Читать книгу Unsung America - Prerna Lal - Страница 7
ОглавлениеThe Promise and Peril of Citizenship
It’s a grave oversight to talk about immigration without first focusing on the history of African Americans and Asian Americans. Even before the existence of the United States, the Atlantic Slave Trade separated millions of Africans from their families, forcibly removed them from their homes, and set them on a dangerous journey to the Americas to meet the demand for enslaved labor in the new colonies. Millions died, and millions were forever separated from their homes and loved ones. Even though Africans who were enslaved did not come to this country as immigrants, the history of immigration policy in the United States is inextricably bound up in their experiences and the fight for freedom that they and their descendants undertook.
In the United States, the institution of chattel slavery reduced African persons to property that could be bought and sold by their enslavers. After abolishing chattel slavery, the United States welcomed cheap labor from China to build the transcontinental railroads, and to work in mining and agriculture. Similar labor demands today are filled by immigrants working low-wage jobs, and who also do not have access to citizenship.
Immigration in the United States is a system of exclusion and deportation, and the entire premise comes from policies designed to control and regulate slavery, forcibly remove Native Americans, and later on, exploit the labor of Chinese immigrants. At first, deportation was used to punish behavior deemed wrong or unnatural. As early as 1691, laws provided for the banishment of any white person who married a black person, Native American person, or mixed race person.1 In the 1700s, enslaved persons were also punished by branding, flogging, and by banishing them from the colony.
Emancipated black people resisted slavery by organizing efforts to free enslaved persons, and because of this, they were also targeted for deportation. As the population of free black people increased, their status became “a foreign element whose social status might not be secure in this country.”2 The earliest known emancipation plans were actually deportation plans, and were published anonymously. A plan for the emancipation of enslaved persons in 1714 also called for the deportation of all black persons who did not want to continue to be enslaved.3
Abolitionists and pro-slavery deportation supporters came together to encourage deportations of emancipated and freeborn black persons from the United States. Abolitionists supported the cause because they believed black persons would not integrate and could not live freely in the United States, and pro-slavery deportationists because they wanted to quell slave rebellions and uprisings that were often inspired by the mere existence of free black persons. In this era, even those who opposed deportations wanted to design laws that would make it so difficult for black persons to live freely in the United States that they would leave for other lands on their own.4 Today, in immigration circles, this policy is called “attrition through enforcement.”
Even though the Constitution grants Congress the power to make immigration laws, many colonies, and later states, sought to exercise this power to control their own populations. State legislatures created their own laws to remove free black persons or to ban them from entering the state.5 Some state laws allowed local law enforcement, such as sheriffs, to remove free black persons if they refused to leave the state willingly. Over time, the deportation of free black persons to other states removed radical black leaders and anti-slavery supporters from the United States. In this way, many states quelled political dissent to slavery, and prevented liberation efforts, such as the Underground Railroad, from becoming full-scale social movements.
As a country, the United States continued to explore deporting former slaves as a solution to the political challenges created by its racist regime. The same president who emancipated slaves also toyed with plans to remove them to maintain the racial pecking order. Even after signing the Emancipation Proclamation, Abraham Lincoln asked the Dutch, British, Haitians, Colombians, and Ecuadorians to take in the emancipated black persons, and he even got Congress to grant him $500,000 to start a colony of free black persons on the desolate island of Île-à-Vache in the Caribbean.6 But many of these people were removed only to face their deaths: more than 100 of the 450 sent to Île-à-Vache died, and President Lincoln had to send a ship to rescue the survivors.
Free black abolitionists, such as Richard Allen, James Forten, and Robert Purvis, resisted deportation and efforts to send them elsewhere. As the federal government expanded westward through land grabs and gained more power over immigration, Asian immigrants replaced black persons as the unassimilable “others.” They faced a new era of exclusionary laws from the states and federal governments. And well into the twentieth century, states continued to forcibly isolate or remove immigrants and black persons via restrictive housing ordinances and public welfare laws.
The stories of free black persons in this chapter are not intended to recast them as immigrants, but to help us understand that policies designed to exclude immigrants have their basis in the institution of slavery, and in the resistance to the institution. I also include them to acknowledge and celebrate the efforts of African Americans in obtaining citizenship and civil rights, which helped later immigrants live more freely. And finally, these stories show that perhaps our struggles are more interconnected than we thought initially. If so, perhaps non-black immigrants today should fight not just for themselves, but alongside and together with black immigrants who continue to experience higher rates of detention and deportation, and black U.S. citizens who continue to be deprived of the full benefits of citizenship and equality under the law.
Dred Scott
The Naturalization Act of 1790 limited citizenship to free white persons of good character.7 This meant that Native Americans, indentured servants, enslaved persons, free black persons, and anyone else who was not classified as white could not gain citizenship. Thus, the notion of citizenship became central to the struggle for full equality in America. Many African Americans thought that if they could gain citizenship, they would gain freedom, and with it, full civil, economic, and political rights. This may sound eerily familiar, but few literary works focus on the integral role that black Americans played in winning the right to citizenship, and how that struggle helped immigrants.
Born with slave status in Virginia in 1799, in 1846 Dred Scott sued for his freedom and that of his wife and their two daughters, entering into a legal battle that would last eleven years and change the course of history. The basis of the lawsuit was that even though he had been born born with slave status, Dred Scott had lived with his enslaver and US Army commander Dr. John Emerson in states and territories where slavery was illegal, according to both state laws and the Northwest Ordinance of 1787. Legal precedent warranted granting him freedom.
His case eventually made its way to the Supreme Court. In 1857, Chief Justice Roger Taney declared in a 7–2 decision that neither Dred Scott nor any other person of African ancestry could claim citizenship in the United States, and therefore they had no right to even make a claim in court.8 The decision also noted that Congress did not have the authority to outlaw slavery as it was integral to the United States Constitution.
This decision aroused outrage and deepened existing regional tensions such that after President Abraham Lincoln’s Emancipation Proclamation in 1863, the country plunged into a civil war over the economics of slavery and the political control of the country. The Union, representing the Northern states, wanted to keep the United States intact, whereas the Confederates wanted to secede because they believed that the federal government was usurping their authority to exploit labor, skills, and knowledge stolen from enslaved people, and destroying their economies in the process.
With the Confederates losing and finally surrendering in 1865, Congress quickly passed and ratified the Reconstruction Amendments. The Thirteenth Amendment abolished slavery. The Fourteenth granted citizenship to all persons born in the United States, and the Fifteenth gave all men the right to vote.
Of particular importance is the Fourteenth Amendment, which provided citizenship to people who were formerly enslaved, their progeny, and to all persons born in the United States. Besides providing equal rights for citizens, the Fourteenth Amendment provided a basic level of rights to all persons, whether citizens or not. All persons, regardless of immigration status, were to enjoy due process rights with respect to life, liberty, and property, as well as equal protection rights.
Dred Scott never lived to see the Civil War or the enactment of these amendments to the Constitution. On the heels of the unfavorable Supreme Court decision in 1857, he was sold to another family, and was freed by them in 1858. He died from tuberculosis a year after he obtained freedom. However, his fight for citizenship would later help countless immigrants enjoy the benefits that he did not live to enjoy.
German Immigrant Abolitionists
“We hold ourselves as free men who did not escape slavery in our homelands to support it here in America.”
—Carl Strehly and Eduard Mühl
In discussions of slavery and civil rights, there is scant mention of immigrants. The majority of the focus on resistance to slavery rightly goes to black freedom fighters, such as Frederick Douglass and Harriet Tubman, who fought slavery by serving as “conductors” of the Underground Railroad. But we also have to highlight how some Anglo-Americans, including the Framers of the United States Constitution, despised slavery and supported abolition. Besides Ella Lonn’s pioneering work on how the Irish, German, and other ethnic Americans experienced the Civil War differently from their white counterparts, not much else has been written about immigrants and the role they played in abolishing slavery in the United States.
Benjamin Franklin, one of the Framers of the United States Constitution and an abolitionist, abhorred German immigrants, and wanted controls on their immigration to the United States. He claimed that they were not smart, didn’t adopt local values, and endangered the whiteness of New England.9 Many German immigrants came from homelands where they did not have full citizenship rights—they could not vote, did not have the right to own property, or were subjected to high taxation and lacked freedom of speech. In the early nineteenth century, some had even fought against despotic rule in the German Confederation, and they moved to the new United States, expecting to share similar ideals.
As newly arrived immigrants with idealistic values, they were distraught when confronted with the institution of slavery. Slavery was an even harsher system of rights deprivation than what they had experienced, and one that contradicted the freedom and democracy that they were expecting in their new home. Some Germans, particularly the ones in Midwestern states, such as Missouri, had a radical idea that posed a special kind of problem to the new republic: they wanted to abolish slavery, and equated anti-slavery with immigrant rights.
These first-generation German immigrants included Friedrich Münch, Carl Strehly, Eduard Mühl, and Arnold Krekel. Together, they served as editors and contributors of German language newspapers in Missouri, writing articles and commentary against slavery in the 1800s, before the rise of popular abolitionist sentiments.
Friedrich Münch, in particular, penned many articles in the 1850s and 1860s in opposition to slavery, and successfully mobilized thousands of Germans to join the Union Army to fight the Confederates in the Civil War. He also opposed deportation of people who were formerly enslaved, stating, “We’ve no right to send away people who were born here, who have committed no crime, and who have indeed worked for the common good of their neighbors.”10 Yet Münch was no hero; he made decisions that were hypocritical and repugnant despite his advocacy. He purchased an enslaved person to help his wife with chores. He could not foresee integration, and so he proposed resettling emancipated people in a separate territory, such as Florida.
In a similar vein, fellow German journalists, such as Carl Strehly and Eduard Mühl, wrote against slavery in the 1840s for Hermanner Wochenblat before it became a popular movement.11 Initially, they were against abolition of slavery, and thought that the moral arguments against slavery would certainly turn the tide, but they changed their minds as they became disillusioned with the lack of progress.
Unlike the other first-generation German immigrants who came from educated and bourgeoisie backgrounds, Arnold Krekel came to the United States when he was seventeen years old from Prussia and had no fortune.12 He worked low-wage jobs to support himself as his family settled in St. Charles, Missouri, where Krekel experienced much antagonism from the pro-slavery population. In response to growing nativism against German and Irish immigrants, Krekel founded the St. Charles Demokrat in 1852. He was appointed as a US Western District Court judge by Abraham Lincoln, and presided over the Missouri Constitutional Convention of January 11, 1865, signing into law the Ordinance of Emancipation, which freed all the enslaved people in Missouri without any compensation to the enslavers.13
These German immigrants were regarded with much scorn where they lived. Their neighbors threatened them with violence and guerilla warfare because of their anti-slavery, pro-Union agenda. They were also living in extremely xenophobic times. The newly arrived Irish and German immigrants found themselves targeted by the nativist Know-Nothing movement.
After the Civil War, many Germans integrated over time with Anglo-Americans and abandoned their support for black liberation, though German immigrant pioneers such as Münch and Krekel continued to support and advance black suffrage and education. In this way, they helped to define a notion of American citizenship that valued racial justice, labor rights, and suffrage for all.
While these early German immigrants were unable to eradicate the negative impacts of slavery, their efforts helped create a more just society. Their conflict with native-born Americans shows us that immigrants did not need to adopt regressive anti-black views. Still, even with some foreign-born allies, it was up to African Americans to lead the struggle that ultimately won citizenship for all persons born in the United States.
Wong Kim Ark
Even after the passage of the Reconstruction Amendments, states still saw it within their authority to invoke police power to control migration at the state level. California tried to limit and exclude Chinese immigrants based on their earlier use of police powers to restrict black migration to the state.14 After the courts struck down taxation laws designed to target Chinese immigrants, California began to focus on character and conduct, such as lewd behavior, in order to craft laws for restricting Chinese migration. And “as California goes, so goes the nation.”
Instead of quelling these discriminatory state laws, the federal government passed exclusionary laws against the Chinese. The Page Act of 1875 prohibited the entry of immigrants who were considered undesirable, including anyone from Asia coming as a contract laborer, any Asian women engaging in prostitution, and any convict from another country.15
Unsatisfied with the Page Act, Congress followed up with the 1882 Chinese Exclusion Act, which explicitly placed a ten-year ban on immigrants from China, a clear example of race-based exclusion.16 The Chinese Exclusion Act of 1882 was amended and renewed several times. Subsequent acts extended the discrimination by prohibiting reentry after leaving the United States, and requiring all existing Chinese residents to obtain a certificate of residency in order to prevent deportation. The Exclusion Act and later reauthorizations banned all legal migration from China, and Chinese immigrants living in the United States were denied citizenship even if born in the United States.
One of the people denied citizenship was Wong Kim Ark, who was born in San Francisco in 1873 to noncitizen parents. When he was twenty-one, he visited his parents, who had returned to China. When Wong Kim Ark returned to the United States in 1895, he was denied entry on the grounds that he was not a United States citizen. Instead, he was confined on board the steamship, and had to file a writ of habeas corpus for his freedom. He was asked to present two white witnesses who could attest to his birth, because as a Chinese person, his own testimony carried no weight in the eyes of the law.
His case made its way to the U.S. Supreme Court, which explicitly rejected limitations on birthright citizenship and ruled that Wong Kim Ark was a United States citizen by virtue of his birth on US soil, even though his parents were not US citizens.17 The acceptance of birthright citizenship in 1898—a time when hysteria over Chinese immigrants was high—advanced the fundamental constitutional value of jus soli for all. Over time, courts have continued to defeat many efforts to limit birthright citizenship.
Even after he won citizenship, Wong Kim Ark faced persistent discrimination. Whenever he visited his parents abroad and returned to the United States, he was forced to show to show sworn affidavits that he was born in the United States.18 The United States did not repeal Chinese exclusion policies until 1943.19
The federal use of its immigration enforcement power to racially discriminate against Chinese immigrants directly contradicted the Fourteenth Amendment’s guarantees of equal protection to all. But despite the ruling in favor of Wong Kim Ark, over the next hundred years, the federal government continued to try to limit the immigration and naturalization of certain ethnic groups. We have these rights today only because people like Dred Scott and Wong Kim Ark stood up to fight for them. And we will only keep these rights if we continue fighting for them.
Chinese Six Companies
With the nation in the grip of hysteria about the supposedly unassimilable Asian immigrants, Congress continued to make new laws targeting them. The Scott Act of 1888 prohibited reentry by Chinese laborers who had left the country. It also nullified all existing certificates of identity that had permitted the bearers to make temporary trips to China.20
In 1892, Congress passed the Geary Act, which extended the Chinese Exclusion Act for another ten years, and required Chinese immigrants to register with the US government or face imprisonment with forced labor and deportation.21 But trying to get a registration certificate (a precursor to the Green Card) most certainly meant forced labor in jail and deportation because most Chinese immigrants at the time were unauthorized migrants who were considered deportable from the United States. It was designed to be a catch-22. No other immigrant group had to carry around documents proving their lawful status until 1928, when the government started issuing immigrant identification cards.22
These registration cards had their roots in the system of slavery. Before the Civil War, enslaved people were forced to carry identifying passes when they left the plantation, and free black people were required to bear papers proving that they were not slaves. The new registration requirement fueled anger in the Chinese community, leading to comparisons with “dog tags.”
The Geary Act also required white witnesses to testify to a Chinese person’s immigration status, and punished unauthorized immigration with one year of imprisonment and hard labor, along with deportation. In an early act of collective civil disobedience, led by the Chinese Six Companies, Chinese refused to register because they considered the law discriminatory and dehumanizing.
Established in 1862, the Chinese Consolidated Benevolent Association (CCBA), also known as the Chinese Six Companies, was an association of Chinese merchants. The main goal of the CCBA was to help Chinese migrants come to the United States and return to China, to take care of poverty-stricken or sick Chinese, and to send their dead back to China for burial.
As the Chinese population grew in the United States and they faced more discrimination, the CCBA got more politically involved. The Six Companies hired lawyers to litigate against discriminatory laws, hired personnel to protect Chinese businesses, campaigned for higher wages and fewer hours for Chinese workers, and smuggled thousands of Chinese across the US-Mexico border between 1882 and 1930.23
The Chinese Six Companies led the fight against the Geary Act by posting flyers in Chinatowns urging the 110,000 Chinese in the United States not to register for the “Dog Tag Law.” The Six Companies also raised funds to finance litigation against the Geary Act. The campaign was enormously successful and became the largest organized act of civil disobedience in United States history. Over 93,445 Chinese didn’t register, thereby risking arrest and detention.24
The Chinese Six Companies filed a lawsuit to challenge the Geary Act on the basis that hard labor and deportation constituted cruel and unusual punishment under the Eighth Amendment. They also argued that the law violated the Fifth and Sixth Amendments by imprisoning people to do hard labor without trial. Unfortunately, the Supreme Court disagreed and ruled that as a sovereign nation, the United States could choose to detain and deport any person or race.25 This provided the legal justification for the immigrant detention and deportation regime that exists today.
While the courts upheld the detention and deportation of undocumented Chinese under the Geary Act, the federal government soon realized that it did not have the enforcement capacity to arrest, detain, and deport about 100,000 undocumented Chinese immigrants. Though they did not win in court, the Chinese Six Companies won through civil disobedience, by encouraging people not to register. Therefore, the Geary Act became an unfunded mandate. Over time, the Chinese Six Companies filed lawsuits to carve out and broaden exceptions to the Geary Act for Chinese merchants, students, and family members of Chinese Americans. Congress finally removed these restrictions in 1943, during World War II, in a diplomatic gesture towards its ally, China. However, the remaining restrictions provided the structural basis for detentions and deportations that continue to this day.
Beyond the system of detention and deportation of undocumented migrants, the registration cards and requirements imposed by the Geary Act have carried over into present times. Present-day immigration laws still require immigrants to register with the United States government and inform the government within ten days after moving to a new address. Lawful permanent residents must carry an unexpired registration certificate, popularly known as a Green Card. These cards must be renewed every ten years, even though the permanent resident status itself does not expire. Even today we challenge “show me your papers” laws in states, such as Arizona and Alabama, mandates which the federal government has had on the books for generations.
Kaoru Yamataya
By the early 1900s, the United States had established the power to detain and deport all noncitizens, even without a trial. Deportation served as a social filter by restricting eligibility for citizenship and fundamentally shaping the social composition of the United States. The government enacted provisions to exclude entry to individuals who were poor, involved in sex work, or likely to become a public charge (dependent on the government for assistance). These provisions were primarily used to deny agency to immigrant women as independent economic actors. Individuals were deportable if they were deemed to become a public charge within three years of their entry.
Fifteen-year-old Kaoru Yamataya sought entry into the United States on July 11, 1901, in Seattle, Washington.26 She was allowed to land, but was arrested four days later, along with her fellow traveler, Masataro Yamataya, who was most likely her trafficker. Ten days after her arrest, immigration officials convened in a hearing presided over by non-judges, in English, a language that Yamataya did not understand. Board of Special Inquiry found that she was a person likely to become a public charge, which meant that she could be deported. They probably made this judgment because Yamataya was visibly pregnant at the time and did not seem to be married or to have relatives in the United States.
At this time in immigration history, targeting women was commonplace. The growing concern over premarital sex, single motherhood, and what was deemed to be inappropriate sexual behavior helped to shape immigration policies that would disproportionately exclude and deport immigrants who were women or girls.27 Unwed mothers faced deportation, because in this era pregnancy and morality were issues that seemed relevant to good citizenship. Women who were pregnant or suspected of participating in prostitution were the most likely to be deported. Women who arrived at US ports of entry without partners were suspected of coming for immoral purposes, such as engaging in sex work.
The Board of Special Inquiry decided that Yamataya should remain in custody while they requested an order of deportation from the Secretary of the Treasury, which was in charge of immigration enforcement at the time. The Board intended to return her to Japan at the expense of the vessel that had brought her to the U.S. Two months after her arrival, Yamataya gave birth to a baby boy. Unfortunately, he passed away from pneumonia while still in immigration custody.
But Yamataya hired legal counsel and fought back. She contended that she came to the United States to further her education, and that she did not engage in sex work.28 Yamataya’s lawyers contended that she was entitled to due process as someone on US soil, and that the law used by the Board to order her deportation was unconstitutional because it did not provide her with a proper hearing. Due process generally requires notice of allegations, the opportunity to be heard by a judicial officer, and a trial for certain types of judicial proceedings. Technically, Yamataya never received proper due process because non-judicial officials had presided over the hearing, and because it had been conducted in a language she did not understand.
The US Supreme Court decided that the hearing the Board of Special Inquiry had given her was sufficient and ordered Yamataya deported. However, in doing so, the Court ruled that the government could not deport a noncitizen without affording them procedural due process protections, including the right to a hearing. In so doing, the Court clarified that individuals have a right to a hearing even if they enter the country unlawfully and do not establish long-term residence.
Yamataya v. Fisher established the concept of due process for noncitizens, and the decision opened the door for noncitizens to appeal procedural irregularities in their deportation hearings. While this did not help Yamataya, her refusal to accept the questionable actions of men regarding her body and autonomy helped establish a baseline for granting due process to millions of people. Even though deportation is primarily enacted as a punishment, immigrants facing removal are subjected to similar administrative law procedures, which are quite limited in nature. Immigration courts are kangaroo courts, because they are under the purview of the politically motivated Department of Justice, therefore the autonomy and authority of the so-called “immigration judges” is quite questionable.
Yamataya was likely a survivor of sexual violence, at a time when the United States did not have laws that could qualify her for immigration status as a victim of violence. The government’s lack of concern about her likely exposure to sexual violence parallels the current lack of concern for Central American women seeking asylum at the US-Mexico border. If caught by Customs and Border Protection (CBP) agents, migrant women are often deported to Mexico’s violent border towns in the middle of the night.29 Rape along the US-Mexico border is so common that it is reluctantly accepted as a potential part of the price for admission to America, and many migrant women take birth control pills before making the dangerous journey north.30
The “likely to become a public charge” grounds under which Yamataya was deported continues to shape federal and state immigration policy. The 1996 Personal Responsibility and Work Opportunity Act, and the Illegal Immigration Reform and Immigrant Responsibility Act, eliminated access for lawful permanent residents to many social welfare benefits, such as Medicare, Medicaid, Supplemental Social Security Income, and food stamps.31 Some of the harsh provisions were later removed after protests from advocates, but confusion about access to benefits is so widespread in immigrant communities, that contrary to popular perception, most forgo receiving any form of assistance. In this manner, poverty is still used as a device to marginalize, if not outright exclude people who are perceived unfit for citizenship.
Bhagat Singh Thind and Takao Ozawa
Even though the Fourteenth Amendment made citizens of all persons born in the United States, Congress still limited citizenship acquired through naturalization to white persons and, through an amendment, added those with African origins.32 In 1917, Congress specifically banned all Asian persons from immigrating to the United States. Asian Americans were caught in limbo and condemned to second-class status, even those here legally.
Since the process of naturalization at that time was a judicial function, it was up to individual judges to decide who was a white person, or a person of African nativity or African descent. This led to an interesting patchwork of court decisions whereby Iranians and Armenians were able to win naturalization, but Asian Indians and Japanese individuals were deemed to be non-white.33 Since Asians were excluded until the 1940s, courts heard many cases involving their naturalization. In nearly all of these cases, the applicants claimed whiteness.
One of these seminal cases involved a Japanese immigrant. Takao Ozawa was born in Japan but moved to the United States in 1894, when he was nineteen years old, and grew up in California. He graduated from Berkeley High School, studied at the University of California, Berkeley, and then moved to Hawai‘i. He sought naturalization in 1914 and fought his way up to the Supreme Court. In a brief that he wrote to the Court, Ozawa disavowed any connection with Japanese churches, schools, or organizations.34 He described how he had been educated in the United States. He claimed to speak mostly English and told the court that his children did not speak Japanese at home.
“In name, I am not an American, but at heart I am a true American.”
—Takao Ozawa
Ozawa essentially distanced himself from anything having to do with Japan and aimed to present himself higher on the racial pecking order based on his literal and metaphorical whiteness. He conflated being white with being American. Neither the Hawai‘i District Court nor the US Supreme Court agreed with him.35 The United States contended that the proper distinction wasn’t based on nativity or skin color, but that “white” was equivalent to European, and none of Ozawa’s ancestors had been European.
The Ozawa decision served as precedent until Congress removed barriers for Japanese naturalization in 1952. By the time Ozawa died in 1936, he had made Hawai‘i his home, although the United States had failed to consider him as one of its own.
Another major case involved Bhagat Singh Thind (1892–1967), who was born in Punjab, India and came to the United States in 1913. A wave of immigrants came from India at the turn of the century, and by 1910 there were between five and ten thousand Asian Indians in the United States. At the time, anthropologists generally regarded Asian Indians as Caucasian, not Mongolian. In 1918, Thind was actually granted citizenship, only for the document to be voided by the Immigration and Naturalization Service four days later. He served in World War I for the United States, and was honorably discharged, after which he once again applied for United States citizenship while residing in Washington State.
Once again, in 1920, Thind received citizenship, which the government appealed once more, despite his military service to the country. In 1923, the US Supreme Court heard his case. In contrast to Ozawa, Bhagat Singh Thind claimed that as an Asian Indian, he was Caucasian, and therefore white, particularly because of his high caste.As a matter of fact, Aryans had previously colonized India, so Thind based his claim on this history.
The Supreme Court disagreed with him, and ruled that Asian Indians were not eligible for US citizenship. (Even though Thind was Sikh, not Hindu, the courts used the term ‘Hindoo’ to describe all Asian Indians regardless of religion.)36 Unfortunately, more than sixty-five Asian Indians were denaturalized in the wake of Thind’s case, including A. K. Mozumdar, who had been the first Asian Indian to become naturalized as a white person in 1913.37
After the decision, Thind moved to New York, where he again applied for citizenship after Congress passed a law in 1935 that allowed US veterans to become naturalized. After three attempts, Thind finally gained citizenship in 1936 without a challenge from the government.
Thind went on to complete his doctorate degree in the United States, wrote riveting books on Sikh philosophy, and delivered lectures on metaphysics. He campaigned actively for the independence of India from Britain and helped Indian students in any way he could.
Thind and Ozawa tried to prove they were white. They tried to show they had assimilated and that they were deserving of American citizenship. The courts, engaged in trying to legally define the legal construction of race, failed Thind, Ozawa, and many others. Perhaps they would have had more success if they had challenged race-based naturalization laws as being per se inconsistent with the United States Constitution. But we will truly never know.
As history rolled on, undocumented immigrants would try to show that they deserved citizenship because they were Americans in every sense but their papers. They would also fail for at least two decades.
Kajiro Oyama
“I was aware that my rights were being violated but if that’s what the president wanted us to do—then we must evacuate. It was my intention to prove my loyalty and looked forward to joining the service. That is—until the property was escheated. My desire to join the service was to defend my country and, more specifically, to defend my home. When they took our home, I changed my attitude completely. I could never be hostile to the USA, but I was bitterly disappointed and felt like a man without a country.”
—Fred Yoshihiro Oyama, US citizen, son of Kajiro Oyama
During Oyama’s journey to justice, the United States remained opposed to the large number of Asian immigrants arriving through Mexico, Canada, Hawai‘i, and even the Philippines, which at the time was a US territory. Individual states could no longer enact immigration laws explicitly excluding people because the Fourteenth Amendment forbade it, so started to focus on creating “facially neutral” property laws that would dissuade the new immigrants from settling in the state. One example was California’s Alien Land Law of 1913 (also known as the Webb-Haney Act), which was specifically a response to the thousands of Japanese immigrant farmers who were perceived to be competing with their Anglo-American counterparts. It barred Japanese and other Asian immigrants who were “ineligible to citizenship” from owning agricultural property.38
Similar to the Chinese, early Japanese immigrants encountered discrimination in various aspects of their life. On the federal level, the government started to ban their entry into the country in 1907. On the state level, they were prevented from owning property, and schools started to segregate the children of Japanese immigrants.39 Initially, Japanese immigrants tried to bypass the land laws by purchasing the land in the name of their minor children who were US citizens. Then they could manage the land as the guardians of their childrens’ estate. In response to this tactic, in 1920 California amended the Alien Land Law to make anyone who was ineligible for naturalization also ineligible to serve as guardians to property owners. Furthermore, it specified that the purchase of property in the name of someone else would be presumed to represent an attempt to bypass the Alien Land Law and thereby subject to forfeiture.40
Over time, other states established anti-Japanese land laws, which for the most part were rarely enforced. But during World War II, after the United States rounded up thousands of Japanese and placed them in internment camps, California funded lawsuits to challenge their property ownership.41 The goal of the lawsuits were to show hostility toward the Japanese, extort them into selling their property to the state at less than full value, and dissuade them from returning to California.
With the help of the Japanese American Citizens League (JACL), in 1945, Kajiro and Fred Oyama challenged the Alien Land Law.42 Born in Japan in 1899, Kajiro Oyama came to the United States in 1914 hoping to study at California Institute of Technology.43 He was ineligible for United States citizenship because, at that time, the process of becoming a naturalized citizen was closed to Japanese individuals on racial grounds. Therefore, because of the Alien Land Law, he also could not own land, so he worked on farms that were leased by his uncle.
In 1923, Oyama bought twenty-three acres in Chula Vista, near San Diego, California, and deeded the property to a white acquaintance, Arthur Glower. Over time, Oyama’s farm prospered. He married and established a family in the United States. In 1934, Kajiro Oyama purchased land in San Diego in the name of Fred Oyama, his son, and served as the guardian of the person and estate of his son.44
Seven years later, on February 19, 1942, President Roosevelt issued Executive Order 9066, requiring the internment of persons of Japanese ancestry along the West Coast. Kajiro did not want to be placed in an internment camp, so he leased some farmland in Utah, and moved there with four other families during the brief period allowed for “voluntary evacuation.”
Although the Oyama family escaped to Utah, California claimed that the purchase of Kajiro Oyama’s property had involved a fraudulent evasion of the Alien Land Law, and that the property consequently now belonged to the state of California.
The Oyamas took this case all the way to the US Supreme Court though they changed their tactics along the way. Instead of arguing that the Alien Land Law was a violation of equal protection for both the immigrant parent and the US citizen child, the case focused on the US citizen child and how he was being deprived of property rights.
In 1948, the United States Supreme Court ruled that the Alien Land Law violated Fred Oyama’s equal protection rights as a United States citizen.45 The state of California’s attempted confiscation of Fred Oyama’s property because of his father’s ancestry constituted discrimination based on national origin and race.
At a time when racial discrimination and hostility against the Japanese was at an all-time high, the Oyama family used the legal system to fight for their rights, and for the rights of countless others. The Oyama case helped to turn the tide against the discrimination that continued to be directed recently interned Japanese families. The Oyama case also led to the invalidation of a similar alien land law in Oregon. However, the case missed a critical opportunity to invalidate the racially discriminatory treatment of noncitizens, because it opted to not address the equal protection claim made earlier by Kajiro Oyama, the noncitizen father. This demonstrates the troubling consequences of relying on citizenship as a basis for rights. In so doing, the Supreme Court allowed California to continue to deny land ownership to noncitizens.
The Oyama family never returned to Chula Vista and remained in Utah until 1946.46 Kajiro Oyama eventually owned and farmed three hundred acres in San Diego County and became a US citizen. He died in 1998, when he was ninety-nine years old.
The California Supreme Court finally, in 1953, declared the Alien Land Law unconstitutional in a test case led by another Japanese immigrant, Sei Fuji,47 but California did not repeal the law until 1956. In 1988, Congress finally offered an official apology and individual payments of twenty thousand dollars to Japanese Americans who had been held in internment camps during World War II without charges or trial.48 However, thousands of Japanese immigrants and Japanese American citizens never received the full value of their land nor compensation for the freedoms they had lost.
Claudia Jones
“The Lady with the Lamp, the Statue of Liberty, stands in New York Harbor. Her back is squarely turned on the USA. It’s no wonder, considering what she would have to look upon. She would weep, if she had to face this way.”
—Claudia Jones
The 1952 McCarran-Walter Act finally lifted racial restrictions on citizenship.49 However, it added many more barriers as well, including but not limited to deportation for criminal conviction, drug trafficking, homosexuality, prostitution, sexual deviance, crimes of moral turpitude, economic dependency, and polygamy. Yet deportations under these new restrictions did not go unchallenged by advocates, who continued to try to carve out exceptions in the law.
Born Claudia Vera Cumberbatch, Claudia Jones is a classic case of an advocate who challenged her politically motivated deportation. She was born in Trinidad in 1915.50 When she was about nine years old, her middle-class parents moved to the United States to pursue better opportunities. A few years later, when her parents experienced discrimination during the Great Depression, Jones started to learn about the Jim Crow oppression that black people suffered in America. At seventeen, Jones contracted tuberculosis, which became a lifelong chronic condition, perhaps contributing to her early death.
In 1936, inspired by how the Communist Party had established the public defender system, Jones joined the Young Communist League (YCL). She quickly rose through the ranks, writing many letters and publications to promote black nationalism among the Marxist ranks. As a black nationalist and communist, Jones put black women at the forefront of class struggle. Jones is part of a long tradition of black American women who regarded their oppression as unique from other women and from black men. She popularized the term “triple oppression” to describe black women’s oppression and articulated a socialist feminism that considered not just race, but the various struggles of all working women.
Jones was arrested multiple times in violation of the McCarran Act and the Smith Act, laws that limited communist activity, and deported radicals from the United States.51 Due to her membership in the Communist Party, she could not become a United States citizen. In the midst of her legal struggles against deportation, Jones suffered heart failure and was hospitalized several times for treatment of coronary heart disease and hypertension. In 1955, Jones was detained for nine months while awaiting deportation. While detained, her colleagues petitioned successfully for her release based on her health. Her colleagues also tried to delay her deportation by requesting a stay because of her health.52
Claudia Jones was not deported. Due to her radical views, Great Britain did not want her in Trinidad, which was still a British colony. But because of her influence, they instead offered Jones citizenship in Great Britain.53 She took the offer and left for Britain in 1955. Jones became an even more popular figure in Britain, contributing to the rise of the British Communist Party. Scholars believe that Jones was to the left of Karl Marx, because Jones believed that capitalism alone did not account for racism and sexism. Ironically, Jones is buried to the left of Karl Marx in London’s Highgate Cemetery.54
Claudia Jones challenged the idea of citizenship and belonging being based solely on the circumstance of her birth. She was brought here as a child and raised in the United States. Her political work is what caused her deportation, because the United States considered radical thought to be threatening and inherently foreign, even though Jones was as American as one could be.
Jones referred to her deportation as an exile, pointing out that instead of being forced to go back to her origin, she was being banished.55 In due course, long-term residents, people brought here as children, and people with family ties in the United States, would challenge deportation by adopting a similar language to evoke the pathos of exile.
As we will explore more in the next chapter, immigration enforcement continues to be predicated on excluding those who are deemed a threat or perceived as unfit for US citizenship. The United States continues to deny citizenship to people who have ever been associated with the Communist Party.56
Celestino Almeda and the Filipino War Veterans
Before World War II, Asian Americans were an explicit object of racial discrimination under immigration law, which declared all new Asian arrivals as ineligible for US citizenship. But during World War II, Congress granted enlistees the right to naturalize, regardless of their national origin or manner of entry. Until the war ended, this gave all immigrants an incentive to serve and a way for them to naturalize. Between 1943 and 1946, the United States sent naturalization officers from post to post throughout England, Iceland, North Africa, and the Pacific, naturalizing thousands of foreign nationals who were serving with the United States.
Since the United States was in control of the Philippines when the Japanese army invaded the country in 1941, President Franklin Delano Roosevelt signed a presidential order to bring all military forces in the Philippines under US control and as an incentive, allowed Filipino enlistees to become United States citizens if they filed applications by the end of 1946.57 Before and during the war, Filipinos were considered American nationals, similar to the designation afforded to American Samoans today. At least 250,000 Filipinos answered the call to serve and fought with American forces in World War II against Japanese forces. After the war, in 1946, the Treaty of Manila relinquished US sovereignty, and declared the Philippines an independent nation even while retaining military bases on the island. Fearful that thousands of Filipino veterans would now be eligible for the benefits promised to them during the war, the United States stripped recognition from Filipino soldiers through the Rescission Act of 1946, and it explicitly barred these war veterans from rights, privileges, or benefits. As the cherry on top, the United States also removed a stationed naturalization officer in the Philippines before the war was over, depriving many enlistees the opportunity to even apply to become citizens of the United States.58
World War II compelled the United States to ease citizenship barriers; the country came face to face with its hypocrisy as it fought a war against Nazis abroad while openly discriminating against racial and ethnic groups at home. Congress abolished naturalization quotas with regard to Chinese in 1943, Indians, and Filipinos in 1946, and Japanese and all others, regardless of nationality in 1952.59 Finally, in 1965, Congress eliminated racial quotas in immigration law, and opened the door to immigration based on family and employment.60 The changes allowed new Filipino immigrants to come to the United States, and reinvigorated the desire to emigrate to the US among Filipino veterans, who were now middle-aged.
After almost twenty years, Filipino veterans finally began their struggle to recapture the immigration and military benefits that were denied them at the end of World War II. The first veteran to challenge the denial was Marciano Haw Hibi.
Born in Manila in 1917, Hibi enlisted in the Philippines Scouts, a United States Army unit, in 1941.61 He was captured by Japanese soldiers and released after six months of internment. In April 1945, after the liberation of the Philippines, Hibi rejoined the Scouts and served until his honorable discharge in December 1945. Hibi entered the United States in 1964 on a visitor-for-business visa and filed for naturalization. He asserted that even though he served in the war, the United States failed to inform him of his right to naturalize in due time, and this amounted to affirmative misconduct. In 1967 the district court agreed with Hibi, and the Ninth Circuit upheld the decision, but the Supreme Court dismissed his case on appeal in 1973.62
Inspired by Hibi, other Filipino war veterans filed similar lawsuits—individually and in class actions, alleging that the United States had acted in bad faith in 1945 by removing the only naturalization officer in the Philippines, to ensure that veterans would not be able to naturalize in time.63 They ultimately lost the class action, but their plight reached the ears of some in Congress. In 1990, President George H.W. Bush signed a law offering citizenship to all Filipino war veterans still alive.64 In this manner, some Filipino war veterans finally became United States citizens, but about fifty years late.
However, even with United States citizenship, the struggle of these veterans continued. Many who immigrated died without reuniting with their sons and daughters, because the sponsorship process to bring them from the Philippines took so long. Of the 4,500 still alive, many were denied benefits under the law.
One example was Celestino Almeda. Before World War II he was a vocational industrial arts instructor in a high school in the Philippines. In 1941 he answered President Roosevelt’s call and enrolled in active duty with the Anti-Sabotage Regiment65 of the US Philippine Commonwealth Army Forces.66 He was honorably discharged in 1946 and kept meticulous records of his service. Almeda finally became a US citizen in 1996. However, since many records had been destroyed or erased, his name was not in the Army’s National Personnel Records, so despite having gained citizenship, he was denied veteran benefits and recognition for his service.
In 2009, the Obama administration provided one-time payments: $15,000 for US citizens and $9,000 for Filipino citizens.67 By the end of 2017, $226 million had been awarded to more than twenty-two thousand people. But Department of Veterans Affairs records also show that more than half of the applicants who tried to qualify were denied. Until recently, Almeda was one of them.
Almeda represented the American Coalition for Filipino Veterans as a spokesperson and testified before Congress.68 A resident of Gaithersburg, Maryland, Almeda became a regular feature in the hallways of congressional buildings. He spoke to as many legislators as he could about the plight of war veterans such as himself who had served honorably but had been cast aside. In 2017, at the age of one hundred, Almeda finally received $15,000 from the Department of Veteran Affairs.69 He also received a Congressional Gold Medal—the highest civilian honor bestowed by Congress—and many salutes from members of Congress.70
Alas, many thousands died awaiting the day the United States would recognize their service. Regardless of what one may think of military service, the United States foreclosed a path to citizenship, rescinded veteran’s benefits, and denied recognition to Filipino war veterans for their brave wartime service. Even today, immigrants who have served in the United States military are denied recognition, face deportation for decades-old convictions, and have to worry about family members being deported. They deserve better.
Lundy Khoy
One and a half million refugees from Cambodia, Vietnam, and Laos came to the United States as refugees during the 1980s. Their children were very young and grew up as Americans. As refugees in the United States, they faced many obstacles, including language barriers, being resettled in neighborhoods with high crime and unemployment rates, and mental health needs stemming from war-related trauma.
Adjustment was particularly difficult for Cambodian refugees who fled a genocide that killed one third of the population. Ninety-nine percent of Cambodian refugees had faced starvation, ninety percent had lost a close relative in the genocide, and seventy percent continued to suffer from depression.71 Faced with these difficulties, many of the younger refugees who grew up in the United States turned to gangs as surrogate families, and to drugs for escapism.
Lundy Khoy was born in a Thai refugee camp to Cambodian parents who fled the war that had torn their country apart. When Khoy was just one year old, her family was resettled in the United States. When she was nineteen, Khoy fell in with a bad crowd. After a night of partying, a police officer asked her if she had any drugs. She truthfully said she had several tabs of ecstasy, resulting in her arrest for possession with intent to distribute.72 Khoy pled guilty and was given a five-year sentence in criminal court. She was detained by ICE officers, and informed that she would be deported to Cambodia.
Since Cambodia did not issue the travel documents necessary for deportation, Khoy was eventually released from detention. She returned home, finished school, went back to work, actively volunteered in multiple charities in her community, and eventually got married and had a son with her US citizen husband. After working with a filmmaker to document her story in the short film, Save Lundy, she began to advocate in Congress for fair and humane deportation laws. In 2016, Khoy was granted a Governor’s pardon.
Unfortunately, Southeast Asians such as Khoy are three to four times more likely to be deported for old criminal convictions than people from other migrant communities.73 Since 1998, over fifteen thousand individuals have received final orders of deportation to Cambodia, Laos, and Vietnam.74 Through her advocacy, Khoy changed what could have been a disaster, but thousands more have not been given a second chance. They are sent back to countries where they have never set foot before, since many were born in refugee camps outside their parents’ countries of origin.
Over time, naturalization became the government’s second line of defense against immigrants they considered undesirable. Nowadays, immigrants are thoroughly vetted before they can gain lawful permanent residence. And they are vetted again when they apply for US citizenship. In this manner, all immigrants are vetted at least twice before they can become citizens.
The current deportation regime has its roots in efforts to exclude African Americans and Asian Americans. But ironically, these groups remain at the periphery of the debate over immigration policies and reforms. Though today, deportations do not just target black and Asian immigrants, the deportation regime continues to be racialized, even as the government increasingly uses the criminal justice system to funnel people into the prison-deportation pipeline.75. Black immigrants still are disproportionately targeted for deportations, as are Southeast Asian refugees like Khoy.76
Nothing compares to the Fugitive Slave Acts that treated black persons as equivalent to property. But the laws that allowed local authorities to pursue free black persons and fugitives from slavery now emulated by state law enforcement to arrest, detain, and deport immigrants. Engineered by modern-day white nationalists, states such as Arizona, Georgia, Florida, and Alabama have passed brutal laws against undocumented immigrants for the purpose of “attrition through enforcement.” These laws do not just harm immigrants. Because of the racialized regime of enforcement, they also target United States citizens, many of whom have been arrested, detained, and deported.
In order to cut through the current impasse on immigration, immigrant rights, and criminal justice, the political struggles of brown and black people and others need to recognize our shared experiences and common goals, so that we can together build a racial justice movement. Without actively working and building alliances in black communities, non-black immigrant rights advocates risk isolating ourselves from those with whom we have the most in common.
