Immigration Stories: The more things change, the more they stay the same

I recently had a chance to read a book that I’ve been wanting to dive into for years. Immigration Stories, edited by David A. Martin and Peter H. Schuck, is part of the Stories Series, which relates the political and historical context behind some of the more important case law in a variety of different legal subject areas. The immigration law volume is a compilation of essays that each reveal the human beings involved in fifteen landmark U.S. immigration cases — both the noncitizens whose fates were at stake, as well as the attorneys and advocates working on their behalf. For anyone following the immigration debate in the United States in recent years, the essays, fascinating in their own right, also demonstrate that history does indeed repeat itself.

ImmStoriescover Take, for instance, the first chapter, which discusses the landmark cases Chae Chan Ping v. U.S. (1889) and Fong Yue Ting v. U.S. (1893). Gabriel J. Chin describes the country’s growing racist attitudes toward the Chinese laborers who arrived in the U.S. in droves to take part in the California gold rush. They were often willing to work for significantly lower wages in whatever jobs they could find, in order to send money home to their families abroad and repay the loans they had taken from Chinese merchants to finance their travel to the United States. Non-Chinese laborers resented them, and the economic downturn in California in the mid-1870s led to a push for restrictions on the immigration of Chinese laborers. In addition, xenophobic attitudes led to rumors that Chinese immigrant communities were hotbeds of criminal activity, such as prostitution and opium smoking.

Growing anxiety over Chinese migrants eventually resulted in the country’s first law controlling immigration, the Chinese Exclusion Act of 1882, and several subsequent extensions, which severely restricted the ability of Chinese citizens to enter the U.S. and codified the prohibition on naturalization of Chinese individuals. In essence, the Chinese were scapegoated for the economic troubles of the United States. Reading this chapter, the reasons for restricting immigration against an “undesirable” class sound strikingly familiar. The myth that “illegal immigrants” steal American jobs and lower Americans’ wages persists to this day, though generally in relation to undocumented workers from Mexico and Central America rather than from Asia. And xenophobic stereotypes of undocumented migrants being drug smugglers and rapists are still perpetuated by politicians and used to fuel anti-immigrant opposition to comprehensive immigration reform efforts.

The book’s third chapter addresses another issue that continues to make headlines today. Lucy E. Salyer delves into the history behind U.S. v. Wong Kim Ark (1897), in which the Supreme Court tackled the concept of birthright citizenship in the United States. In the wake of the Civil War, Congress added the Fourteenth Amendment to the Constitution, which provided the first explicit definition of U.S. citizenship in the nation’s history: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Though, as Salyer notes, this is a “seemingly unequivocal statement,” exclusionists worked together in an attempt to deny Chinese Americans their birthright citizenship claims. Many Americans at the time continued to believe that Chinese were so fundamentally different from Americans that they would never be able to assimilate into the U.S. and believed “that such persons are utterly unfit, wholly incompetent, to exercise the important privileges of an American citizen,” in the words of lawyer George D. Collins.

Wong Kim Ark's travel documents

Sworn statement of witnesses verifying Wong Kim Ark’s departure from San Francisco.

Born in San Francisco, Wong Kim Ark was denied admission into the United States upon his return from a trip to China because port officials did not believe that his birth in the U.S. made him a citizen. Eventually the Supreme Court ruled in favor of Wong Kim Ark and upheld the long-standing tradition of birthright citizenship in the United States. In addition to worrying that denying Wong Kim Ark’s citizenship would lead to denials of citizenship for thousands of other Americans of European descent, the Court held that birthright citizenship had been the common law of the United States since inception and was far too well-established to be abandoned now.

Although this case was decided over a century ago, restrictionists continue to advocate for the elimination of birthright citizenship today. A group of undocumented Mexican mothers were forced to sue the state of Texas just this summer, after officials refused to issue birth certificates to their U.S.-born children. Republican lawmakers continue to introduce (and reintroduce) the Birthright Citizenship Act in Congress, in an attempt to restrict citizenship to children born to at least one parent who is a U.S. citizen, lawful permanent resident, or on active duty in the U.S. Armed Forces. And as recently as April 2015, the House Judiciary Committee hosted a hearing entitled “Birthright Citizenship: Is It the Right Policy for America?” All this, despite numerous studies demonstrating how catastrophic such an “unprecedented” policy change would be for the new permanent underclass of noncitizens it would create.

Other chapters in the book recount stories that bring to mind the flood of women and unaccompanied children escaping violence in Central America in recent years. Kevin R. Johnson’s essay on the case of Landon v. Plasencia (1982) includes an introduction about the political violence and civil wars ravaging Central America in the 1970s and 1980s, leading thousands to flee their home countries and seek refuge in the United States. Much like the attempts to deter the Central American women and children of the present through increased detention and reducing asylum protections, Johnson reports that the former Immigration and Naturalization Service (INS) “adopted a policy of mass detention of Central Americans pending decisions on their asylum applications, hoping to discourage asylum seekers from pursuing their claims and instead to ‘voluntarily’ return to their native countries.” Advocates in 1985 sued the U.S. government for unfairly denying the asylum claims of many Salvadorans and Guatemalans based on foreign policy considerations, rather than the merits of their individual cases. Similarly, today’s advocates claimed victory in a class action lawsuit earlier this year, when a federal appeals court ruled that the government cannot detain families solely “for the purpose of deterring future immigration to the United States.” And the fraudulent asylum claim brought by Ghanian Adelaide Abankwah, discussed in a separate chapter by David A. Martin, highlights the worst fears of immigration opponents who allege that a high percentage of supposed asylum-seekers in recent years have actually been abusing the U.S. asylum system.

In the book’s final chapter, Margaret H. Taylor explains the enormous impact that the events of September 11, 2001 had on U.S. immigration policy while telling the story of Demore v. Kim (2003). Due to amendments to the Immigration and Nationality Act (INA) passed by Congress in 1996, lawful permanent resident Hyung Joon Kim was subject to mandatory detention after a few minor criminal convictions when he was a teenager, despite his strong ties to the U.S. and the INS’s own determination that he would not pose a threat if released on bond. Notwithstanding prior precedent decisions requiring that individual determinations be made before holding noncitizens, particularly lawful permanent residents, in immigration detention, the Supreme Court in Demore rejected Kim’s due process arguments and upheld mandatory detention without bond for noncitizens with criminal convictions. This was largely due to the Court’s reluctance, post-9/11, to weaken the government’s ability to detain noncitizens perceived as threats—as Taylor writes, “[i]t is the historical context of Demore v. Kim, rather than [the] Court’s analysis of precedent, that explains the outcome.” This is but one example of the tendency of U.S. immigration policy to be shaped as a reaction (or overreaction) to acts of terrorism. More recently, inquiries about the immigration status of the Boston Marathon bombers threatened to derail the Senate’s attempt to pass comprehensive immigration reform legislation in 2013. And this summer, Republican politicians like Senator Rand Paul, Senator Ted Cruz, and Louisiana Governor Bobby Jindal (all of whom are running for President in 2016) have called for restrictions on immigration from predominantly Muslim countries in the wake of the recent Chattanooga shooting spree.

Immigration Stories was a very engaging read overall, which I would recommend to anyone looking to learn more about the history of U.S. immigration laws and policies. Someday, I would love to see an updated edition, or perhaps a sequel, taking on more recent cases like Padilla v. Kentucky (2010) and its mandate that criminal defense attorneys advise noncitizen clients about potential deportation risks, the saga of Matter of Silva-Trevino’s categorical approach to analyzing the immigration consequences of criminal convictions, Arizona v. U.S. (2012) and its overturning of Arizona’s attempt to enact its own immigration laws, and many others certain to come in the future. While it can be disheartening to realize that many of the same immigration battles are being refought throughout American history, learning about the politics, litigation strategies, and human stories behind these and other landmark cases was certainly instructive. Given the recurring nature of so many issues in the ongoing U.S. immigration debate, an in-depth understanding of the tactics of both sides in the past will likely prove valuable in the future.

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2 comments

  1. […] economic recession of American history. This may sound familiar — as my colleague Stacy Jones recently wrote, “The myth that ‘illegal immigrants’ steal American jobs and lower Americans’ wages […]

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  2. […] Jones – In addition to Immigration Stories, I finally read Zadie Smith’s acclaimed 2000 novel White Teeth this summer and wondered why it […]

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