The Island of Duty: The Practice of Immigration Law on Ellis Island


When Nina Ashoff landed in New York City on November 21, 1898, she was not expecting to find herself represented in a federal courtroom two weeks later. Before leaving Europe, she must have been assured by her wealthy father, who was Superintendent of the largest hospital in Strasburg, Germany, that her transatlantic voyage would end safely in the familial comforts provided by her uncle, Ignatz Bobb. Unfortunately, the transatlantic crossing proved far less difficult than the short trip between New York’s inspection station and Ignatz’s home on Lexington Avenue.

The story of Nina Ashoff’s journey reveals a great deal about the workings of United States immigration law at the turn of the century. Indeed, her story helps to reveal the explicit rules and implicit ways of think-ing that immigrants faced in their inspection ordeal. Like thousands ofother European immigrants who arrived in the United States, Nina Ashoffwas immediately greeted by inspectors who questioned her about hermeans, her health, and her marital status. If she had spoken with other immigrants while aboard her ship, they might have shared rumors with her about how appearing defenseless would be helpful at inspection. Relying on such rumors, she could have prepared herself, dissembling when necessary. But Nina Ashoff was wealthy, youthfully naive and likely isolated from most other immigrants. Given the paucity of evidence, we can only speculate that she seemed guarded, perhaps indignant, answering the questions put to her. For whatever reasons, her inspectors detained her, until the Board of Special Inquiry could convene to determine whether she should be excluded as someone “likely to become a public charge.” At her board hearing, she lost her case.

Her uncle, however, refused to defer to an administrative process that rewarded deference, and he hired an attorney, Henry Gottlieb, who tried to secure a writ of habeas corpus – a judicial order requiring authorities to bring a prisoner into the jurisdiction of a court of law – by arguing infederal district court that the Ashoff family was too wealthy for any of its members to become a public charge as a matter of law. The federal government moved to have the writ dismissed, and in the legal atmosphere ofthe time, Nina Ashoff and her lawyer faced an uphill battle. In recently decided cases, the United States Supreme Court had confirmed the autonomy of the administrative state in matters dealing with immigrants, and particularly Chinese immigrants. “To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation,” the Supreme Court had announced in Chan Ping v. United States, which upheld the constitutionality of the Chinese Exclusion Act of 1882, a law manifesting – in the words of Theodore Roosevelt – “the clear instinct of race selfishness.” Two years later in Nishimura Ekht v. United States, the Court allowed Congress to delegate this “highest duty” to subordinate officials whose orders satisfied due process of law in most immigration matters.

Following such clear precedent, Judge Emile Henry Lacombe shamelessly told Henry Gottlieb in court: “If the Commissioners wish to order an alien drawn, quartered, and chucked overboard they could do so without interference.” After granting the Immigration Commissioner his victory, Judge Lacombe mocked Gottlieb’s claim that the rich are inherently incapable of becoming a public charge. “If Baron Rothschild came over here in steerage as an immigrant,” he explained, perhaps in reference to Ashoff’s Jewish identity, “and the Commissioners decided that it was likely that he would become a public charge they could deport him.” The Judge then told Gottlieb and his client to appeal the Commissioner’s decision to theTreasury Secretary, whose agency was responsible for immigration.

Judge Lacombe could utter such statements because immigration law seemed centrally important to American sovereignty at the end of the nine- teenth century. As federal law increasingly forced ships carrying immigrants to arrive at sites isolated from the nation’s cities, Ellis Island in New York and Angel Island in San Francisco constituted key structural elements in the nation’s boundaries. There, federal inspectors exercised new kinds of legal powers, as immigrants like Nina Ashoff discovered that federal judges restricted their own review powers, while administrators applied federal laws to concrete cases.

One might say that judges like Lacombe imagined inspection stations as places free of lawyers like Henry Gottlieb, since judges severely restrained lawyers from bringing administrators’ decisions into courts of law. For an immigrant to pass through Ellis Island, then, she could not rely on an adversarial legal process. Instead, as one journalist suggested in 1902, “To the alien who comes to America the surest defense is defenselessness; his greatest protection is his weakness.” Europeans migrating to the United States discovered that inspectors expected them to participate in the American administrative process by willfully submitting to their fulldiscretion.

Only one year after Ellis Island opened, Columbia University political scientist Frank Goodnow had noted the main characteristic of this kind of administrative law regime in which lawyers were marginal: “while constitutional law treats the relations of the government with the individual from the standpoint of the rights of the individual, . . . administrative law emphasizes duties.”‘ Thus, in contrast to late twentieth-century discussions of immigration law focusing on immigrants’ legal rights, late nineteenth-century discussions privileged what may seem to us as an unfamiliar language–that of immigrants’ defenselessness and duties.

This note explores the practice of immigration law on Ellis Island when that language was current.” Following this introduction, I begin with a short account of the consolidation of federal regulatory power after theCivil War. Then, by consulting published personal accounts of Ellis Island, I examine how immigrants presented themselves for inspection. Next, I investigate how immigrants consulted legal counsel to appeal inspectors’ exclusion orders. To recover the administrative appeals process on Ellis Island, I have analyzed records preserved at the National Archives in Washington, D.C. I divided those records into two kinds: one group of letters, memoranda, cases of deportation, and cases of immigrants securing a bond to land, and another group of cases of Board of Special Inquiry appeals. I have only examined the latter group, which represents 424 cases of Board of Special Inquiry appeals on Ellis Island from the summer of 1893 to the summer of 1897.

By analyzing personal accounts and Board of Special Inquiry records, I show how the practice of immigration law disposed immigrants and their lawyers to mimic officials’ expectations. I want to emphasize at the outset that institutional power was not absolute. In accordance to the claim that official lawmaking must be analyzed in terms of social practice, I recognize that immigrants constantly challenged inspectors’ identifications. Indeed, as I show, immigrants were rather sophisticated at discerning and manipulating inspectors’ determinations, including those about race and health. In the present day, when immigrants’ rights are being increasingly curtailed,  immigration lawyers may find it worthwhile to consider how, in another time and place, people negotiated legal institutions without recourse to rights discourses.

Nonetheless, an exclusive focus on immigrants’ agency obscures a clear historical understanding of the limits immigrants faced at Ellis Island. These limits can be discerned only as a matter of practice, in the specific social relationships made at the interstices between explicit law, implicit assumptions, and immigrants’ strategies. An analysis of such practices reveals that few intervening agents, such as lawyers, could effectively assistimmigrants by contesting the inspection process. The need for administrative control in an environment where it was relentlessly contested pushed inspectors to narrow the legal strategies available to immigrants. In other words, one might say that Ellis Island’s rules had less significance than its everyday, practical operation.

In an epilogue following my analysis, I offer some observations about the broader cultural significance of the practice of immigration law on Ellis Island. Specifically, I discuss the efforts of Theodore Roosevelt to reform New York’s inspection station. My concluding treatment of Roosevelt is less concerned with recovering the history of the practice of law on Ellis Island during his presidency that it is with recovering the history of how institutions like Ellis Island can be situated in their broader cultural context. Throughout the 1890s, Roosevelt had written about the distinct racial character of Anglo-Americans, and he extolled their strengths by explaining how institutions instilled in them a sense of duty. When Roosevelt assumed the presidency in 1901, he aimed to reform Ellis Island and appointed officials who emphasized that the process of racial assimilation could be begun there. The practice of immigration inspection on EllisIsland was well-suited to the Rooseveltian project of producing an ideal American citizenry, in part because legal practice identified the figure of the immigrant’s attorney as a disruptive presence in the machinery of assimilation. Thus, this note critically examines the history of American citizenship by situating the practice of immigration law in an emerging ideological opposition between adversarial lawyering and administrative authority at the turn of the twentieth century.

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