Immigration Exclusion Déjà vu By Siqin Wang

Immigration Exclusion  Déjà vu

By

Siqin Wang

Republican presidential front-runner Donald Trump called for a total and complete shutdown of Muslims entering the United States until the country’s representatives can “figure out what is going on.”[1] The controversial ban proposed by Trump would apply “not just to Muslim foreigners looking to immigrate to the U.S., but also to Muslims looking to visit the U.S. as tourists.”[2] Trump’s proposal to exclude a class of people based on their religion is nothing more than putting new wine in old bottles—the rhetoric surrounding exclusionary immigration measures based on religion or national origin has been sporadically spread through American history.[3] This dangerous proposal is only a first cousin to one of the most significant and shameful discriminatory acts in American history—The Chinese Exclusion Act of 1882.[4]

In 1882, one of the most significant restrictions on free immigration in the US history—The Chinese Exclusion Act—was passed.[5] The act, persisting for 60 years together with later more restrictive immigration acts, continuously excluded all ethnic Chinese persons and those arriving from a defined “Asiatic Barred Zone.”[6] Although the reasons for the 19th century’s Chinese-exclusion policy and the proposal for a 21st century anti-Muslim policy are not substantially the same, the analysis of the former can help better understand the latter. The hatred against Chinese people behind the exclusion act was threefold.[7] Economically, Industrialists’ enthusiastic welcome of Chinese labor increased American labor’s antipathy toward the Chinese, and the fear of losing jobs and opportunities attracted middle- as well as working-class Americans to the campaign of restriction.[8] Racial anxieties also played an important role in the passing of the act.[9] American’s sense of racial superiority and the prevailing mistaken concept of the “coolie trade” as a “modern system of slavery”  supposedly justified the exclusion.[10] Finally, the insurmountable cultural differences boosted the finalization of the act.[11] The belief that Chinese were biologically incapable of being assimilated into the American way of life, and therefore posed a serious threat to American institution, exacerbated the agitation.[12] While Trump’s main theory of Muslim exclusion was based on concerns of terrorism, arguably it is really just rhetoric that tied national security with religious discrimination.[13] Isn’t it the same act of vilifying entire group of people because it is politically or economically expedient?[14] The proposal simply projects the hatred and fear towards certain groups of Islamic extremists to the entire Muslim population. Refined and backup by the sensational reasons, this dangerous proposal worked its way through the national primaries of 2015-16 and has won tremendous supports from a portion of the Republican voting base.[15] The concern that this discriminatory proposal will come into being as a dormant monster rewoken is not completely unrealistic.[16] No matter whether the proposed Muslim-exclusion policy can be justified, the final issue is whether there is any legal resort for Muslims to challenge the decision of exclusion.

Historically, the U.S. Supreme Court has taken a hands-off approach when the political branche’s immigration decisions and policymaking are in question.[17] The plenary power of the political branch over immigration issues refers to the ability of Congress and the executive branch to regulate immigration largely without judicial intervention.[18] The court has based its attitude towards immigration issue on political-question doctrine, lack of capacity, uniformity, and efficiency.[19] The Supreme Court further recognizes the inherent federal power to prohibit the entry into its territories of the people of foreign states.[20]  In Chae Chan Ping v. United States, the Court held that the government which exercised for protection and security is clothed with authority to determine who to enter the country, and its determination is conclusive on the judiciary.[21] Due Process rights are a dead end for non-citizens who are declined entry.[22] According, the Court in Nishimura Ekiu v. United States, “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.[23] Even in a case of American citizens, because exclusion is treated by the Supreme Court as an administrative procedure, the exclusion is not in violation of Due Process as long as the determination of exclusion is not manifestly unfair.[24] With the plenary power of the government, judicial review is not really a solution to the exclusion policy. Although in Nguyen v. INS, the Supreme Court’s reasoning signals a possible retreat from the plenary power justifications for non-action, it did not affirmatively recognize that judicial review can override plenary power. [25] In another case, Zadvydas v. INS, the Supreme Court arguably took a step closer to abandoning plenary power, but the holding was limited in scope and legislation that came about as a result of the 9/11 attacks reinvigorated the plenary power doctrine.[26] Most importantly, in Zadvyda the Court explicitly stated terrorism or other special circumstances can be a valid argument for heightened deference to the judgments of the political branches with respect to matters of national security.[27] As long as the plenary power doctrine rules over the issue of immigration exclusion, Due Process and Equal Protection arguments are not as powerful in this area as for example, in the civil rights context.

Conclusion

“The great thing about humanity is that we have the opportunity to learn from our mistakes.”[28] 130 years after the passage of the Chinese Exclusion Act, Congress passed two bills expressing regret for the persecution and suffering of Chinese-Americans.[29] In 2014, the California Legislature further passed measures that formally recognize the many proud accomplishments of Chinese-Americans in California and apologize to the families that were split-up by the exclusion act.[30] 130 years it takes for people to recognize their mistake. Hopefully, 130 years from now Congress will not be making a similar apology, not to Southeast Asians, but Muslims excluded under a new wave of xenophobia.

[1] Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (December 8, 2015), http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/

[2] Id.

[3] Yanan Wang, Muslims are to Trump as the Chinese were to President Arthur in 1882, The Wash. Post (Dec. 8, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/12/08/muslims-are-to-trump-as-the-chinese-were-to-president-arthur-in-1882/

[4] 158 Cong. Rec. H 3715, 3715 (2012).

[5] Id.

[6] Yanan Wang, supra note 3 “The Immigration Acts of 1917 and 1924 excluded all classes of ethnic Chinese and further banned all visa types for arrivals from a defined ‘Asiatic Barred Zone’ which included India, Afghanistan, Persia (modern-day Iran), Arabia, Southeast Asia, the Asian-Pacific Islands as well as parts of the Ottoman Empire and Russia.”

[7] See Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law, 10-12 (1995).

[8] Id. at 10.

[9] Yanan Wang, supra note 3; see Allegra M. McLeod, The U.S. Criminal-Immigration Convergence and Its Possible Undoing, 49 Am. Crim. L. Rev. 105 (2012).

[10] Lucy E. Salyer, supra note 7, at 10-11 (Under coolie system, ).

[11] Id. at 11.

[12] Id.

[13] Yannan Wang, supra note 3; see also, Christopher Woolf, Long before anxiety about Muslims, Americans feared the ‘yellow peril’ of Chinese immigration, PRI (Dec. 9, 2015), http://www.pri.org/stories/2015-12-09/long-anxiety-about-muslims-americans-feared-yellow-peril-chinese-immigration.

[14] 158 Cong Rec H 3715, 3718 (Mr. HONDA expressing that the passage of anti-Chinese laws illustrates the xenophobic hysteria of this country’s shameful chapter of exclusion and we cannot vilify entire groups of people because it is politically or economically expedient).

[15] Scott Clement, Republicans embrace Trump’s ban on Muslims while most others reject it, The Wash. Post (December 14, 2015), https://www.washingtonpost.com/politics/americans-reject-trumps-muslim-ban-but-republicans-embrace-it/2015/12/14/24f1c1a0-a285-11e5-9c4e-be37f66848bb_story.html.

 

[16] See Id.

[17] Jon Feere, Plenary Power: Should Judges Control U.S. Immigration Policy? The Center For Immigration Studies (February 2009) http://www.cis.org/sites/cis.org/files/articles/2009/back209.pdf

[18] Id.

[19] Id.

[20] See Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889).

[21] Id. at 606.

[22] See Jon Feere, supra note 17, at 9-10.

[23] Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).

[24] See Kwock Jan Fat v. White, 253 U.S. 454 (1912).

[25] See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001) (holding that statutes making it more difficult for children born abroad and out of wedlock to a United States citizen to claim citizenship through that parent if the citizen-parent was male did not violate the Equal Protection guarantee of the Fifth Amendment). Instead of deferring to governmental power on the issue of immigration policy making, the Court applied the standard Equal Protection analysis for gender-based classifications, without any alteration of the test to account for the immigration context, and found the measure “substantially related to the achievement of [important governmental] objectives.” Id.;see also Peter J. Spiro, Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339 (2002).

[26] See Zadvydas v. Davis, 533 U.S. 678 (2001) (overturning the indefinite detention of removable aliens whose homelands would not accept their repatriation);see also Jon Feere, supra note 17, at 10; Peter J. Spiro, supra note 25, at 343.

[27] Zadvydas, 533 U.S. at 697.

[28] 158 Cong. Rec. H 3715, 3718.

[29] Id.

[30]  Legis. Bill Hist. CA S.J.R. 23 (2013).

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