The Evolution of Immigration Law: Human and Universal

Immigration goes beyond the act of moving. 

According to the dictionary, immigration is the act of coming to live permanently in a foreign country. Why has the simple act of a person deciding to move his or her life to another country grown into one of the most important legal branches in the world? 

I have studied civil law since I was 16 years old. I learned that custom in Roman law, also known as Ius non scriptum (unwritten law), is considered the oldest source of law. The customary law of the time, that is, the traditions, forms and customs of the daily life of people and families of that time, gave life to the norms and rules that were a large part of the solid foundations of Ius Civile (citizen law) and Ius Gentium (law of nations), from which jurisprudence developed interpretatio, which remains the basis of continental law and contemporary civil codes, and is studied in law schools in most countries that use continental law. Its historical importance and influence on the science of law also extends to common law countries. 

In the United States, under the common law legislation, immigration law developed in such a manner, where important events gave rise to the laws that now govern us in the United States. These laws generally expanded the definition of citizenship from being highly restrictive and racially discriminatory toward greater openness. From the Nationality Act of 1790, which was the first law that defined eligibility for citizenship by naturalization and established standards and procedures by which immigrants became American citizens (limited to “free white persons”), to today with the various executive orders issued by President Trump that are radically changing the context of immigration around the world. With the Treaty of Guadalupe Hidalgo (1848), which settled the Mexican American War, the United States annexed large portions of Mexico and conferred citizenship on Mexicans who chose to remain in the territory. In 1863, the United States recognized the rights of people living in the United States by freeing slaves held in Confederate states, and the 14th Amendment in 1868 guaranteeing birthright citizenship for all people born in the United States. The Supreme Court affirmed in United States v. Wong Kim Ark (1898) that anyone born in the United States is a citizen by birth regardless of the race or status of their parents. 169 U.S. 649 (1898). 

The story is not so simple, however. The Expatriation Act of 1907 stripped citizenship from American-born women when they married non-citizen immigrants. This act was reversed by Congress with the Cable Act of 1922 which restored citizenship to American-born women who had married non-citizen husbands. During the Civil War, Congress's Act to Prohibit the "Coolie Trade" (1862) sought to prevent southern plantation owners from replacing their enslaved African American laborers with unfree indentured laborers or "coolies" from China. In addition, the Burlingame Treaty of 1868 ensured U.S. access to Chinese laborers by guaranteeing free immigration rights to both Chinese and Americans. Between 1917 and 1924, the Supreme Court upheld the 1790 Nationality Act's provision that Asians are ineligible for naturalization because they are not racially "white." See Ozawa v. U.S., 260 U.S. 178 (1922).  

Congress completed the racial exclusion of Asians and imposed immigration restrictions on Filipinos upon granting the Philippines independence. In 1929, with the Undesirable Aliens Act of 1929 (Blease's Act), the law made it a misdemeanor to "illegally enter the country" and a felony to return after deportation. During World War II (1942), the United States government negotiated with the Mexican government to recruit Mexican workers, all men with their families, to work on short-term contracts on farms and in other war industries. This program continued in agriculture until 1964. After Fidel Castro's revolution, the Cuban Adjustment Act of 1966 gave anti-communist Cubans preferential immigration status. Refugee laws for Vietnamese and other Southeast Asians were passed in 1975, and a more receptive refugee policy was made law in 1987. 

In the Immigration Act of 1990 Congress implemented the H-1B visa program from skilled temporary workers with some provisions for conversion to permanent status. The 1993 Supreme Court case Reno v. Flores, 507 U.S. 292 (1993), set federal standards for the treatment and release of children in detention. In 2012, Deferred Action for Childhood Arrivals (DACA) provided protection from deportation and work authorization to individuals who arrived as minors and had lived in the United States since June 15, 2007. In 2014, President Obama sought to defer deportation and some other protections for unauthorized immigrants whose children were U.S. citizens or lawful permanent residents. In 2017, the Supreme Court upheld most provisions of a third version of President Trump's 2017 "Muslim Ban" executive order. In 2019, the Department of Homeland Security established a rule that expanded the list of benefits received and other factors to consider in determining whether an applicant is eligible for admission or adjustment of status. Beginning with President Trump's second term in January 2025, there have been several changes in the immigration field. From mass expulsion of illegal immigrants to strengthening the US-Mexico border with military presence, the US refugee resettlement program has been halted and many people seeking refuge in the US will have to do so outside of US territory. There is an estimated 3.6 million case backlog in US immigration courts and immigrants often have to wait years to be heard. We will see further adjustments to the immigration law and system due to the continuing demand for immigration. 

What I have learned through my experience as a lawyer in Mexico and an immigrant law student in the United States is that human law and universal law are always together. Immigration under universal law is resilience, adaptability, strength. Every immigrant has his or her own personal story, and I can say that it is always difficult. There is a lot of trauma when one migrates. Immigration has existed since ancient times (approximately 70,000 years ago). Humans migrate to evolve humanity. After each immigrant makes the decision to leave everything behind, he or she will need to continue his or her process under human law with an immigration procedure.  

Human law is clear and supports immigrants. The law is protective. It is up to each immigrant how his or her process will be, and that will be another process that the person needs to go through. We as humans, have processes throughout our lives. A process to learn to eat, to walk, to talk, to grow, to be a professional, to be a leader, to heal an illness, to take care of a parent or a child with special needs, to migrate, etc. All these processes lead us to a better version of ourselves.  

When a person is close to an immigrant, that person also grows. Together they learn empathy, understanding and how to be part of this world by becoming a part of the world for someone else. Both learn from both laws, to apply them and to live by them. Both grow when they share the warmest side of people's hearts, one that has crossed many borders and the other that welcomes them. Both learn to fight against fear, against the unknown. Both learn about courage and adaptation that encourages them to move forward in their own life processes. The country that welcomes an immigrant welcomes one more part of the world, one more tradition and one more value. The learning is impressive. There is great growth on both sides.  

Let's evolve together, the sun rises for everyone.