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Acknowledgement
I would like to thank Christine Goodman and participants at the Spring 2022 faculty workshop at Pepperdine Caruso School of Law for helpful comments on an earlier draft of this essay, law student Linh Tran (’22) for research assistance, and the Pepperdine University Faculty Research Retreat program for research support. Any errors are mine alone.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 United States v. Wong Kim Ark, 169 U.S. 649, 649 (1898).
2 Chinese Exclusion Act of 1882, 22 Stat. 54, ch. 126.
3 Naturalization Act, ch. 3, 1 Stat. 103 (1790).
4 Dred Scott v. Sandford, 60 U.S. 393 (1856).
5 U.S. Const’n, 14th Am. Two years later, Congress amended the naturalization laws to permit only persons of African descent the right of naturalization. Naturalization Laws, ch. 254, 16 Stat. 254 (1870).
6 See Salyer, Wong Kim Ark.
7 See Berger, “Birthright Citizenship on Trial,” 1196.
8 See Salyer, supra note 6, at 65-69.
9 In re Look Tin Sing, 21 F. 905 (D. Cal. 1884).
10 Chae Chan Ping v. United States, 130 U.S. 581 (1889).
11 See Markowitz, “Deportation is Different,” 1308.
12 Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893).
13 See Markowitz, supra note 11 (discussing shifts in principle that deportation is not punishment); Koh, “Executive Defiance and the Deportation State,” 956. (discussing plenary power doctrine).
14 Wong Kim Ark, 169 U.S. at 653.
15 Yick Wo v. Hopkins, 118 U.S. 356 (1886).
16 169 U.S. at 689-701.
17 For an alternative vision of the opinion, see Jonathan Weinberg, “United States v. Wong Kim Ark, Rewritten,” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3945956.
18 For a discussion of the strategic decision to emphasize national sovereignty, and the consistency with the plenary power doctrine, see Salyer, supra note 6, at 73-75.
19 169 U.S. at 694.
20 Id. at 680–83 (discussing Elk v. Wilkins, 112 U.S. 94 (1884)). See also Berger, supra note 7 (analyzing birthright citizenship for Native Americans and Chinese immigrants through Wilkins and Wong Kim Ark).
21 The opinion acknowledges that the purpose of the Fourteenth Amendment was to “establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney” in Dred Scott. 169 U.S. at 676.
22 Frost, “By Accident of Birth” (observing that “For Harlan, the Constitution’s principle of racial equality stopped just short of the Chinese”).
23 See Berger, supra note 7, at 1249–53 (describing race-based exclusionary laws enacted by Congress after Wong Kim Ark).
24 Black Alliance for Just Immigration & NYU Immigrant Rights Clinic, The State of Black Immigrants, Part II: Black Immigrants in the Mass Criminalization System (2020), http://baji.org/wp-content/uploads/2020/03/sobi-fullreportjan22.pdf.
25 See, e.g., Dep’t of Homeland Sec’y v. Regents of the Univ. of California, 140 S. Ct. 1891, 1916 (2020) (invaliding rescission of Deferred Action for Childhood Arrivals (DACA) on administrative law principles but rejecting the equal protection claim despite impact on Latino/a communities).
26 See, e.g., United States v. Carrillo-Lopez, 2021 WL 3667330 (D. Nev. Aug. 18, 2021) (finding racial animus in history, implementation and re-enactment of federal provision criminalizing unlawful re-entry to at 8 U.S.C. § 1326).
27 The Essay uses the phrase, “Asian American” in light of the focus on Wong Kim Ark and the Chinese-American community, but I acknowledge longstanding debates around the appropriateness of the term as well as the multiplicity of Asian American experiences, communities and histories more broadly.
28 On January 24, 2022, the Supreme Court granted the petition for certiorari in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, to address whether Harvard College’s admissions policy penalizes Asian Americans in violation of the U.S. Constitution.
29 See, e.g., Brief of Amicus Curiae Asian American Legal Defense and Education Fund and Other Asian American Education and Youth-Serving Organizations and Higher Education Faculty in Support of Defendant-Appellee and Affirmance, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 19–2005 (1st Cir. May 21, 2020) (supporting Harvard’s race-conscious admissions policy and arguing, inter alia, that plaintiffs’ arguments “continue a longstanding tradition of using the Asian community as a wedge”).
30 See Salyer, supra note 6; Lee, “Birthright Citizenship, Immigration and the U.S. Constitution”; Frost, supra note 22; Amanda Frost, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers (2021).
31 See Lee, supra note 30, at 96.
32 In re Look Tin Sing, 21 F. 905 (D. Ca. 1884)
33 See Lee, supra note 30, at 96; Frost, supra note 30, at 57.
34 See Lee, supra note 30, at 96.
35 See Frost, supra note 27, at 63. Interestingly, an amount of $8,000 is not far off from the median immigration bond of $7,500 reportedly set by immigration judges for detained immigrants in fiscal year 2018. See Transactional Records Access Clearinghouse, Three-fold Difference in Immigration Bond Amounts by Court Location, July 2, 2018, at https://trac.syr.edu/immigration/reports/519/#:~:text=A%20median%20bond%20amount%20of,set%20at%20%2425%2C000%20or%20more.
36 See Frost, supra note 30, at 65-66.
37 Id. at 65.
38 Id. at 65-56; Lee, supra note 30, at 103.
39 United States v. Ju Toy, 198 U.S. 253 (1905).
40 Frost, supra note 30, at 67.
41 Id. at 68.
42 Id. at 73.
43 See Salyer, supra note 6, at 69.
44 Id. at 67.
45 See Yin, “The Narratives of Chinese-American Litigation During the Chinese Exclusion Era”.
46 See Frost, supra note 30, at 73.
47 Yamataya v. Fisher, 189 U.S. 86, 101 (1903).
48 Id. at 102.
49 U.S. Const’n, Art. V.
50 See Motomura, “The Curious Evolution of Immigration Law”.
51 8 U.S.C. § 1362.
52 8 U.S.C. § 1229a(b)(4)(B).
53 Examples of the unavailability of legal protection in immigration law include statutory provisions that mandate detention and eliminate defenses to deportation. For a brief overview of immigration adjudication generally, see Koh, “Removal in the Shadows of Immigration Court,” 187.
54 See Ifill, “On the Courthouse Lawn”.
55 James Baldwin, Equal in Paris: An Autobiographical Story (1955).
56 See, e.g., Genesis 23:4; Deuteronomy 10:19; Leviticus 19:34; Jeremiah 7:5-7; Zechariah 7:9-10. See also Koh, “Agape, Grace and Immigration Law,” (discussing arguments, based in Romans 13 and different Hebrew terms to describe immigrants, that Biblical directives to love immigrants need not extend to undocumented immigrants).
57 Matthew 25:40
58 Philippians 3:20.
59 Hebrews 13:1-3.
60 Isaiah 61:3.
61 I am grateful to my Pepperdine colleagues Jeff Baker and Chalak Richards for many conversations along these lines.
62 Isaiah 58:6-12.
Additional information
Notes on contributors
Jennifer Lee Koh
Jennifer Lee Koh is an Associate Professor of Law at Pepperdine Caruso School of Law, where she is the Co-Director of the Nootbaar Institute on Law, Religion & Ethics.