Deportation. Torrie Hester
officials to scale back the aggressive enforcement of Chinese exclusion laws, Wu added, “My fear is that, if such proceedings are allowed to be passed over, this Mr. Chamberlain [the immigration official who led the raid] or other Treasury officials will repeat them in other communities to the further injury and alarm of my countrymen.”32
Members of the Chinese legation also used the international appeal to contest the ways U.S. officials violated the rights and liberties of Chinese immigrants. For instance, after an 1893 raid in San Francisco, Chinese official Yang Yu wrote to the U.S. secretary of state protesting that the Chinese residents were “treated as though they are guilty of the highest offenses known to the law, and held in custody while their property and effects are wasted or destroyed.”33 In a different appeal, Chinese consular agents stepped in to protect two men named Ping Yik and Poy Kwan. In 1899, U.S. immigration authorities had arrested and ordered them deported. Both were Section 6 immigrants (those exempt from Chinese exclusion), having arrived in the United States two years earlier. They had been issued visas and admitted to the United States as merchants. The two appealed their deportations using the national-level appeal, and they also contacted Chinese consular officers to launch an international appeal. Ping Yik and Poy Kwan’s national appeal was successful and the court released them.34 Chinese diplomat Wu Ting-Fang followed up their release with a letter to the U.S. secretary of state, with the intent of shielding Ping Yik and Poy Kwan in the future from aggressive immigration enforcement that treated them as laborers. He wrote,
It seems to me but just that these two men, after a fair trial which conclusively proves that they are entitled by law and treaty to remain in this country, should not be further molested in any way, and put to great inconvenience and expense in defense of their indisputable rights. I am informed that their arrest was part of a concerted scheme on the part of certain lawless persons to harass the Chinese in and about Buffalo. In view of these circumstances, I respectfully request that you will kindly communicate with the Honorable the Attorney General on the subject to the end that instructions shall be sent to the United States District Attorney at Buffalo, New York, to discontinue further proceedings against the said Ping Yik and Poy Kwan, and permit them to carry on their business in peace.35
There was an important strategy in an international appeal that U.S. officials used when trying to protect an American from deportation that Chinese diplomats could not: U.S. officials threatened to reciprocate. In defending Hugo Klamer from expulsion from Austria-Hungary, for example, the Americans likened him to Austrians in the United States who were, the U.S. legation’s officials stated, allowed to sojourn, in some cases even to the detriment of U.S. interests. If the Austrian government continued to expel sojourning Americans, U.S. officials threatened, they would reciprocate in a manner that could severely hurt Austrian economic interests. One letter from the U.S. consulate to the Austrians stated,
In the United States and especially in the port of New York reside hundreds of Austrian subjects who have, for a long series of years, been engaged in the importation of Austrian merchandise and have never harbored the intention to acquire American citizenship. These Austrians have in course of time increased the export of Austrian manufactures to the United States to the sum of 25,000,000 florins per annum. They are very successful competitors of the American importer as well as manufacturer, and monopolize almost completely the trade in Vienna specialties. Most of these gentlemen return to their old home to enjoy their fortune after they have amassed it in the United States. These foreigners are of no particular benefit to the United States; on the contrary, they impair the business interests of the American importer and manufacturer.
In view of these facts the question arises in what manner the action of the American authorities would be judged here in Austria, in case they should suddenly expel these foreign importers from the country and thus injure the export trade of Austria and especially that of the city of Vienna. And yet such action would only be in the nature of a retaliatory measure if the proposed expulsion of Hugo Klamer is carried out.36
U.S. efforts to protect Klamer also included threats to demand similar military service of Austro-Hungarians in the United States. While U.S. officials agreed that nation-states had a right to enlist residents in the military, the United States, as a liberal-minded state, had not even required military service of foreigners during times of national crisis. Consular officer Edmund Jussen noted, “My Government has always made the most liberal concessions to foreigners.” Even in the Civil War, “when a general conscription was ordered, the United States did not disturb the foreigners, although many of them, Austrians included, were transacting lucrative business … while the American stood in the field under arms and protected the persons remaining at home.” Jussen then ominously added, “How long these liberal and extremely humane views will prevail if expulsion of American citizens like the one in question is decreed here can not be predicted.”37
The agreements, concessions, and conflicts over different jurisdictions and discrepancies in laws and policies found in the military service cases of Germany and Austria-Hungary all illuminate the soft process of the international appeal. On the face of it, the international appeal established a kind of parity among nations within the interstate system, because all nations or empires with sovereignty could access it. Yet, as a quick contrast between Chinese officials’ efforts in the United States and U.S. officials’ actions in Europe makes clear, not all appeals were equal. A key determinant of strength was a far more extensive and imperialist variant of extraterritoriality, wherein immigrants fell under the laws of the country of their emigration rather than under the law of the land in which they traveled. This variant of extraterritoriality also represented another part of the international legal regime and it prevented some nations from carrying out deportations in the first place.
Extraterritoriality and Limits to the Power to Deport
China did not deport U.S. citizens through much of the nineteenth century and well into the twentieth, because the international legal regime that structured immigrant removals did more than mandate that emigrantsending nations retain some jurisdiction over their emigrants abroad through the international appeal. It also required that national removal policies, when applied to Europeans and citizens of colonial-settler nations like the United States, be built on Western law. Countries and empires in Asia and the Middle East, like China, found themselves especially impacted by this requirement. This form of extraterritoriality was not explicitly created to protect people from deportations, but it did, and it was enforced or realized through a particular, imperial extraterritorial agreement.
Throughout the late eighteenth and nineteenth centuries, extraterritorial agreements put jurisdiction over an immigrant in the hands of the country of emigration rather than the country of immigration. Between 1787 and 1886, the United States signed extraterritorial treaties with China, Morocco, Algiers, Tunis, Tripoli, Muscat, Borneo, Persia, Japan, Madagascar, Samoa, Tonga, and the Ottoman Empire.38 Britain, Russia, France, and Germany also practiced extraterritoriality. Extraterritorial jurisdiction represented essentially an inversion of immigration law, where, writes legal scholar Leti Volpp, a sovereign “is governing its insiders, outside its territory. With … [immigration law], the sovereign is governing its outsiders, inside its territory.”39 In countries under extraterritorial agreements, therefore, U.S. officials did not use the international appeals process to protect U.S. citizens from removal, because nations under this particular strain of extraterritoriality did not have the power to deport U.S. citizens.
The U.S. government’s operations in China between 1844 and 1943 exemplify how extraterritoriality worked to prevent deportations of U.S. citizens.40 In China, U.S. law traveled with a U.S. emigrant. For the first fifty years of U.S. extraterritoriality in China, jurisdiction of Americans there fell to U.S. consular officials. In 1906, the U.S. government established a U.S. District Court for China to preside over U.S. emigrants. This left Americans in China subject to a unique blend of U.S. jurisdiction, which legal scholar Teemu Ruskola says “consisted of a mélange of colonial common law as it existed prior to American independence, general congressional acts, the municipal code of the District of Columbia, and the code of the Territory of Alaska.” As a California court explaining the extraterritoriality in China wrote, “American citizens residing for the purpose of trade in the ports of China are not regarded as subjects of that government,