Deportation. Torrie Hester
and agents of the Bureau of Investigation (predecessor of today’s FBI). As immigrants navigated deportation policy, they often forced immigration agents to reconcile immigration law with other kinds of law—including marriage, criminal, and naturalization—as well as the reach of the U.S. Constitution.18
To explain this pivotal era in history, the first half of the book examines the national and international logic that shaped early U.S. deportation policy, while the second half studies specific provisions of U.S. deportation policy that enhanced the power of deportation and extended deportability on U.S. soil.
In 1893, the U.S. Supreme Court decided Fong Yue Ting, a case that has remained the legal precedent for every deportation from the United States since. For the Chinese immigrants who ended up before the Court in Fong Yue Ting, one of their central questions to the Court asked if the federal government could deport immigrants at all. The Supreme Court ruled that it could. The power to deport belonged to the federal government, under what has become known as its plenary power, as a trait of sovereignty. As immigration officials began to enforce deportation provisions, they filled out the logic of just what the Supreme Court ruled in Fong Yue Ting, that deportation was a power protective of national security. Their efforts made deportation proceedings operate differently than criminal proceedings, which had important implications for the reach of the U.S. Constitution over immigrants, especially over the meaning of the Fourth, Fifth, and Sixth Amendments.
When immigrants challenged their deportations, some of their efforts drove important legal distinctions between three categories of residents in the United States: immigrants without legal residence, immigrants with legal residence, and U.S. citizens. The legal distinctions between these three categories of residents on U.S. soil reshaped civil rights and civil liberties, as well as social and economic rights, and conceptions of race and racial power. Sometimes, though, it was not clear where one legal status ended and another began. By the 1920s, the lines between the immigrants with lawful status, those “outside the law,” and U.S. citizens, which were previously somewhat fluid, had hardened significantly, with profound national and international consequences that are unfolding still.19
Chapter 1
Creating U.S. Deportation Policy
In the late nineteenth century, the U.S. Congress created two sets of deportation policies. Congress began building the first in 1882 when it passed the Chinese Exclusion Act. This deportation law applied specifically, and exclusively, to Chinese laborers. Congress started the second in 1888, which applied to the millions arriving from everywhere but China, nearly 90 percent of whom in the late nineteenth century and early twentieth century came from Europe.
A key national logic shaping these early deportation policies was clearly articulated in the 1893 Supreme Court decision of Fong Yue Ting v. United States. The case originated the year before, when Congress passed a new law, now known as the Geary Act, designed to broaden the government’s power to deport Chinese immigrants.1 Three men—Fong Yue Ting, Wong Quan, and Lee Joe—challenged the law’s deportation provision.2 When the Supreme Court heard Fong Yue Ting, one particular question the litigants posed to the Court stood out: did the U.S. government possess the power to deport at all? In 1893, while immigration authorities and Congress certainly thought it did, it was not entirely clear to all Americans that federal authorities should have that power. The question had not ever been posed to the Supreme Court. In Fong Yue Ting, the Court upheld the government’s power to deport people from U.S. soil as part of a nation-state’s power of self-protection and found that it did not represent a punishment for a crime.
Yet, at the turn of the twentieth century, just what it meant that deportations served to protect the nation rather than as a form of punishment was sometimes unclear and hotly contested. In 1917, immigration policy makers folded the two deportation policies—the one aimed at Chinese immigrants and the other at everyone else—into one. By then, officials, lawmakers, judges, and immigrants had worked out the logic of deportation as protection: it mattered in terms of burden of proof and due process rights of people in deportation proceedings, and it made deportation proceedings very different from criminal trials.
The Government’s Power to Deport in Fong Yue Ting
In the wake of the Chinese Exclusion Act of 1882 and the law known as the Geary Act of 1892, the Chinese immigrant community protested. One of the cases at the heart of their challenge was Fong Yue Ting, in which they challenged the way Chinese exclusion created a racial class in law—one in seeming violation of both the Fourteenth Amendment and an international treaty. The Chinese immigrant community also posed several challenges to the government’s power to deport and the procedures designed to carry it out. They questioned if the federal government could lawfully deport a person at all. If the Supreme Court found that it could, they argued, then deportation should be classified as a punishment. Classification as a punishment would mean people in deportation proceedings would have constitutional protections under the Fourth, Fifth, and Sixth Amendments open to people in criminal proceedings. The outcome of Fong Yue Ting set an important national logic to U.S. deportation policy ever since.
Fong Yue Ting, Wong Quan, and Lee Joe, the men who became the litigants in Fong Yue Ting, had immigrated to the United States when the U.S. government had been relatively open to immigration from China. The immigration stream dates to the 1840s, with the California gold rush. The U.S. government signed the Burlingame Treaty with the Chinese government in 1868 to facilitate further migration. Between 1870 and 1880, just under 140,000 Chinese immigrants entered the United States. This represented roughly 4 percent of all immigrants to the United States during these years.3
Almost as soon as Chinese immigration began, however, many white Americans, especially workers from California, Oregon, and Washington, the western states where most of the Chinese immigrant population lived, began to call for governmental restriction of Chinese immigration. The anti-Chinese movement painted Chinese immigration as dangerous, as something that threatened not only livable wages and white racial superiority but the very essence of American democracy.4 H. N. Clement, a California lawyer, captured sentiment for policy that excluded Chinese immigrants when he wrote that the United States had “a right to do everything that can secure it from threatening danger and to keep at a distance whatever is capable of causing its ruin.… We have a great right to say to the half-civilized subject from Asia, ‘You shall not come at all.’”5 Democrats and Republicans at the national level adopted anti-Chinese stances, especially in the 1880 presidential election, when both parties considered the Pacific Coast vote essential for victory. As historian Andrew Gyory notes, in the campaign’s final days, “party leaders catapulted Chinese immigration to the top of the national agenda, effectively reducing the contest to which party could ‘out-Chinese’ the other.”6
Two years later, in 1882, Congress passed the first of the laws of Chinese exclusion, which created a separate racial class in federal law. It would be the first federal law that U.S. authorities used to formally deport anyone.7 Under the 1882 law, Chinese laborers could not lawfully immigrate and federal authorities could deport those who immigrated unlawfully.8 Congress repeated the immigration restriction and deportation provision in subsequent legislation that decade: the Chinese Exclusion Acts of 1884 and 1888.9 These laws were both racial and classed, in that they targeted people of Chinese heritage who were also workers.10
In 1892, in another revision to Chinese exclusion, Congress passed the Geary Act and with it widened the deportability of Chinese laborers. Under one of the law’s terms, all laborers of Chinese descent in the country were required to apply for and then carry a certificate of residence that proved their legal right to be in the country. This registration requirement was new and made even those lawfully in the country before the law deportable. To register for the certificate, the applicant listed his or her name, age, local residence, and occupation and submitted a photograph. The only exception was if the laborer could prove that he or she had been unable to obtain a certificate by reason of accident, sickness, or other extenuating