American Passage (26 page)

The judge called the deportation order against Canfora “an act of cruel injustice,” yet he ruled that he was “compelled to dismiss this writ,” since immigration laws “confer exclusive power upon the immigration officials to determine such questions” as to the admissibility of immigrants. As long as officials were following the law and their own procedures, the judge had “no jurisdiction to interfere” with the decision to deport Canfora. Having said that, the judge expressed his personal hope that officials would reconsider Canfora’s deportation. Officials did just that and Vincenzo Canfora was allowed to rejoin his family.

These cases show that while a noncitizen living in the United States would be covered by constitutional protections, noncitizens stopped at the gates of Ellis Island were not. This was upheld in a 1905 Supreme Court decision dealing with the due process rights of a Chinese-American named Ju Toy. Writing for the majority, Justice Oliver Wendell Holmes declared that at stations like Ellis Island, an immigrant, “although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate.”

In essence, the Court created a legal fiction that Ellis Island was not part of the United States. Immigrants arriving at Ellis Island may have thought they were on American soil, but by law they had not technically crossed the border until they were officially declared “free to land” by officials. Ellis Island had become the nation’s premier border; few immigrants standing in the Great Hall would have realized that, in the eyes of the courts, they were still on the wrong side of that border.

This peculiar legal situation brought up another issue. Is a child born to an immigrant woman detained at the hospital at Ellis Island and not yet legally admitted to the country, an American citizen? According to the Fourteenth Amendment, it would appear that the child would be. In granting citizenship to freed slaves, that amendment defined citizens as “persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Hence the idea of birthright citizenship, that birth on American soil automatically conferred U.S. citizenship.

However, the Department of Commerce and Labor issued a legal memorandum stating that such a child would not receive automatic citizenship solely by being born at Ellis Island or any other inspection facility, if the mother had not yet been legally admitted to the country. Focusing on the words “subject to the jurisdiction,” officials argued that although the mother had offered her allegiance to the United States by attempting to enter the country, “her offer has been refused and she does not acquire even a momentary residence.”

Such rulings, combined with Supreme Court precedents, would create a legal twilight zone around Ellis Island where immigrants had the potential for being trapped in limbo, having forsaken their native country and been rejected by their desired adoptive country. The creation of this legal fiction would pose challenges to American law, national security, and concepts of human rights for decades to come.

D
ESPITE THE SETBACKS
, W
ILLIAMS
would not completely give up on his monetary test. In March 1910, he was still announcing that “immigrants will not be allowed to land without funds adequate for their support until such time as they are likely to find employment.” He did not mention any specific dollar amount, but referred people to his earlier memo laying out the $25 rule. Williams was nothing if not stubborn. However, he needed to find other tools with which to weed out undesirable immigrants. Now officials began to focus more closely on immigrants who possessed “poor physiques” or were suffering from “low vitality.”

These supposedly weak and listless new immigrants would never make it in industrial America. Their lack of strength would mean unemployment and poverty. Some Americans believed that the poor physiques and low vitality of immigrants indicated a genetic disposition, not caused by environment or circumstances. Those genes would be passed down to their children and grandchildren, lowering the overall vitality and strength of the American people for generations to come.

In 1902, commissioner-general of immigration Frank Sargent warned William Williams that an immigrant should be excluded unless it “was positive from appearance and the physical condition of the aliens that they could immediately obtain employment, with good wages, whereby they could support themselves and not become public charges.” Hinting at a monetary test, Sargent wrote that, “sturdy Scotchmen, Irishmen, or Germans who land at Ellis Island with but a few dollars can enter immediately and find employment.” Those of other nationalities with little money, however, “should not be permitted to enter unless they produce satisfactory proof of their ability to work and support themselves.”

Medical officials initially classified immigrants with “poor physique” as those suffering from what was called “chicken breast” or displaying symptoms of pulmonary tuberculosis, but not necessarily the disease itself. Immigration officials, however, wanted to stretch out the term to encompass a wider range of alleged physical defects.

Sargent defined a “poor physique” as those who were “undersized, poorly developed, with feeble heart action, arteries below standard size . . . physically degenerate.” An immigrant with a poor physique was not just more likely to become a public charge; he would also “transmit his undesirable qualities to his offspring.”

William Williams agreed that a broader interpretation of the term “poor physique” might achieve greater restriction within the law. “I am glad that you approve of my remarks as to the low vitality of many immigrants,” Williams wrote Prescott Hall. “I would like to see some steps taken to keep out immigrants who do not come up to some proper physical standard.”

He had been quite taken with an article written by Allan McLaughlin, a doctor at Ellis Island who noted that “thousands of immigrants of poor physique are recorded as such by the medical inspectors at Ellis Island.” The problem, as McLaughlin understood it, was that nothing in the law mandated that immigrants of poor physiques be excluded, therefore “this mere note of physical defect carries little significance under the present law, and the vast majority of them are admitted by the immigration authorities, because it does not appear that the physical defect noted will make the immigrant a public charge.”

Doctors with the Public Health and Marine Hospital Service were conflicted about the term “poor physique.” Dr. George Stoner, who was stationed at Ellis Island, listed a number of physical maladies that might constitute a poor physique, including respiratory problems, “deficient muscular development,” poor circulation, and an inadequate proportion between height and weight. However, he was concerned that the term itself “does not imply a clinical or pathological entity.” Surgeon General Walter Wyman agreed. “Poor physique is not a diagnosis,” he said.

The Immigration Act of 1907 would provide restrictionists with a way to shoehorn “poor physique” into immigration inspection. Many immigration defenders thought the bill a great success for what was not included: a literacy test. However, the new law expanded classifications for excluding aliens, including one that allowed doctors to certify immigrants with a mental or physical defect that might affect their ability to earn a living. In effect, the new law would allow immigrants to be excluded from entering the country if their physical appearance was poor, to the extent that officials felt they would not be able to survive in America.

This did not mean loathsome diseases or dangerous and contagious diseases (such as trachoma), which were already excludable under the law. Medical officers certified immigrants with these diseases, as well as those suffering from insanity, epilepsy, and low intelligence, as Class A, which meant they were automatically excluded by law. Immigrants with poor physiques and other physical deficiencies were certified as Class B, which meant that their exclusion was at the discretion of immigration officials.

In the first full year that the new law was in effect, 870 immigrants were barred from the country under this new clause. By 1912, that number would grow to over 4,200. However, this did not satisfy Prescott Hall. He wrote to Robert Watchorn, commissioner of Ellis Island at the time, that only 34 percent of immigrants initially classified as having a poor physique were deported, while the rest were allowed to enter on bond or on appeal. Watchorn responded that most of those admitted were older parents coming to stay with their adult children already in the United States, and therefore “not prospective progenitors, for the most part.” There is, of course, something comical about the gaunt and sickly Prescott Hall complaining about the poor physiques of incoming immigrants.

When Williams took over in 1909, he focused more closely on the new law. He made a long list of ailments that might qualify an immigrant for exclusion. It included ankylosis (stiffness) of the joints; arteriosclerosis; chronic inflammation of lymph glands; hernia; goiter; lupus; and varicose veins. Even otherwise productive and healthy immigrants who were deaf or mute might be excluded under the new rules. All immigrants “not clearly and beyond a doubt entitled to land” would be pulled aside for a hearing, but only those with ailments “in aggravated form,” to the extent they would affect their ability to earn a living, would find themselves excluded.

In his first annual report since returning to Ellis Island, Williams noted that many of the previous year’s detentions were due to “serious physical defects discovered by our surgeons,” placing these immigrants under what Williams termed the “excellent provision of the law of 1907.” Williams did not believe that these ailments were randomly assigned across the racial and ethnic spectrum. “Relatively few immigrants from Northern Europe are so held,” he wrote. “It is those coming from the other parts of Europe (particularly the southern and south-eastern parts) that constitute the great majority of the doubtful cases.”

The amount of work being done was astounding. In 1911, there were 70,829 board of special inquiry hearings. That came to almost two hundred hearings a day, seven days a week, twelve months a year. Ellis Island possessed a staff, not including medical officials who did not sit on the boards, of 523 workers, although that included many, such as watchmen and maintenance staff, who did not perform inspection duties.

Williams worried about the ability of his staff to carry out that work. “Some of these men will never understand the meaning of the phrase ‘likely to become a public charge’ or how to apply it,” he wrote to Daniel Keefe, the new commissioner-general of immigration. “The fact is we are executing here some of the most difficult laws in the world with much green material.” Ellis Island was running as many as eight board hearings at any one time, necessitating more than thirty officials to sit on those boards. “We have not 32 men here who are qualified to do good Board work,” Williams lamented.

To the thousands of immigrants who passed in front of those boards, like Wolf Konig, Williams’s strict enforcement of the law had real consequences. The seventeen-year-old arrived at Ellis Island alone and penniless in June 1912; doctors certified him as “afflicted with lack of physical and sexual development for age claimed which affects ability to earn a living.” Wolf was headed to his uncle, Nathan Waxman, in Chicago, who owned a stationary store and property worth $3,800. Nathan signed an affidavit that he would support Wolf so that he would not become a public charge.

Irving Lipsitch of HIAS took up the case. He argued that Wolf was sixteen years old and therefore not underdeveloped for his age. “We believe that he can improve himself and his development with the assistance of his relatives who are prepared to help him to get better nourishment and exercise,” Lipsitch told officials. “Being a young boy, and not accustomed to travel, it is quite natural that this first long journey should cause him to become fatigued and to look poorly developed when examined.” Nathan Waxman enlisted the help of two Chicagoarea congressmen to write to Secretary Nagel about their interest in Wolf ’s fate. Ultimately, though, Williams stood his ground. “This boy is frail and obviously weakling [
sic
],” he concluded. Unfortunately for Wolf, Nagel was away from his office when his appeal reached Washington. In his place, Solicitor General Charles Earl agreed with Williams and ordered the boy back to Galicia.

Michele Sica was also a victim of the new regime at Ellis Island. He was a “bird of passage,” an immigrant who would come to America for a number of years to work and then return to his wife and children back home in Italy with the money he had saved. This would have been Sica’s fourth time in the country, having first arrived in 1901. He had lived in America for seven out of the last ten years.

On his fourth visit, in June 1911, Sica ran into problems. Though he arrived with $21, had a brother-in-law and friends in New York, and had resided in the country for a number of years over the previous decade, Sica was declared likely to become a charge. He was now fortyfive years old and diagnosed with a hernia. “Although there are some favorable features in the case, he is certified to be physically defective,” wrote Assistant Commissioner Byron Uhl, “his general appearance is not good, he is considerably older than when previously in this country and there is great doubt as to his ability to earn a livelihood, afflicted as he is, as a laborer.”

Sica was ordered deported, but his expulsion was postponed until September. That meant Sica would spend the entire summer cooped up at Ellis Island, where temperatures would often rise to over 100 degrees in the poorly ventilated dorm rooms. In the meantime, Sica hired Fiorello La Guardia to argue his case. One year out from his work as an interpreter at Ellis Island, La Guardia now had his own small practice dealing with cases like Sica’s. If Williams believed that too many undesirable immigrants were getting into the country, La Guardia thought that too many desirable immigrants were being kept out.

La Guardia appealed Sica’s case to Washington. During Sica’s last stay in New York, he had worked for a Manhattan lumber company for more than three years and would be rehired if admitted. La Guardia could not claim that Sica already had a job lined up with the firm, since that would mean he was in violation of the contract-labor law. “Considering all these facts it is clear that the medical certificate cannot even incidentally be the cause of this alien’s becoming a public charge,” La Guardia concluded. “He is now in good physical condition and well able to secure and keep profitable employment.” However, La Guardia’s efforts were for naught. After three months in detention, Sica was shipped back to Italy.