Capodice: Muzaffar is a lawyer who specializes in immigration. He has testified in front of Congress numerous times, and several years ago, he worked as director of the immigration project for the Ilgwu, the International Ladies Garment Workers Union.
Hannah McCarthy: Oh wow. You have told me a lot about them.
Speaker8: Look for the union label when you are buying white coat, dress or glove.
Hannah McCarthy: So Muzaffar said there were no federal immigration [00:02:30] restrictions until 1880.
Nick Capodice: That is correct.
Hannah McCarthy: Were there state restrictions?
Muzaffar Chishti: Sort of like we would. New York State would impose a tax on shipping companies that brought people from Europe to the US. It was literally called the head tax, which means we counted the number of heads that were brought to the shore and then charged them for bringing people in. Uh, and the second thing I tell [00:03:00] people that we had naturalization laws before we had immigration laws.
Nick Capodice: Naturization by the way means becoming a citizen.
Hannah McCarthy: When was the first naturalization law passed?
Nick Capodice: Almost at the very beginning of our country. It was the Naturalization Act of 1790 which said, to become a citizen of the US, you had to be in the country for two years, and you had to be in your state for one year.
Hannah McCarthy: And that was it. There were no other restrictions.
Nick Capodice: Well, there was one, a very big one.
Muzaffar Chishti: And that was [00:03:30] basically reserved for free. White men, black men and Native Americans were clearly excluded from that. So in the 1790 statute was for the first time the word alien was used because it was a naturalizing aliens who were present in the United States.
Nick Capodice: So that is the first use of the term alien in state law. And then eight years later, the United States passed the Alien [00:04:00] and Sedition Acts, which was the first time in federal law that the word alien was used.
Hannah McCarthy: All right. Now, we have talked about these acts a few times on Civics 101, but can you just go over them real quick?
Nick Capodice: Absolutely. The Alien and Sedition Acts were for acts passed in the John Adams administration on naturalization becoming a citizen. Sedition, which is you're not allowed to say false or malicious stuff about the government and the alien friends, which allowed the president to deport foreigners [00:04:30] deemed dangerous. And the alien enemies acts.
Hannah McCarthy: And all of these acts are expired or were repealed, save for one.
Nick Capodice: Save one. The Alien Enemies Act, which allows a president to detain foreigners in times of war or invasion. This act has been invoked in three wars and one time outside of a war scenario, and it was by Donald Trump in 2025.
Speaker9: I will invoke the Alien Enemies Act of 18 [00:05:00] zero of 1798. Seven. Think of that. 1798. That's when we had real politicians that said we're not going to play games. We have to go back to 1798.
Muzaffar Chishti: And just to be more historical about it, the word alien literally comes from the crown. We inherited everything from Britain. Oddly, the birthright citizenship debate that we're having today [00:05:30] is a is a relic of the Crown during the British Empire. You either owed your allegiance to the crown or you're an alien. You're an alien was someone who did not own their allegiance to the King, and therefore everyone who was born on the territory of the king was accepted as a citizen at birth and the word illegal alien. I don't think was used in our statute until 1986.
Hannah McCarthy: Okay. [00:06:00] In 1986, this was the Immigration Reform and Control Act that Ronald Reagan signed.
Nick Capodice: Exactly. This act basically made it so any unauthorized person residing in the United States prior to 1982 was suddenly authorized.
Muzaffar Chishti: 1986 is the only time in our history where we have legalized illegal aliens. Then there was never any provision, any, any [00:06:30] chapter when we did that. Europeans have done it a number of times. Spain does it every six months, but we had never done it and we haven't done it since. That was unique. And since that legalized aliens, therefore, you had to be an illegal alien to be legalized because I actually one of my favorite cases, I. I essentially cut my teeth in that act from the coming of that act in the initial stages to [00:07:00] it becoming law. And then I was actually head of the coalition that, uh, that implemented the law. Uh, we ran the International Ladies Garment Workers Union and one of the largest legalization programs. We legalized 3000 members. But to be legalized under that law, you had to be illegal.
Hannah McCarthy: So the first time there was a law that created a designation that there are people here legally and there are people here illegally [00:07:30] was 1986.
Nick Capodice: Yeah.
Hannah McCarthy: But that same law said that you couldn't be here legally until it was proven that you were here illegally first.
Nick Capodice: Yeah. Joseph Heller would have loved it.
Speaker10: There's some catch. I catch 22. It's the best there is.
Muzaffar Chishti: Because that was the only way you could get a green card. That if you are here as a student or lawful status or [00:08:00] H1-b worker, or you were not eligible to be legalized. So we found creative ways to to find that someone was here in violation of the law. That's why the word illegal alien by necessity, had to find its way in the statute in 1986.
Nick Capodice: As a quick aside, as we are talking about this word illegal. Do you remember Frank Luntz?
Hannah McCarthy: Oh, yeah, I do. From your episode on framing, he was [00:08:30] the guy who wrote memos to the Republican Party to tell them to use certain phrases and avoid others like, say, climate change instead of global warming or, say, death tax, not estate tax.
Nick Capodice: That's the guy. In 2005, he wrote a memo to Republican candidates saying always use the term illegal immigrants and do not use the term illegals. But Luntz was largely ignored.
Speaker3: And those.
Speaker11: People that hire illegals ought to be penalized.
Nick Capodice: In [00:09:00] 2018, a congressman in Texas, Steve McCraw, defended using the term illegal immigrant because he said it was a legal term. It is in state and federal laws.
Hannah McCarthy: Is it in state and federal laws?
Nick Capodice: Well, no, no, there is no use of the term illegal alien or illegal immigrant in Texas state law. And there's nowhere in federal law that says an unauthorized immigrant living in the United States is here illegally. And maybe part of the reason for that is, as you noted, Hannah, in your Ice episode, [00:09:30] being undocumented in the United States is not a crime.
Muzaffar Chishti: It doesn't mean the word illegal alien was not used in popular parlance. It was used by journalists quite a bit, especially in the beginning of the 20th century when the country was getting very concerned about immigration for the first time.
Hannah McCarthy: Early 1900s. So this is like peak Ellis Island era?
Nick Capodice: Absolutely it is. When Salvatore Cappa came [00:10:00] here from termini, Sicily, when the grand and great grand and great great grandparents of a staggering amount of people listening to this very podcast came to the United States. And this leads me to one of my favorite things to talk about in the world. Who came to the United States when and why, which we're going to get to right after a quick break. You're listening to Civics 101. We are talking about legal and illegal immigration today. And just a reminder, we have [00:10:30] several hundred episodes on just about any topic you can imagine on our website, civics101podcast.org.
Hannah McCarthy: All right. Nick, and you were about to tell me about the myriad groups coming to the United States. When and why? So let me have it.
Nick Capodice: Absolutely, Hannah. And I think it makes sense to look at it through how we determined who was not allowed to come into the United States, who would have been turned away, which was for the first hundred years, nobody [00:11:00] whatsoever.
Hannah McCarthy: Nobody.
Nick Capodice: Literally nobody. Again, here is Muzaffar Chhetri.
Muzaffar Chishti: Anyone who showed up on our shores, it was admitted in literally you became citizen after certain requirements under the 1790 act. But you were a legal person the moment you entered on the shore in 1880 for the first time, we said we will exclude [00:11:30] some group of people and the exclusions we put in place were not numerical. I like to say they were not quantitative limits. They were actually qualitative limits.
Hannah McCarthy: Qualitative as in there are certain qualities, be they medical or professional or racial qualities that we keep out of this country.
Nick Capodice: Yeah, and not numerical. Like we only allow 10,000 Germans or French or whatever each year it was if you had this [00:12:00] quality, you were not allowed in.
Hannah McCarthy: And who was coming at that time?
Nick Capodice: We had folks coming from everywhere. Hannah. But a few groups in particular. First off, Irish immigration, the famine in Ireland in the 1840s that led to a massive influx coming from there. Around the same time, Chinese people were actively recruited in huge numbers to fill the labor force, specifically in mining and to help construct the transcontinental railroad. [00:12:30] And then from 1870 to 1900, over 12 million immigrants came to the United States, mostly from Germany, Ireland and England.
Hannah McCarthy: When did Ellis Island open as our immigration processing center.
Nick Capodice: That was 1892.
Hannah McCarthy: All right. Where did people go before that?
Nick Capodice: The biggest processing center was called Castle Garden. It's on the southern tip of Battery Park in New York City. And again, until 1880, nobody was turned away. [00:13:00]
Hannah McCarthy: All right, so who was on that first list of limited people?
Muzaffar Chishti: The talk in the 80s that certain kind of people we don't like. So the candidates for that were convicts. Candidates for that were people with communicable diseases, tuberculosis especially of that time, people who were paupers, people who were prostitutes. And we in 1882, we added all of Chinese in [00:13:30] the Chinese Exclusion Act.
Hannah McCarthy: All right. Now that was huge. We have a whole episode on Chinese exclusion, which I wholeheartedly encourage everyone listen to.
Nick Capodice: Absolutely. Agreed. So this was America's first racial restriction and it would not be the last. But then we get to the big wave, the Ellis Island years.
Speaker12: These gladly faced the long ocean voyage. Then immigration gateways like Ellis Island and [00:14:00] examination by immigration officials.
Hannah McCarthy: If we're going to talk about Ellis Island, do you want to start with your thing?
Nick Capodice: My thing? My soapbox.
Hannah McCarthy: Yeah. Let's hear it.
Nick Capodice: Something I have been known from time to time at parties and social occasions is to get on my own little soapbox, to tell anyone who will listen that nobody's name got changed at Ellis Island.
Hannah McCarthy: And to be fair, Nick, you used to think that people's names were changed. [00:14:30]
Nick Capodice: I did Hannah. I was also a victim of Godfather Part two.
Speaker12: Come on son.
Speaker13: What is your name?
Speaker14: Vito Andolini Corleone.
Speaker13: Vito corleone.
Hannah McCarthy: Nobody's name was changed at Ellis Island because nobody at Ellis Island wrote down names.
Nick Capodice: That's right. And this is a lesson in the inability to break someone's framing. I've told this little tidbit to probably a thousand people before now, and I share articles on it, and I encourage people [00:15:00] to look it up themselves if they don't believe me. But they usually go, hmm, I don't know, kid. And then they tell the Sean Ferguson joke.
Hannah McCarthy: What's the Sean Ferguson joke?
Nick Capodice: I'm not going to get into it. Hannah. Do your own research.
Hannah McCarthy: But there were inspections at Ellis Island, right? Checking for tuberculosis, trachoma, etc..
Nick Capodice: Yeah, and there was a potential that you could be sent back if you would be considered a, quote, societal burden.
Hannah McCarthy: And how many people were actually sent [00:15:30] back to their country of origin?
Nick Capodice: Very few. About 20% of immigrants who came through were detained for one reason or another, but they were usually let in eventually. Of the 12 million immigrants who came through Ellis Island, less than 2% were sent back.
Muzaffar Chishti: So the debate between the end of the 19th century and 1917 was that too many people are coming and too many [00:16:00] wrong kind of people were coming. And the definition of wrong was clearly some Europeans. We don't like some Europeans, one group of Europeans, because for both they were intellectually and physically inferior to another group that we like, mostly northern and Western Europeans. The Nordic supremacy was the governing wisdom at that time. We don't like Italians. We don't like Slavs. We don't like Russians, [00:16:30] and we certainly don't like Jews. And we definitely don't like Chinese. And then other Asians, that was clearly stated. So the the that era. This is where theories of eugenics were sold as science by distinguished academics, convincing members of Congress that these people were not at par.
Hannah McCarthy: Wait, this was in the 19 teens. People were promoting eugenics back then.
Nick Capodice: They were. And [00:17:00] contrary to what I had thought, the United States was at the very forefront of it. The seminal work on eugenics and eugenics, by the way, as the very much not real, not scientific theory that some people from some places have superior genes and others don't. But again, the seminal work is called The Passing of the Great Race by Madison Grant, a New Yorker. Adolf Hitler wrote Madison Grant a letter [00:17:30] saying, quote, this book is my Bible, end quote. End quote. We Germans must emulate what the Americans are doing.
Hannah McCarthy: Wow.
Nick Capodice: And I bring all this up because this this is what inspired our first immigration quota system.
Muzaffar Chishti: That became our first, first attempt to control immigration in quantitative limits. And guess how we decide to put the quantitative limits was by racial [00:18:00] quotas. We started putting what we call the national origin quota system in 1917, became law in 1924, is that we're going to give quantitative limits for each country based on the number of people of the stock of that country in the US in 1910.
Nick Capodice: So Congress takes the 1910 census. They look at it and they decide there already too many Italians [00:18:30] in the United States in 1910. So they push it back. They look at the 1900 census. Well, maybe this is the America I remember and still too many Italians. So they pushed the goalpost to 1890. They use the 1890 census as a guide.
Muzaffar Chishti: So it was clearly racist, openly racist by members of Congress speaking language on the floor of the House and Senate, which you would find unprintable today. So when we started putting limits on immigration, [00:19:00] they were clearly driven on racist terms.
Nick Capodice: And this this is what Muzzaffar tries to explain to people who say the well trotted out line, well, my family came here this way, the legal way.
Muzaffar Chishti: So the first thing they don't understand, and this is because they say, why didn't they come the way my grandparents came the right way, as we just finished saying, until 1924, there was no way of coming illegally. So everyone who came had to come legally. [00:19:30] So therefore, the notion that you would even have to wait in a line, There was no lie until 1924. So we started once we started the quantitative limits. Therefore, there was there was a line. So if you did not fit that line, then if you came outside that line, you were illegal. And that was the law till 1965.
Hannah McCarthy: 1965?
Nick Capodice: Yes. There was no [00:20:00] significant immigration from places like Italy, Eastern Europe, Hungary, Turkey, China, India, etc. from 1924 to 1965. In 1965, at the feet of the Statue of Liberty, President Lyndon Johnson signed the Hart-celler act, reversing the 1924 National Origins Act.
Speaker15: And this measure that we will sign today will really make us truer to ourselves, both as a country [00:20:30] and as a people. It will strengthen us in a hundred unseen ways.
Muzaffar Chishti: We entered the national origin courses and we opened the America to the entire world. So therefore history. It was a promise that had been made by President Kennedy in his campaign for presidency.
Nick Capodice: John F Kennedy gave a speech to an Italian club in Boston, and he asked everybody, hey, you know what's on your mind? [00:21:00] And they said, these quotas are destroying our families. I can't bring my sister, I can't bring my nephew, etc. And John F Kennedy promised if elected, he would change the quota system.
Hannah McCarthy: But he didn't.
Nick Capodice: No, He did[n’t lift a finger to end the national origin quota system.
Muzaffar Chishti: He made three states of Union addresses, did not address immigration even in one. It fell to President Johnson [00:21:30] to end the national origin quotas.
Nick Capodice: An LBJ was not really known to be a pro-immigration kind of guy.
Muzaffar Chishti: He was a confirmed Southern Democrat, anti-immigrant person. History shows that he had never met any immigrant, except for a piano tuner of his wife, who was a Czech man. He had no relationship with with immigration. And so he when he became president, [00:22:00] he calls all of us Kennedy's advisors into the white House. He said, look, I'm an accidental president. Just tell me, what had President Kennedy promised in his campaign? They listed immigration. He said, that becomes my cause. I have to do it.
Nick Capodice: And even though even though this lifting of the national origin system is celebrated by those who, you know, respect the words of Emma Lazarus in The New Colossus, give me your tired, your poor, your huddled masses yearning to breathe free. [00:22:30] I still gotta say, the 1965 act was not without its own problems.
Muzaffar Chishti: The authors of the 1965 act made sure that European immigration supremacy remained intact. They wrote the law in a way that would guarantee white European immigrants to come, because they expanded the category of brothers and sisters of US citizens to [00:23:00] get privilege. The relatives of US citizens get high privilege. Guess who were the US citizens at that time? They were all white Europeans. They said if they were their brothers, they will keep on getting. This did not work out that way. The Europeans lost interest in coming to the United States. I mean, why would you? After the Marshall Plan, especially, why would we come to the US when you could live in an Italian villa? And the third world countries got out of the colonial [00:23:30] yoke, and they started sending students and then professionals. And 50 years later, the face of America had changed. Nick: Muzaffar points out that this change has stoked a lot of heated feelings in our communities, and in our politics.And those feelings about non-European immigrants were foundational - 65 years later, to the success of one president’s election in particular.
Speaker9: They are being released by the tens of thousands into our communities, with no regard for the impact on [00:24:00] public safety or resources.
Muzaffar Chishti: He saw how a country had radically changed in its mix in 50 years in the history of our country, 50 years is not a long period. In 1965, immigration was 90% [00:24:30] European. Today it's 90% non-European. How that could not affect something in the country. Uh, you know, you have to be unmindful of how people think about change.
Hannah McCarthy: We have talked before about how different people with different classifications from different countries have different wait times when it comes to becoming a US citizen through the legal channels, because [00:25:00] we still use a quota system. So someone immigrating from Norway or New Zealand with family in the US will have a very different wait time than someone coming from Mexico or India in terms of the current quota system.
Nick Capodice: Yeah, I just read a report from the Cato Institute in 2018 where they found that someone trying to immigrate to the US from India with an advanced degree has an estimated wait time of 151 years. And [00:25:30] to be clear here, Muzaffar is in no way saying that the recent rise in anti-immigrant sentiment is at all justified. But he is pointing out that we have not amended our immigration policies in a long.
Muzaffar Chishti: Long time and we haven't changed our immigration level since 1990. So no wonder we're having the effect of all this paralysis in in Congress to deal with immigration. And the numbers [00:26:00] have grown in from 3 million to 14 million is not a small thing to happen. And now, because these we haven't changed our laws since 1990, and we haven't done a legalization program since 86, we now have a large number of people who may die unauthorized. We have at least probably two generations of unauthorized people. Now that's telling. So [00:26:30] a large number of people have deep roots now who are unauthorized. Therefore, when you see people being snatched from the streets, these are not people who arrived yesterday. These are people who arrived many years ago with deep roots. And almost none of them have criminal backgrounds. So therefore, if you have made this bargain that I'm going to deport a million people a year, where are you going to find them? That's the difference between the narrative and reality, is that to find them, you have to go on the inside of our country. And people see it. See this more as an attack on Americans and more [00:27:30] as an attack on American, deeply held values like First Amendment and the Second Amendment. Then they see as an attack on illegal immigration. And that's why I think Trump is losing the people on this.
Nick Capodice: This episode is made by me. Nick Capodice with you, Hannah McCarthy. Thank you. Our staff includes producer Marina Henke and executive [00:28:00] producer Rebecca LaVoy. Special thanks. Here. Special thanks. Go out to everybody at 97 Orchard Street, specifically Pedro and Annie. Sunday crew forever. Music. In this episode from blue Dot sessions. Epidemic sound and the wondrous Chris Zabriskie. Civics 101 is a production of NPR. New Hampshire Public Radio.