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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 circumstance.¹¹ If the laborer did not have a certificate, U.S. officials were to assume the person was in the United States in violation of exclusion laws and therefore subject to deportation. No law had ever required this of any immigrant on U.S. soil; it was a new “documents regime” that applied only to Chinese immigrant workers.¹²

The Chinese immigrant community quickly organized against the Geary Act. Led by the Chinese Six Companies, which was “the umbrella organization for the large kinship and mutual benefit organizations established in the United States to serve Chinese immigrants,” individual Chinese immigrants refused to apply for the certificates of residence.¹³ Then, when the government began ordering the deportation of Chinese workers who did not register for certificates, the Chinese Six Companies mounted a legal challenge to the new law and the government’s power to deport. Their lawyers selected three test cases: Fong Yue Ting and Wong Quan, who had each lived in the United States for at least thirteen years, and Lee Joe, who had lived in the United States for eighteen.¹⁴ The Supreme Court combined their cases into one, Fong Yue Ting, and heard it within a year.¹⁵

Once in front of the Supreme Court, lawyers for Fong Yue Ting, Wong Quan, and Lee Joe challenged both the way Chinese exclusion laws had created an explicit racial class and the government’s ability to deport at all. The lawyers argued that Chinese exclusion violated the equal protection clause of the Fourteenth Amendment since it was aimed only at Chinese immigrants. Chinese immigrants, they pointed out, were certainly not being treated the same as Irishmen or Frenchmen.¹⁶ Moreover, they claimed the law violated the Tenth Amendment to the Constitution, under which “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.” Since the colonial period, some states had exercised the power to remove immigrants. When the federal government assumed this power in Chinese exclusion, the lawyers maintained, it was creating the power to deport, without enumeration in the Constitution.¹⁷ The attorneys for the appellants, therefore, attacked the Geary Act by arguing that Congress could not create an explicit racial class, and, even if lawmakers could, they could not do it through deportation.

The lawyers then made the case that, if the Supreme Court upheld the federal government’s power to deport and the racism of the law, then the deportation proceedings faced by Fong Yue Ting, Wong Quan, and Lee Joe were unconstitutional. Immigration authorities had arrested Fong Yue Ting, Wong Quan, and Lee Joe under civil proceedings, under civil law. Their lawyers argued that deportation represented a punishment. The proceedings to administer a deportation, therefore, needed to be consistent with the constitutional rights afforded to criminal defendants in the Fourth, Fifth, and Sixth Amendments. The proceedings set up under Chinese exclusion, they argued, did not protect against unreasonable searches as outlined in the Fourth Amendment. Nor did the administrative hearings of deportation provide Fifth Amendment due process or the Sixth Amendment right to a jury trial. The lawyers knew, as many others would find out not long after the Court decided the case, that there was a great deal at stake in the legal designation of whether or not deportations represented a punishment.

A large part of the case for the Chinese immigrant community also looked to challenge the ways that the new federal power of deportation violated rights of long-term residents. Lawyers for Fong Yue Ting, Wong Quan, and Lee Joe argued that since 1882, there were two separate classes of Chinese workers in the United States: unlawful residents and lawful, long-term residents.¹⁸ The unlawful residents, the lawyers argued, had come to the United States in violation of the law of Chinese exclusion in operation since 1882. This class, the lawyers acknowledged, were “lawless intruders … having no right to be here.”¹⁹ The other class, though, the one that Fong Yue Ting fell into, was lawful permanent residency. The lawyers claimed that this class of immigrants constituted a large proportion of the Chinese laborers in the United States in 1893. “Tens of thousands of Chinese laborers,” they argued, had entered the United States before the Chinese Exclusion Act “and remained here ever since.”²⁰

The Six Companies lawyers insisted that long-term Chinese residents had what amounted to permanent residence and that deporting them violated international law. The lawful right to remain for long-term residents, as the lawyers understood it, originated in two sources. First, it was rooted in a category of international law known as the status of denizen; second, it derived from the fact that the U.S. government had invited these workers to come to the United States under an international treaty. The immigrants were clearly not citizens. The lawyers claimed that Chinese laborers who had moved to the United States prior to 1882 fell into the category of “denizens,” or what would soon become known as lawfully admitted immigrants. The lawyers also claimed that U.S. law granted long-term residents lawful status; these immigrants had lawful residence because, under the Burlingame Treaty of 1868 signed by China and the United States, thousands of Chinese laborers had set up legal residence in the United States by invitation.²¹ The immigrants had, in effect, “been told that if they would come here they would be treated just the same as we treat an Englishman, an Irishman, or a Frenchman. They have been invited here, and their position is much stronger than that of an alien, in regard to whom there is no guarantee from the Government, and who has come not in response to any invitation, but has simply drifted here because there is no prohibition to keep him out.”²² The lawyers insisted it was unlawful to expel such immigrants, except as a punishment for a crime or during a war.

In a five-to-three decision, the Supreme Court ruled against Fong Yue Ting, Wong Quan, and Lee Joe and unambiguously endorsed the government’s power to deport. To address the Tenth Amendment challenge, the Court linked the authority of the federal government to deport people to the power of exclusion, which the Court had earlier cleared. In Chae Chan Ping v. United States (1889) and Nishimura Ekiu v. United States (1892), the U.S. Supreme Court ruled that the federal government possessed the power to exclude immigrants.²³ In these cases, the Court described the ability to exclude immigrants as originating from the sovereign’s authority to prevent foreign aggression. The Court looked to international law to justify the power of exclusion, citing scholars such as Emmerich de Vattel, Robert Phillimore, and Francis Wharton. As the Court put it, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”²⁴ Here, as legal scholar Sarah Cleveland has pointed out, the Supreme Court “utilized international law as a source of authority for U.S. government action, but did not recognize it as a source of constraint.”²⁵ The justices then extended this logic of sovereignty to establish the government’s additional authority to deport immigrants, finding that deportation was simply an extension of the government’s power to exclude. “The power to exclude aliens,” the Court wrote, “and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.”²⁶

The Court declined to define or limit what constituted a foreign threat or an instance of aggression and, in doing so, resolved the Fourteenth Amendment challenge and upheld the racism behind Chinese exclusion. It did not matter what form a perceived aggression took, the Court wrote, “whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.”²⁷ If the federal government determined that some event or instance represented a threat to national security, it possessed the power and authority to protect its national independence. By this logic, if the government found Chinese immigrants a threat, it had the right to exclude and deport them. The government could create a distinct racial class in immigration law, and that did not violate the Fourteenth Amendment.

When the Supreme Court delivered its decision, it seemed to uphold the power to place long-term residents and new immigrants on the same legal footing. Yet, the Court included a statement in its decision that seemed to acknowledge the existence of the legal category of domiciled or legally admitted aliens. “By the law of nations,” the Court admitted, “doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, acquire, in one sense, a domicil there … while they are permitted by the nation to retain such a residence and domicil, [they] are subject to its laws, and may invoke its protection against other nations.” But the Court quickly added that long-term Chinese immigrants “continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws; and therefore remain subject to the power of Congress to expel them, or to order them to be removed and deported.”²⁸ Thus, as the Court understood it, both groups of immigrants could be deported because long-term residence did not protect a person from deportation. On these grounds, Fong Yue Ting and Wong Quan could be deported for not registering for a certificate of residence.

Part of the plaintiffs’ argument in Fong Yue Ting turned on the claim that if the government did possess the power of deportation, then it represented a punishment, but here, too, the Court disagreed. Deportation under the Geary Act, the Court determined, “is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country.”²⁹ Because deportation was not a punishment, the Court reasoned, a deportee was not “deprived of life, liberty, or property without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.”³⁰

The Supreme Court further clarified the distinction between punishment and deportation by finding that removing or expelling a citizen represented a punishment, but that the removal of a noncitizen did not. As the Court majority asserted, “the order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment.”³¹ Instead, as the justices understood it, deportation “is but a method of enforcing the return to his own country of an alien who does not comply with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.”³²

Not all the justices agreed with the Court majority, and in the dissenting opinions of Melville Fuller, David Brewer, and Stephen Field were different schools of thought on the range of legal questions posed in Fong Yue Ting. When the Court majority upheld the authority of the political branches of the federal government to deport by linking it to national protection, justices invoked a category of power in U.S. law known as the plenary power. Under the plenary power, as legal scholars Thomas Alexander Aleinikoff, David A. Martin, and Hiroshi Motomura write, “the judicial branch … defer[s] to executive and legislative branch decision making.”³³ The plenary power doctrine limited the right of courts to review the powers of the federal legislative and executive branches. Justices Fuller, Brewer, and Field worried that what the majority proposed in its framing and interpretation of the plenary power was so radical that it cut at some of the most basic constitutional protections. In Fong Yue Ting, the dissenting justices feared that expansion of the plenary power would give rise to a despotic power.³⁴

The dissenting justices questioned the majority’s insistence that deportation and exclusion represented the same unlimited power created by sovereignty and, instead, found this logic to violate the Constitution. The key for Field was that the government’s authority to exclude aliens did not give it the authority to deal with a person already on U.S. soil. “[W]hile the general government is invested,” Field wrote, “in respect of foreign countries and their subjects or citizens, with the powers necessary to the maintenance of its absolute independence and security throughout its entire territory, it cannot, in virtue of any delegated power, or power implied therefrom, or of a supposed inherent sovereignty, arbitrarily deal with persons lawfully within the peace of its dominion.”³⁵ As Brewer saw it, in building the power to deport based on the rights inhered by sovereignty, the government was effectively wiping away robust constitutional rights on the grounds that it was protecting the country. Deportation, Brewer said, “can be exercised only in subordination to the limitations and restrictions imposed by the Constitution.”³⁶ Brewer’s dissent further questioned the government’s lack of constitutional limits. “It is said,” Brewer wrote, “that the power here asserted [of deportation] is inherent in sovereignty.” But this doctrine is, he warned, “one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced?” Should those limits be set by Congress or the Court or international law? “The governments of other nations have elastic powers,” but, Brewer declared, “ours are fixed and bounded by a written Constitution.”³⁷

The dissenting justices also insisted that if the government did have the power to deport, then it constituted a punishment. Brewer wrote that under the Geary Act a person who did not secure a certificate of residence might be deported, and this consequence for not acting was a punishment. Deportation, Brewer asserted, “involves first an arrest, a deprival of liberty; and second, a removal from home, from family, from business, from property.”³⁸ “Everyone knows,” he continued, “that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel.”³⁹ As Field saw it, the deportation of long-term residents like Fong Yue Ting represented a “punishment … beyond all reason in its severity. It is out of all proportion to the alleged offense. It is cruel and unusual. As to its cruelty, nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all relations of friendship, family, and business there contracted.”⁴⁰ Field here seemed to oppose the collapsing of the legal categories of long-term and short-term immigrants. Long-term residents, like citizens, should not be deported without the constitutional protections relating to punishments. Brewer and Field focused on the experience of a potential deportee and argued that since deportation felt like a punishment, it should be processed as one. The dissenting justices did not see the clear line between protection and punishment drawn by the Court’s majority.

Justice Field argued against what he understood as the weight of the decision—that it established a separate tier of law that treated immigrants differently from citizens. To make his point, he raised two questions: “If a foreigner who resides in the country by its consent commits a public offense, is he subject to be cut down, maltreated, imprisoned, or put to death by violence, without accusation made, trial had, and judgment of an established tribunal following the regular forms of judicial procedure? If any rule in the administration of justice is to be omitted or discarded in his case, what rule is it to be?” Field warned that if the government constructed a second tier of law, it would be easy to put aside the rights and liberties valued in the American system of government. “If one rule may lawfully be laid aside in this case, another rule may also be laid aside, and all rules may be discarded,” he wrote. “In such instances, a rule of evidence may be set aside in one case, a rule of pleading in another; the testimony of eyewitnesses may be rejected, and hearsay adopted; or no evidence at all may be received, but simply an inspection of the accused.”⁴¹

The dissenting opinions brought into relief just what the Supreme Court upheld in Fong Yue Ting. The minority thought deportation should be classified as punishment; they worried about the expansions in the plenary power and the seeming violations of constitutional protections. The majority opinion understood the legal questions posed in the case quite differently. They upheld deportation, defining it as something as protective of national sovereignty, rooted in the government’s power of immigrant exclusion. The Court’s decision also stated that deportations were guided by the U.S. Constitution, and that the proceedings set up under the laws of Chinese exclusion were constitutional.

After Fong Yue Ting, administrative officials set out to enforce the meaning of deportability that the Supreme Court articulated. One of the first challenges federal officials in the post–Fong Yue Ting world had to face was the prospect of deporting perhaps the 110,000 people who had refused to register for certificates of residence. The government did not have the budget for deportations on this scale. Nor did law clearly define who was in charge of deporting this number of people. Throughout the West, a chaotic mix of local and state officials as well as private citizens began arresting people.⁴² Six months after the Fong Yue Ting decision, on November 3, 1893, Congress solved some of the immediate enforcement challenges when it passed legislation known as the McCreary Amendment. The McCreary Amendment extended the time limit that Chinese laborers in the United States could sign up for certificates of residence. Chinese immigrants, by and large, registered.⁴³

Deportation Proceedings Under Chinese Exclusion

A much longer term challenge facing those tasked with enforcing deportations under Chinese exclusion arose from the fundamental question: what did it really mean in the post–Fong Yue Ting world that deportation was not a punishment? Finding the answer was incredibly challenging and took decades. It was worked out on the ground in communities where people of Chinese descent lived, by a collaboration of federal and state officials, through the kinds of enforcement actions—arrest, hearing, and appeal—that made up deportation proceedings of Chinese exclusion.

The first stage of deportation proceedings as set up under Chinese exclusion took place in front of a federal administrative official known as a U.S. commissioner. U.S. commissioners were not unique to the immigration bureaucracy; they were administrative officers appointed to reduce the workload of the courts. The appellants had questioned the constitutionality of the administrative hearing in Fong Yue Ting in some of the finer points of their argument. Holding administrative hearings, the lawyers argued, was not consistent with Fifth Amendment due process rights. The Supreme Court had disagreed. The judicial branch was capable of hearing deportation cases, but, according to the Court, it was not the only branch that could do so. It was not unprecedented, the Court noted, for officials in other branches of the government to make decisions about laws, and that doing so did not represent a violation of due process.⁴⁴

If a commissioner found an immigrant deportable, the immigrant could petition for a writ of habeas corpus and appeal the ruling.⁴⁵ The initial appeal needed to take place within ten days of the original deportation order. If done so, the case first went to the federal district court.⁴⁶ If an immigrant still wanted to challenge his or her deportation after a hearing at the district court, the case could then be appealed to the circuit court of appeals and finally to the U.S. Supreme Court. In all of these levels of appeals, judicial officers—federal judges—decided the cases.

People facing this civil proceeding did not have many of the constitutional protections open to people in criminal proceedings. The 1902 district court hearing of United States v. Lee Huen revealed the limits of the Fifth Amendment. “If defendants fail to give testimony in their own behalf,” the judge said, “and explain doubtful matters peculiarly within their own knowledge, in these deportation cases, that fact may be commented on, and used to their disadvantage, possibly, for such fact may be considered by the court or commissioner, with all the evidence and circumstances of the case, and justify him in taking testimony they might have explained or denied, strongly against them.”⁴⁷ Nor could the accused claim the right to trial by jury.

Furthermore, under civil law, the standard of judgment was the preponderance of credible evidence, whereas in criminal cases judgment had to be beyond all reasonable doubt.⁴⁸ This effectively placed the burden of proof on the defendant rather than on the government; in theory, federal officials needed to do very little to win a deportation hearing. One case, United States v. Hung Chang, outlined just how little evidence the government needed to make its case. “No greater degree of proof,” the judge wrote, “is required on the part of the United States. It is not required to do more than satisfy the commissioner or judge, by affirmative proof, that the one under arrest is a person of Chinese descent. This does not mean to satisfy beyond any possibility of doubt, but only to a reasonable degree of certainty, such as a rational mind would demand in any serious matter of personal concern.”⁴⁹ If a Chinese defendant did not produce a preponderance of credible evidence that he or she was not deportable, the decision went in favor of the government.

In 1892, Congress had outlined two ways for Chinese defendants to meet their burden of proof. The easiest way was to present the certificate. In cases where a Chinese laborer had lost or never possessed a certificate of residence, Congress created a second process to prove legal residence: the testimony of at least one white witness.⁵⁰ Obtaining a white witness statement posed a serious problem for some Chinese immigrants. Tsui Kwo Yin, a member of the Chinese legation in the United States, described the challenges: a Chinese person must “find a white man who knew him on or before 1882. The laborer who is now in Washington City or Texas most likely lived in California in 1882. He must go to California and see if he can find a white man who knew him ten years ago and return with the evidence to the place where he now lives.” This was not a surprise to lawmakers framing the requirement; as Tsui Kwo Yin noted, “One of the Senators from Texas said that Chinese in his state would have to travel 500 miles to find a collector to give the certificate, and he would have to take a white witness with him.”⁵¹

In Fong Yue Ting, on behalf of Lee Joe, the Six Companies lawyers had challenged the white witness requirement, but the U.S. Supreme Court upheld it. The justices’ reasoning amounted to “not allowing such a fact [lawful residence] to be proved solely by the testimony of aliens in a like situation, or of the same race.” Justice Horace Gray, writing the decision, noted that this practice had “existed for seventy-seven years in the naturalization laws, by which aliens applying for naturalization must prove their residence within the limits and under the jurisdiction of the United States … by the oath or affirmation of citizens of the United States.”⁵² Gray’s wording seems to indicate that what was at the heart of the case was testimony from noncitizens; this was not what the white witness requirement addressed, because it equated whiteness with honesty and citizenship. The laws of Chinese exclusion did not call for a citizen to testify. They called for a white person to testify. Not all citizens were white and not all whites were citizens. And, it was not sufficient for a U.S. citizen of color to testify.⁵³ Justice Field dissented, writing, “Here the government undertakes to exact of the party arrested the testimony of a witness of a particular color, though conclusive and incontestable testimony from others may be adduced. The law might as well have said that unless the laborer should also present a particular person as a witness who could not be produced, from sickness, absence, or other cause … he should be held to be unlawfully within the United States.”⁵⁴

Over time, the lower courts further expanded on the legal justification for the white witness requirement.⁵⁵ The 1902 decision in United States v. Lee Huen in New York captures the ways courts tended to regard Chinese testimony: Judge George W. Ray of the U.S. District Court for the Northern District of New York declared that “the testimony of Chinese witnesses … may be regarded as more or less weak; and, when contradicted or really impeached in any of the modes suggested and recognized by our law, the commissioner is justified in regarding such testimony, standing alone, as insufficient to convince the judicial mind.”⁵⁶ Judge Ray stated that “it is common knowledge that enslaved peoples develop an inordinate propensity for lying, and this is characteristic of most oriental nations. This comes largely from their being subject to the caprice and exactions of their masters or superiors, and, having no sense of moral responsibility to them, they come to regard lying to them as no sin, and an habitual disregard of the truth is thus engendered.”⁵⁷ Accordingly, a white witness and Chinese witness might say the same thing, but the white person’s words held more legal weight.⁵⁸

While the appellants in Fong Yue Ting had failed in their appeal to the Supreme Court to shift the burden of proof in deportation cases from the defendant to the government or to overturn the one white witness requirement, over the next decade individual Chinese defendants used the appeals process to limit the effect of both. By 1901, Chinese defendants in districts like San Francisco were defeating deportation orders in as many as 90 percent of all cases. There were many defense strategies defendants used that explain these numbers. One of the most important, however, was that defendants appealed initial deportation orders decided by the U.S. commissioners to federal courts. Once there, federal judges tended to use the standards of evidence and rest the burden of proof as the courts did in criminal proceedings, rather than civil ones.⁵⁹ This made it easier for Chinese immigrants to argue their cases successfully. People of Chinese descent had great success overturning their deportation orders, because, through their appeals, the courts made the civil proceedings of Chinese exclusion more like criminal ones.

To the officials administering Chinese exclusion, the appeal rates in favor of Chinese defendants represented a policy failure. In 1901, Terence V. Powderly, the U.S. commissioner general of immigration, tried to do something about it. Steps taken by Powderly and his successor Frank P. Sargent would lead to more deportations, but they would not be as effective as later policy revisions. In the meantime, the round of revisions started with Powderly reifying the racial animus undergirding Chinese exclusion.

To Powderly, agents were not effectively using racial and cultural knowledge for Chinese exclusions when administering law. “The natural difficulties [in deporting under Chinese exclusion],” he wrote in a report to Congress, arose “from the apparent similarity, to those unfamiliar with the distinctive physical characteristics of the Mongolian, of all Chinese, from their totally different standards of morality, from their mental acuteness and ingenuity, and, worse than all, from their apparent ability at any time to command the use of considerable sums of money.”⁶⁰ Here he espoused much of the same logic behind Chinese exclusion in the first place as well as behind the white witness requirement. Powderly hoped that officials better versed in the anti-Chinese racial attitudes of the era could more effectively prosecute Chinese immigrants.

Powderly also hoped to make policy more effective by the further centralization and specialization of immigration authorities. The early legislation of Chinese exclusion did not make clear who was authorized to swear out the complaints that triggered deportations. The Geary Act, for instance, stated that Chinese laborers could be arrested upon a complaint filed “by any party on behalf of the United States.”⁶¹ Labor council operators and some private citizens accordingly swore out warrants against Chinese immigrants.⁶² Congress clarified jurisdiction in 1893: local and private citizens could not swear out warrants of arrest.⁶³ Yet, this clarification did not address the issue of divided enforcement within the federal bureaucracy. Congress assigned responsibility for swearing out complaints and arresting Chinese workers to officials within the U.S. Customs Service known as “Chinese inspectors” and U.S. attorneys.⁶⁴ Powderly believed that this was “productive of confusion and relatively ineffective administration of the laws.”⁶⁵ Powderly wanted Customs out of enforcement, because “[c]ollectors of customs are appointed primarily for the enforcement of customs laws. Their duties under the Chinese laws are additional thereto, and in many instances are regarded by them as merely subordinate to the former, if not occasionally rather in conflict with their interests as collectors of the ports.”⁶⁶ Instead, he wanted a more centralized force dedicated to immigration enforcement.

Congress responded to Powderly’s call for centralization by assigning most of the Chinese exclusion enforcement to the Bureau of Immigration in 1903, which had by then been developed to administer the immigration laws that applied to non-Chinese immigrants.⁶⁷ Immigration officers replaced customs officers at the ports. The voluminous records of Chinese exclusion, generated in large part by the issuance of certificates of entry and residence, were also transferred from the Internal Revenue Service to a central immigration office in Washington, D.C.⁶⁸

A key part of the Bureau of Immigration’s efforts to increase the efficacy of its enforcement of Chinese exclusion focused on increasing exclusion rates at major ports of entry. Under the new directives, the number of people admitted as Section 6 immigrants dropped over 60 percent at ports along the West Coast. (“Section 6” was popular shorthand for the portion of the Chinese Exclusion Act that defined as exempt teachers, students, merchants, and travelers, who could be admitted with the presentation of a certificate from the Chinese government.) To increase exclusion rates, officials turned the restrictionist law—one that allowed exempt classes—into one that operated more as a racial exclusion.⁶⁹

As the number of Chinese immigrants excluded at the western borders of the United States increased, Chinese immigrants started to enter the United States through other entry points. More immigrants moved to enter the United States through Canada or Mexico, where there were very few border inspectors. U.S. officials responded by creating new inspection points for Chinese inspectors in efforts to close off these new migration routes through the nation’s contiguous borders. This step pushed immigration routes farther east as Chinese immigrants tried to cross into the United States from Canada, beyond immigration inspection points in the West.⁷⁰

Even before the changes, deportations under Chinese exclusion had cost the government more than it wanted to spend. The government paid for the initial proceedings through a system of facilitative payments. At each step in their hearings, U.S. commissioners charged fees for their services.⁷¹ Between 1901 and 1906, for example, U.S. commissioners charged seventy-five cents for issuing a warrant of arrest; twenty-five cents for every subpoena issued to a witness; five cents for each subpoena for an additional witness; ten cents for administering an oath; and forty cents for providing copies of the warrant of arrest. During the actual hearing, the commissioner charged thirty cents for the first witness and five cents for each additional witness. In addition, each commissioner charged five dollars per day for his role in charging and “reducing the testimony to writing when required to by law or order of the court.”⁷² In 1896, for hearing the case of United States v. Charlie Oak, the U.S. commissioner for Arizona’s Third Judicial District charged a total of $7.80. In 2015 dollars, this came to around $220. In the case of United States v. Cheong Foung, heard in 1900, the same commissioner charged $7.60.⁷³ In 1909, the facilitative fees in the United States v. Sui Sing case totaled $8.30.⁷⁴ Then there were the expenses of the appeals, which were even higher because they took place in the federal courts.

After 1903, as more Chinese immigrants immigrated farther east, the cost of deportations from eastern regions of the country increased. A deportation from northern New York cost more than a deportation from San Francisco. In 1901, the government spent on average about $52 per deportee under Chinese exclusion. That year, the government deported a total of 328 Chinese aliens at a total cost of $46,940.22.⁷⁵ In 1903, the Bureau of Immigration deported a total of 704 Chinese immigrants, including 307 from the eastern region along its northern border, 228 from the western Canadian boundary region, and 138 from the Mexican boundary region. These deportations cost $80,375.45, about $65,000 of which went to deporting people from communities along the U.S.-Canada border—increasingly from communities in the East. This represented about 25 percent of the entire operating budget for all of Chinese exclusion.⁷⁶ In 1904, the government spent $75,536.10 deporting Chinese immigrants, at an average cost of $112.24 each.⁷⁷

In the first decade of the twentieth century, therefore, under Chinese exclusion much about deportation proceedings had been worked out. As a protection rather than a punishment, they fell under civil rather than criminal law. The distinction was an important one in terms of burden of proof, standards of evidence, and the rights of defendants, all of which favored the government over defendants. Policy makers had also included in the deportation proceedings of Chinese exclusion explicitly racialized legal practices. Lee Joe, one of the litigants in Fong Yue Ting, had faced one of these. He was ordered deported because he had not secured a white witness to prove his legal residence.

Officials administering Chinese exclusion, however, felt the deportation policy was not working. The deportations cost more than they wanted to spend. And, in spite of the civil status, and in spite of the racialized procedures, Chinese defendants were defeating deportation orders in some districts in as many as 90 percent of the cases.⁷⁸ By the turn of the century, immigration officers were puzzling out ways to better realize the racial goal of the policy—to deport more Chinese immigrants—by restoring the civil nature of proceedings. Their early efforts centralized enforcement. In 1909, immigration authorities tried a new strategy, which relied on the general deportation policy that applied to all non-Chinese immigrants.

Deportation Proceedings Under General Immigration Policy

Congress and immigration officials built a policy to deport other immigrants that ran parallel to Chinese exclusion. To do so, they developed a list of qualitative deportable categories that applied to immigrants from everywhere else.⁷⁹ The deportation proceedings established to administer these categories differed from the deportation proceedings under Chinese exclusion. Most notably, immigrants processed under general immigration law had very limited access to the federal courts in their appeals. Yet, unlike Chinese exclusion, deportation policy under general immigration law did not have such specific provisions as the white witness requirement, nor was it as broad, and it contained protections for immigrants not allowed under the laws of Chinese exclusion.

An important starting point in the history of deportations under general immigration policy came in 1885, in a law known as the Foran Act, which did not actually contain a deportation provision.⁸⁰ Much of the support for this law came out of the ways white working-class Americans understood free labor, rights of contract, and immigration. As more Americans began working for wages after the Civil War, union organizers increasingly criticized the notion of “freedom of contract,” the idea that a worker was not only an equal participant in making a contract with an employer, but that the ability to contract at all made him free. White unions argued that employers had so much more power than individual workers that the bargaining process was subject to considerable coercion; coercive contracts, in turn, made white American workers “unfree.”⁸¹ U.S. labor leaders saw union representation in negotiations as a way to make contracts fairer, and they saw immigrant labor contracts as a threat to their ability to bargain with employers. To them, foreign laborers of any ethnicity who signed contracts abroad were unfree—and the contracts foreign workers signed with American employers were more coercive than contracts signed in the United States. Competition with unfree labor, labor organizers claimed, would inevitably enslave white working Americans, making the United States a nation of unfree men unfit to participate in a democracy.

Figure 1. Bureau of Immigration’s depiction of immigration patterns contained in the commissioner general’s annual report of 1904. “Immigration into the United States from the Different Countries and Total from All Countries, During the Past 84 Years,” AR-CGI (1904).

Labor organizers had included some of these ideas about contract and free labor in their campaign for the passage of Chinese exclusion, and in 1884 they were using them to lobby for a law that applied to contract workers. In 1884, for example, Terence Powderly, head of the Knights of Labor and soon to be head of the Bureau of Immigration, spoke out against a group of Hungarian contract workers. “They work for little or nothing,” Powderly said, “[they] live on a fare which a Chinaman would not touch, and [they] will submit to any and every indignity which may be imposed upon them.… I believe this country was intended for a race of freemen and, believing that, I will always oppose the introduction of such men as are not capable of enjoying, defending and perpetuating the blessings of good government.”⁸² Here, those fighting to limit immigration of contract laborers used the rhetoric of national protection to justify the development of another immigrant exclusion.

Congress was unwilling to pass legislation to support bread-and-butter union issues such as the closed shop and collective bargaining, but it did support organized labor’s position on foreign workers.⁸³ In 1885 it passed the Foran Act, which forbade all foreign workers under contract from immigrating to the United States.⁸⁴ Under its terms, a foreigner could not, while still abroad, sign a contract to work for an employer in the United States.⁸⁵

An amendment transformed the Foran Act into the basis on which immigrants from all racial, ethnic, and national categories became deportable. Immediately after the passage of the act, U.S. customs officers charged with administering the law began to report that they found it almost impossible to identify and exclude contract laborers at the borders. The act contained so few provisions for enforcement that Congress quickly passed several amendments to rectify its perceived shortcomings.⁸⁶ The original law prohibited only the entrance of contract workers; agents had no power to remove contract laborers who evaded exclusion at the borders. Congress added a deportation provision in 1888.

Congress expanded the government’s power to deport immigrants beyond contract laborers in 1891. Back in 1882, the same year it passed the law authorizing deportations under Chinese exclusion, Congress passed another immigration law that applied to all other immigrants. This law created excludable classes, including criminals and paupers—people who could not lawfully enter the United States. This law, however, did not link the excludable categories with a deportation provision. If criminals or paupers made it into the United States, immigration authorities had no mechanism to deport them. In 1891, Congress passed an immigration law that linked each category with a deportation provision.⁸⁷ From then on, all the existing categories of excludable immigrants, ranging from “idiots,” the “insane,” “paupers,” “polygamists,” “persons liable to become a public charge,” people convicted of a felony or other crime or misdemeanor involving “moral turpitude,” to sufferers “from a loathsome or dangerous” contagious disease, were all deportable.⁸⁸ This law enforced exclusions only—it dealt with people who entered the country who should have been excluded in the first place.

It is not explicit in the records why, but policy makers made deportation proceedings of general immigration law different from those under Chinese exclusion. Under general immigration law, the Board of Special Inquiry, the three-member panel of executive officers, held a deportation hearing. This was solely an administrative hearing. If the board found an immigrant lawfully resident in the United States, it canceled the warrant of arrest. If the board found the immigrant in violation of immigration laws, the agent assigned to the case applied to the commissioner general of immigration for a warrant of deportation.⁸⁹ Here, the government had expanded the plenary power—courts did not have the power to review these deportation decisions. These proceedings were less expensive, they did not operate on facilitative payments, and immigrants had fewer rights to appeal to the federal courts. Immigrants could appeal a case to the federal courts only if they asked a new legal question, such as the constitutionality of a law.

In 1903, Kaoru Yamataya, a sixteen-year-old from Japan, appealed her deportation under general immigration policy to the U.S. Supreme Court in Yamataya v. Fisher (also known as the Japanese Immigrant Case).⁹⁰ Yamataya had landed at Seattle on July 11, 1901. Four days later, immigration authorities arrested her on the grounds that she had entered the country surreptitiously and was likely to become a public charge—a deportable category under general immigration law—though she had come to stay with her uncle. Ten days after Yamataya’s arrest, immigration officers convened a Board of Special Inquiry to hear her case. The three immigration agents, none of whom was a judicial officer, held the hearing in English, which Yamataya could not understand. The board found Yamataya deportable.⁹¹ Yamataya appealed her deportation decision through the lower federal courts and then on to the Supreme Court. When in front of the Supreme Court, Yamataya posed several questions that cumulatively asked: were the deportation proceedings of general immigration policy legal?

Yamataya’s case to the Supreme Court, argued by lawyer Harold Preston, included two key arguments about the nature of due process under general immigration deportations. First, Preston argued that, since the Immigration Act of 1891 did not explicitly provide for due process, the act was unconstitutional.⁹² Second, Preston contended that even if the Court found that general immigration policy was consistent with Fifth Amendment due process rights in civil cases, immigration agents had denied them to Yamataya. The evidence used against Yamataya, as Preston described it, was “garbled, incomplete, and in many respects misleading and untrue.”⁹³ Furthermore, Yamataya’s hearing had been conducted in English, and the investigation was carried out without her having access to legal counsel or the chance to show she was not likely to become a public charge.⁹⁴

The Supreme Court dismissed Yamataya’s appeal and upheld the basic scope of the government’s deportation policy under general immigration law. Addressing her lawyer’s arguments about due process, the Court upheld the general immigration law in spite of its lack of explicit provisions for due process consistent with the Fifth Amendment. Justice John Marshall Harlan, writing for the Court, held that an act of Congress “must be taken to be constitutional unless the contrary plainly and palpably appears.”⁹⁵

The Court also dismissed part of Yamataya’s argument that challenged the appeals process under general immigration policy. The Immigration Act of 1891 stated that immigrants could appeal the Board of Special Inquiry’s decision to the U.S. secretary of labor, whose decision was final and not reviewable in the courts.⁹⁶ Preston argued that in deportations under general immigration law, the courts should have the authority to review the labor secretary’s decision. The Court disagreed, ruling that, because deportations fell within the plenary power of the federal executive and legislature, investigations and actions of the executive officers in the deportation process were not “subject to judicial review.”⁹⁷

At the same time the Court upheld the appeals process under general immigration law, however, the Court created in Yamataya a backdoor appeals process to the federal courts—called a procedural challenge.⁹⁸ The Court ruled that while immigrants could not challenge the outcome of deportation hearings, they could challenge the legitimacy of the procedures. The Court added that administrative officers could not “disregard the fundamental principles that inhere in due process of law as understood at the time of the adoption of the Constitution.”⁹⁹ If officers “disregarded” due process, immigrants could make a procedural challenge to the courts.

Just what the legitimacy of procedures looked like was the next question. One of the procedures that ordinarily made immigration decisions consistent with Fifth Amendment due process was the holding of a hearing. When describing it, Justice Harlan wrote, “no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends—not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act.”¹⁰⁰ In Yamataya’s case, the Court found that her executive hearing in front of immigration agents met the standard of due process. “[T]he decisions of executive or administrative officers, acting within powers expressly conferred by Congress,” the Court asserted, “are due process of law.”¹⁰¹

One point the Court made in the Yamataya decision about procedural challenges was that a hearing in a language that the immigrant could not understand did not represent a procedural challenge. Part of Yamataya’s due process argument turned on the fact that her hearing had been conducted in English. Yet, the Court had no problem with the fact that Yamataya did not understand the proceedings against her. “If the appellant’s want of knowledge of the English language,” Justice Harlan wrote, “put her at some disadvantage in the investigation conducted by that officer, that was her misfortune, and constitutes no reason … for the intervention of the court by habeas corpus.”¹⁰² In other words, a hearing that an immigrant could not understand was consistent with Fifth Amendment due process standards.¹⁰³

This appeals process under general immigration policy in action, even with the addition of the ability to make procedural challenges created in Yamataya, seldom worked in an immigrant’s favor and so had very little impact on the overall rate of deportations, which remained quite high. In 1913, for example, the New York district reported that it had held over 1,100 deportation hearings under general immigration law and ordered deportations in about 90 percent of the cases.¹⁰⁴

Despite the low numbers of successful appeals, in these early decades of operating its power to deport under general immigration policy, the government only deported a few hundred to a few thousand people a year—during periods when as many as one million people annually immigrated to the United States. That there were not many deportable people in the United States was one of the most important reasons for the low deportation numbers. Except for people from China, almost everyone could immigrate lawfully.¹⁰⁵ Another, related reason for the low deportation numbers was the way that time limits “legalized” those who entered the country in violation of immigration law.¹⁰⁶ Congress built a one-year time limit into its deportation provisions in 1891, though it revised that limit in 1903, 1907, and 1917, eventually extending it to one to five years.¹⁰⁷ Except for people from China, if an immigrant moved to the United States in violation of an immigrant exclusion, law protected him or her from deportability after a few years of residency in the United States.

By 1904, then, the proceedings under general immigration law were defined in large part by the appeal process. Under general immigration law a deportation appeal went to the secretary of commerce and labor and not to the federal courts (unless the immigrant had a procedural challenge or a constitutional challenge).¹⁰⁸ The difference between a procedural and substantive claim was important to taking a case to the federal courts. A procedural challenge under general immigration law was limited to asking if the immigrant had had a hearing or not. Insufficient evidence was not a claim the courts generally accepted. Matters of fact and the issue of whether the decision itself was justifiable could not be questioned.¹⁰⁹

Folding Chinese Exclusion into General Immigration Policy

After decades of administering two parallel deportation policies, in their efforts to carry out more deportations of people of Chinese descent, immigration officers turned to a strategy of arresting Chinese immigrants under general immigration policy. As the Bureau of Immigration’s Annual Report recorded in 1912, the “Chinese who might enter the United States in violation of law should be dealt with precisely as were the members of other races charged with the same offense.” The report continued, “all Chinese charged with surreptitious entry should have their right to be and remain in the United States determined by the Department warrant of arrest procedure, rather than by the long drawn out and expensive judicial hearing process.”¹¹⁰ The new enforcement strategy, immigration agents hoped, would put a stop to the ways Chinese immigrants had been using the federal courts so effectively to overturn many deportations. Part of the government’s strategy first depended on finding a way around the explicit racial category established in the Chinese exclusion laws.

In 1909, immigration officials took their first steps to what would, just a few years later, lead them to fold Chinese exclusion into general immigration policy when they arrested four Chinese immigrants under general immigration law rather than the laws of Chinese exclusion.¹¹¹ A man named Wong You was one of the four. Officials charged Wong on the grounds that he had entered the United States without inspection—a provision of general immigration law—crossing the U.S.-Canada border near Malone, New York. Officials then processed Wong under deportation proceedings of general immigration policy. The Board of Special Inquiry found against him and ordered Wong’s deportation. Technically, he was charged with violating the Immigration Act of 1907, for entering the United States surreptitiously.¹¹²

Wong You hired a lawyer and appealed his case and asked the federal courts the new legal question about the jurisdiction of Chinese exclusion and general immigration law. His case hinged on the fact that Congress designed the Immigration Act of 1891 to regulate “immigration, other than those concerning Chinese Laborers.”¹¹³ In 1893, in a revision to the general immigration law, Congress reasserted this division by adding the phrase “that this act shall not apply to Chinese Persons.”¹¹⁴ Wong’s lawyers argued that since he was Chinese, he could only be deported under the procedures of Chinese exclusion. Wong You’s legal strategy, therefore, attempted to use the ways that immigration law constructed a racial class. In doing so, Wong and his lawyers hoped to protect Chinese immigrants’ appeals to the federal courts.

Wong’s lawyers attacked the new enforcement strategy in the lower courts. At the first stage of the appeal in the federal courts, Wong lost. George W. Ray, the judge in the federal court for the Northern District of New York, sustained the government’s case. Wong and his lawyers then appealed the case to the circuit court of appeals, which reversed the lower court’s decision, holding that Chinese laborers could be processed only under the Chinese exclusion laws.¹¹⁵

Immigration officials, whose efforts were made more determined by what they understood as a growing Chinese immigration crisis across their borders, appealed Wong’s victory to the Supreme Court. “The importance of securing a decision favorable [in Wong You] to the Government,” the then–commissioner general of the Bureau of Immigration Daniel Keefe wrote, “is well illustrated by the statement in the report of the United States commissioner of immigration for Canada.” Just the year before Wong You reached the Supreme Court, therefore, immigration authorities worried that Chinese immigration through Canada as well as Mexico would “constantly increase in the future” unless they took steps to overhaul deportations of Chinese immigrants.¹¹⁶ Closing access to the courts and processing Chinese immigrants under general immigration policy were important steps they took.

In 1912, three years after Wong You’s arrest, his case, United States v. Wong You, reached the nation’s highest court. On one side of the courtroom, Wong You’s lawyers argued that Chinese immigrants could not be arrested under general immigration laws. If successful, Wong You’s lawyers would keep all Chinese deportation cases out of general immigration deportation proceedings where it was much harder to win an appeal. On the other side of the courtroom stood counsel for immigration authorities. They wanted this Supreme Court victory, because, if successful, they could continue what they started in Wong You’s arrest—limiting judicial review to Chinese immigrants.

The Supreme Court ruled in favor of the government. Justice Oliver Wendell Holmes, writing for the Court, found that, while Chinese immigrants “were tacitly excepted from the general provisions of the immigration act,” the law was “broad enough to include them.” Holmes wrote, “It seems to us unwarranted to except the Chinese from this liability [just] because there is an earlier more cumbrous proceeding which this partially overlaps. The existence of the earlier laws only indicates the special solicitude of the Government to limit the entrance of Chinese. It is the very reverse of a reason for denying to the Government a better remedy against them alone of all the world.… The present act does not contain the clause found in the previous immigration act of March 3, 1893, … that it shall not apply to Chinese persons.”¹¹⁷

After Wong You, the Bureau of Immigration began instructing its agents to arrest and deport Chinese immigrants under general immigration laws in every case possible; deportation numbers dramatically increased. The supervising inspector for immigration in District 23, which enforced the U.S.-Mexico border, noted a spike in the number of Chinese immigrants actually deported. “Formerly,” he wrote, “owing to the difficulty of presenting to the courts sufficiently convincing proof of illegal entry, it was impossible to secure deportation of such Chinese unless they were actually apprehended in the act of crossing the boundary.”¹¹⁸ In 1914, immigration agents along that border tried to deport 1,090 Chinese immigrants, serving 224 warrants under Chinese exclusion laws and 866 warrants under general immigration laws. By the end of the year, immigration officers had successfully deported 899 of the 1,090 arrested. Seven of the 191 who had not been deported were awaiting deportation and 116 cases were still pending.¹¹⁹

One immigration district noted that Chinese immigrants unsuccessfully attempted to bring the judicial standards back into the proceedings. The inspector from the New York district reported that “sometimes the conduct of the hearing is simple, but often it is complicated, partly through the efforts of counsel of the alien to treat it as a judicial trial, whereas, in fact, it is merely an executive hearing, and to introduce matter which is irrelevant or inconclusive upon the only issue, which is whether the alien should be deported.”¹²⁰

While processing as many Chinese immigrants under general immigration proceedings as possible, U.S. immigration authorities continued to use the Chinese exclusion proceedings. This was because general immigration law contained time limits: immigrants could be deported only within one to five years of their entry into the United States, depending on the deportation provision. The only exception was the antiprostitution provision. Determined not to open the protection of time limits to Chinese immigrants, officials for a time operated both deportation policies when arresting Chinese immigrants. Immigration officers used general immigration laws in cases where they could prove that a Chinese immigrant had entered the United States within the time limit.¹²¹ In 1914, the department for the Mexican district explained that it went forward in a number of cases under Chinese exclusion laws because it had been “impossible to establish entry within three years.”¹²² In those deportations explicitly under Chinese exclusion, judicial review still remained open.

Other immigration districts reported their strategic use of both general immigration proceedings and those under Chinese exclusion to effect higher rates of Chinese deportations. In 1913, the New York district reported that it had held over 1,100 deportation hearings under general immigration law and ordered deportations in about 90 percent of the cases.¹²³ In 1914, the San Francisco district reported handling 414 such cases, a 300 percent increase over the year before.¹²⁴ The Chicago district had dramatic increases in 1914 as well.¹²⁵ While the number of Chinese deported under general immigration laws rose, the number deported under Chinese exclusion laws fell. By 1916, Chicago officials used the general immigration laws almost exclusively to deport Chinese. They arrested 233 Chinese under general immigration laws and only 23 under Chinese exclusion laws.¹²⁶ In 1918, the El Paso office reported that only 8 Chinese had been arrested under exclusion laws, while 132 Chinese cases were handled under general immigration laws.¹²⁷ In 1914, the U.S. government deported a total of 131 Chinese under Chinese exclusion laws. In 1915, it deported 119; in 1916, 104; and in 1917, only 69.¹²⁸

In 1917, the government completed the process that Bureau of Immigration officials had begun with Wong You’s arrest via changes to the Immigration Act. Section 19 of the Immigration Act of 1917 provided that “any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States … shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.”¹²⁹ Here, administrators put a stop to the remaining ways Chinese exclusion overlapped with the criminal justice system. They had taken Chinese exclusion largely out of the judicial system, making it almost entirely a separate administrative law. Hereafter, all immigrants would be processed under what immigration officials called general warrant proceedings of general immigration policy; there would be no more access to the judiciary in the appeals process, except for new legal questions and for procedural challenges.

The Supreme Court endorsed the federal government’s power to deport in Fong Yue Ting in 1893, designating deportation as a power protective of the nation, rather than as a punishment for individuals. This set in motion an evolving national logic to deportation policy. With this designation, the Court made clear deportation proceedings were to be different from criminal trials, which limited the constitutional protections (particularly those of the Fourth, Fifth, and Sixth Amendments) available to people in deportation proceedings.

The appeals process under Chinese exclusion for many years, however, shared some procedures with criminal proceedings. The deportation policy that applied to all other nationalities did not, and that fact made it easier for immigration authorities to deport people under general immigration policy. By 1917, Congress folded the deportation proceedings of Chinese exclusion into general immigration policy, which was more efficient and led to higher deportation rates. In the process, the government streamlined its policy, making all deportation proceedings mostly administrative procedures and placing the burden of proof largely on the immigrant, who had few recourses of appeal.

At the same time that U.S. judges, politicians, and administrators were developing a national deportation policy, an international logic of deportation was emerging. The international context, which was set both in the sending and the receiving of deportees, set parameters on the U.S. government’s power to deport.