Enforcement of the Chinese Exclusion LawsAsian Americans and the Law

Dr. Steiner

Act of July 5, 1884, 23 Stat. 115 The certificate herein provided for shall

entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborers shall seek to re-enter, and said certificates shall be the only evidence permissible to establish his right of re-entry. . .

Chew Heong v. United States,112 U.S. 536 (1884) The entire argument in support of the judgment

below proceeds upon the erroneous assumption that congress intended to exclude all Chinese laborers of every class who were not in the United States at the time of the passage of the act of 1882, including those who, like the plaintiff in error, were here when the last treaty was concluded, but were absent at the date of the passage of that act. . . . [T]he courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature.

Lorenzo Sawyer to Matthew P. Deady,Dec. 22, 1884 [I]t is some consolation, after all the lying,

abuse, threatening of impeachment etc. as to our construction of the Chinese restriction act, and the grand glorification of brother Field for coming out here and so easily, promptly and thoroughly sitting down on us and setting us right on that subject to find that we are not so widely out of our senses after all.

Ellis Island Main port of entry for European immigrants

whose immigration was restricted but not excluded

Immigrants at Ellis Island spent a few hours or at most a few days

Ellis Island was a processing station Erika Lee, At America’s Gates

Angel Island Chief port of entry for Chinese immigrants from

1910-1940 whose entry was excluded but for some exceptions

The Chinese on Angel Island spent weeks, months, even years detained

Angel Island’s purpose was to keep immigrants out Erika Lee, At America’s Gate

Angel Island and Ellis Island Between 1891 and 1910, European

immigrants filed only 273 habeas corpus petitions

Between 1891 and 1905, Chinese in San Francisco filed 2,657 petitions

Sixty thousand Chinese applied for admission into U.S. while almost six million non-Chinese entered

Angel Island Poetry

Three PoemsAmerican laws are fierce like tigers:People are jailed inside wooden walls.Detained, interrogated, and tortured,Birds plunged into an open trap—O, sufferings!Tragedy, to whom can I complain— I yell to the sky: There is no way out!If only I had known the difficulty of passing the Golden

Gate!Fed up with this treatment, I regret my journey here

Three PoemsIn search of petty gains,Idle in my obscure village home,I took the perilous journey and risk to America.I met immigration officers interrogating me.Just for a lapse of memory— I am sent and imprisoned in a wild mountainWhere a brave man finds no use for his mightAnd cannot go one step beyond the confine.

Three PoemsSo liberty is your national principle;

Why is it that you practice autocracy?

You uphold not justice, O, you Americans;

You confine me in prison and watch me closely.

Officials: wolves and tigers—

You are ruthless, you want to swallow me.

I am innocent, yet treated guilty; how can I take this?

When can I get out of this prison and find happiness?

Another Angel Island Poem Imprisoned in the wooden building day after day,

My freedom is withheld; how can I bear to talk about it?I look to see who is happy but they only sit quietly.I am anxious and depressed and cannot fall asleep.The days are long and bottle constantly empty;My sad mood even so is not dispelled.Nights are long and the pillow cold; who can pity my loneliness?After experiencing such loneliness and sorrow,Why not just return home and learn to plow the fields?

Detention Men and women—

even husband and wife—were separated until they were admitted

Class Bias and Exclusion Enforcement Passengers who traveled in first or second class

usually were released on their first day of arrival while third-class passengers were brought to the detention center

Immigration Officials

Immigration Officials in California Immigration officials had been leaders of the

anti-Chinese movement in California John H. Wise, collector of customs in San

Francisco from 1892 to 1898, described himself as a “zealous opponent of Chinese immigration”

While the statute permitted non-laborers to enter with the proper certificate, Wise required more proof than the statute required

John Wise and Wong Fong Wise denied Wong Fong entry and wrote the

following to his lawyer H.A. Ling:Now poor old Wong Fong, he feels quite ill,As I am told by LingAnd won’t eat any nice birds’ nestNor even will he singSo just to make this poor Wong FongFeel very good and niceI’ve sent him back to ChinaWhere he can eat his mice.

Merchant’s wives Chinese women who were

merchants’ wives had to prove: Husbands were merchants They were indeed married

Interrogating Wives What presents or ornaments has your husband given you? When did your husband give you the hair ornament? Did he buy the hair ornament in his home village? Did you really wear the head-dress and beaded veil at your

wedding? Just when did you wear the head-dress? How long did you wear the head-dress? Did you wear it while you served tea? Who were the guests that you poured tea for?

Salyer, Captives of Law How does the Chinese experience in the

federal courts run counter to the traditional assumptions about the history of immigration and the courts?

The traditional account has been that federal courts deferred to administrative agencies; but Chinese immigrants repeatedly won when challenging decisions that denied entry

Salyer,Captives of Law

By 1890, Chinese had filed over 7,000 petitions challenging entry decisions

They had won between 85-90 per cent

Salyer, Captives of Law Who were the “captives of law”? How were

they captured? Federal judges, who shared the anti-Chinese

feelings of most white Americans, nonetheless were constrained by institutional norms (writ of habeas corpus, rules of evidence)

Salyer, Captives of Law What role did family and district associations

play in the litigation involving Chinese immigrants?

Chinese arriving in San Francisco found a network of family and service associations who would help with immigration problems and help hire a lawyer. The Chinese Six Companies had a lawyer on retainer.

Salyer, Captives of Law What was the importance of the writ of

habeas corpus? “For the judges of the court, the writ of

habeas corpus had an honored place in Anglo-American jurisprudence; it evoked the basic principle of the liberty of the individual from the arbitrary act of government.”

In re Jung Ah Lung, 25 F. 141 (N.D. Cal. 1885) But the section affords no color to the extraordinary

pretension that the result of that examination shall be final and conclusive upon the rights of passengers. Such an abrogation of the writ of habeas corpus, which has always been considered among English-speaking peoples the most sacred monument of personal freedom, must be unmistakably declared by congress before any court could venture to withhold its benefits from any human being, no matter what his race or color.

In re Chin Ah Sooey,21 F. 393 (D.C.D. Cal. 1884)(Hoffman)

That any human being claiming to be unlawfully restrained of his liberty has a right to demand a judicial investigation into the lawfulness of his imprisonment, is not questioned by any one who knows by what constitutional and legal methods the right of liberty is secured and enforced by at least all English-speaking peoples.

Salyer, Captives of Law What was the “special procedure” used in the Chinese

immigrant cases in the federal courts of the Northern District of California?

A Chinese litigant who filed a writ was brought before a U.S. Attorney for an examination without a lawyer. A statement would be taken that could be used in court. Later the preliminary examination would be dropped but a commissioner instead of a judge would have a hearing and make recommendations to the court.

Salyer, Captives of Law Why was the “special procedure” used in the

Chinese immigrant cases? Because Judge Hoffman and the United States

Attorney believed that it would get to the truth of the matter. The usual court proceedings wouldn’t work because of the lack of documentation and the purported unreliability of Chinese litigants

Salyer, Captives of Law If Chinese immigrants in habeas corpus cases

provided positive, uncontradicted testimony would they automatically win?

Nor necessarily. Ordinarily, such testimony would mean that the Chinese petitioner would win. But the Supreme Court ruled in Quock Ting (1891) that a court could decide against a petitioner even where his testimony was uncontradicted.

Salyer, Captives of Law What does Salyer believe explains the

difference in results between the hearings before the collectors of customs and those before the commissioner or judges?

The commissioner overturned the collector’s decision around 80 % of the time. The commissioners adhered to favorable evidentiary standards and allowed petitioners to be represented by lawyers.

Blocking Judicial ReviewAct of August 18, 1894, 28 Stat. 390 In every case where an alien is excluded from

admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury.

Administrative Rule 21 The burden of proof in all cases rests upon Chinese

persons claiming the right of admission to or residence within the United States to establish such right affirmatively and satisfactorily to the appropriate government officers, and in no case in which the law prescribes the nature of the evidence to establish such right shall other evidence be accepted in lieu thereof, and in every doubtful case the benefit of the doubt shall be given by administrative officers to the United States government

Salyer, Captives of Law What was the significance of the decisions of

United States Supreme Court in United States v. Sing Tuck and United States v. Ju Toy?

These cases limited the ability of Chinese to challenge decisions made by immigration officials in federal court.

Salyer, Captives of Law After 1894 most types of immigrant cases

couldn’t be reviewed by the courts. What was the notable exception?

Birthright citizenship.

United States v. Sing Tuck,194 U.S. 161 (1904) Whatever may be the ultimate rights of a person

seeking to enter the country, and alleging that he is a citizen, it is within the power of Congress to provide, at least, for a preliminary investigation by an inspector, and for a detention of the person until he has established his citizenship in some reasonable way. If the person satisfies the inspector, he is allowed to enter the country without further trial. Now, when these Chinese, having that opportunity, saw fit to refuse it, we think an additional reason was given for not allowing a habeas corpus at that stage.

United States v. Sing Tuck,194 U.S. 161 (1904) We are of opinion that the attempt to disregard and

override the provisions of the statutes and the rules of the Department, and to swamp the courts by a resort to them in the first instance, must fail. We may add that, even if it is beyond the power of Congress to make the decision of the Department final upon the question of citizenship, we agree with the circuit court of appeals that a petition for habeas corpus ought not to be entertained unless the court is satisfied that the petitioner can make out at least a prima facie case. A mere allegation of citizenship is not enough.

Justice Brewer’s Dissentin United States v. Sing Tuck (1904) Coming into a port of the United States, . . . placed

as they were in a house of detention, shut off from communication with friends and counsel, examined before an inspector with no one to advise or counsel, only such witnesses present as the inspector may designate, and upon an adverse decision compelled to give notice of appeal within two days, within three days the transcript forwarded to the Commissioner General, and nothing to be considered by him except the testimony obtained in this Star Chamber proceeding. This is called due process of law to protect the rights of an American citizen, and sufficient to prevent inquiry in the courts.

Star Chamber The “Star Chamber” was an English court in

the 1400s that became notorious for its arbitrary methods and severe punishments. The court was so named because the court chamber had a pattern of stars on a dark blue background painted on its ceiling. The court became so reviled that Star Chamber became a byword for unfair judicial proceedings.

Justice Brewer’s Dissent in United States v. Sing Tuck (1904) Must an American citizen, seeking to return to this

his native land, be compelled to bring with him two witnesses to prove the place of his birth or else be denied his right to return, and all opportunity of establishing his citizenship in the courts of his country? No such rule is enforced against an American citizen of Anglo-Saxon descent, and if this be, as claimed, a government of laws and not of men, I do not think it should be enforced against American citizens of Chinese descent.

United States v. Ju Toy,198 U.S. 253 (1905) [T]he decision [about citizenship] may be

intrusted to an executive officer, and . . . his decision is due process of law . . . . [T]he requirement of a judicial trial does not prevail in every case.

Justice Brewer’s DissentUnited States v. Ju Toy

I do not see how any one can read those rules and hold that they constitute due process of law for the arrest and deportation of a citizen of the United States. . . . It will be borne in mind that the petitioner has been judicially determined to be a free-born American citizen, and the contention of the government, sustained by the judgment of this court, is that a citizen, guilty of no crime--for it is no crime for a citizen to come back to his native land--must, by the action of a ministerial officer, be punished by deportation and banishment, without trial by jury and without judicial examination.

Such a decision is, to my mind, appalling.

The Chinese as “Illegal Alien” It’s estimated that at least 17,000 Chinese

immigrants entered United States illegally through Mexico or Canada during the Exclusion era.

In the early 20th Century, what was the “illegal alien” problem along the Texas-Mexico border?

Mexico From 1907 to 1909,

2,492 Chinese were arrested by U.S. officials for illegal entry from Mexico

It’s estimated that 1,000 to 2,000 Chinese migrated illegally from Mexico into U.S. from 1876 to 1911

Border Crossings Chinese illegal immigration depended upon

networks in Mexico and United States, including organized groups of smugglers

New Chinese arrivals in Mexico would be given American money, Chinese-English dictionaries, U.S. railroad maps, etc.

In El Paso, working-class Chinese and Chinese merchants “banded together” to help those who crossed illegally

Passing Smugglers would disguise Chinese as Mexicans or

Native Americans Chinese would be dressed in “Indian garb” or “the

most picturesque Mexican dress” They would receive forged Mexican citizenship

papers and learn some basic Spanish (“Yo soy Mexicano”)

Chinese aboard steamships disembarking in Gulf Coast ports would pass as blacks

Canada Canada restricted

Chinese immigration by imposing $50 “head-tax”

But tax didn’t have to be paid for ninety days

American officials complained that Canadian laws “practically nullified” U.S. efforts

“Smugglers’ Paradise” The Vancouver-Puget

Sound area heavily used for smuggling in the opium trade, and Chinese and their guides used same boats and routes

Border crossing cost around $23-60 in 1890s and up to $300 in the 1900s

Canada, Mexico, and the United States What were the differences between Canada

and Mexico in attitudes toward Chinese immigrants?

How did the United States act differently in its attempts to control its northern and southern borders? Border diplomacy and cooperation with Canada Policing and deterrence along the border with

Mexico