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Paper Families Identity, Immigration Administration, and Chinese Exclusion
By Estelle T. Lau
DUKE UNIVERSITY PRESS Copyright © 2006 Duke University Press
All right reserved.
Chapter One Legislating Exclusion
Much has been written about the impact of immigration law on the Chinese community in the United States. For example, Bill Hing's analysis of the demographic impact of U.S. immigration law describes how the Chinese and, more generally, all Asian American communities, were "made and remade" by immigration policies. Hing argues that by shaping the demographic composition of these immigrant communities, immigration policies also shaped in a fundamental manner three important aspects of immigrants' experience-educational performance, political participation, and self-identity. Likewise, legislative mandates form the structure within which administrative agencies and agents carry out their daily tasks.
The Chinese Exclusion Laws Following thirty years of open immigration from China, during which time nearly three hundred thousand Chinese entered the United States, the 1882 Exclusion Act was passed as a temporary means of curtailing Chinese immigration. This is not to say that this or other exclusion laws were written out of whole cloth. Rather, the Exclusion Act stemmed from local attempts to curb theinflux of Chinese into the Western states. Prior to the passage of the federal exclusion laws, individual states had unsuccessfully attempted to discourage residency and to limit entry either into the United States or into each separate state. California residents were the most persistent. Soon after the first Chinese arrivals, the legislature passed a tax exclusively on Chinese gold miners. Chinese complained about the law, but records indicate that over 75 percent of the state's revenues could be attributed to the Foreign Miner's Tax. Taxes on fishing and then a general monthly head tax quickly followed, passed against any Chinese who was not already paying the Foreign Miner's Tax. Not only did Californians hope to make Chinese labor unprofitable for the Chinese, but they hoped that by permitting increased violence against the Chinese, they would be encouraged to move elsewhere. In People v. Hall, the California judiciary denied Chinese the right to testify in court, which meant injuries against Chinese could not be prosecuted. This ruling meant that almost all acts of violence against Chinese could not be prosecuted since Chinese testimony was now inadmissible in court. Passage of the Civil Rights Act in 1870, however, and the guarantees of the Fourteenth Amendment made explicit discrimination difficult, but California legislators continued to pass facially neutral, though discriminatory, legislation. The so-called Queue-Cutting Ordinance mandated the trimming of all prisoners' hair. This was a state-sanctioned form of harassment of Chinese men, by forcing the cutting o of their queues, ostensibly for public health reasons. A Cubic Air Ordinance required five hundred cubic feet of air per renter and sought to close Chinatown boarding houses; and a series of laws attempted to drive the Chinese out of the laundry business, where the majority of laborers had found employment after being driven out of the mines and fisheries. The federal courts, however, held many of these laws to be unconstitutional. Alongside legislation aimed at making life difficult for Chinese, Californians passed exclusionary laws from 1855 to 1879 and approved a constitution that prohibited the immigration of Chinese laborers, ordered their removal to outside of certain cities or within city limits to specified areas, and deprived Chinese of employment on any state, county, municipal or other public works. These attempts to explicitly regulate immigration were struck down again by federal courts as violations of the federal government's power to regulate foreign commerce.
Having failed at a local level to curb Chinese immigration, proponents turned their attention to the development of federal remedies. From being a relatively minor regional concern of little interest to most Americans, Chinese immigration took on national importance as its utility to solidify and galvanize voters emerged. The six years prior to enactment of the exclusion laws saw increasing debate and interest in the "Chinese Question" as politicians recognized its usefulness in breaking the deadlock between political parties that had paralyzed national politics after the Civil War. At first, the battle pitted Western anti-Chinese interests against a strong range of champions for the Chinese that included railway barons, manufacturers who hoped to keep customers in China happy and willing to purchase U.S. goods, missionaries, and individuals concerned with issues of fairness. In time, however, the need to carry Western voters and the votes of laborers across the United States won out and pushed politicians across the country to reposition themselves in favor of and to vote in support exclusion. Politicians eager to create a platform which would garner the support of laborers across the United States created and reinforced the distinction between Americans and immigrants-and, in particular, Chinese immigrants-in order to sever class-based commonalities that labor leaders initially felt between workers regardless of nationality. The Chinese Question became inextricably tied to reframed labor issues, drawing attention to the entry of all immigrant laborers as a threat rather than contract laborers who were instrumental as a threat and perceived threat during labor negotiations. Within this political backdrop, in 1880, the United States gained a concession from China in an amendment to the Burlingame Treaty of 1868 that permitted the United States to limit, though not absolutely prohibit, the immigration of Chinese laborers whenever American officials deemed that such immigration "affects or threatens to affect the interests of that country, or to endanger the good order of said country." Drawing from the powers granted under this amendment, Congress began to curtail Chinese immigration to the United States in a series of acts in 1882, 1884, and 1888, jointly known as the Chinese Exclusion Laws. During the next twenty years, the substance and application of the 1882 Exclusion Act broadened until, in 1904, the United States extended Chinese exclusion indefinitely. The series of laws passed between 1882 and 1904 facially excluded only Chinese laborers, thus allowing members of certain "exempted classes"-merchants, students, diplomats, and travelers-entry to the United States. In practice, however, the implementation of these laws made it equally difficult for non-laborers to enter, thereby serving as a general bar to any Chinese immigration during that period. Indeed, beginning with the 1882 Act, Congress established "a presumption that any Chinese seeking to enter the United States were 'coolies' and that those who were in the United States were there illegally."
The 1882 Act ("An Act to execute certain treaty stipulations relating to Chinese") suspended the immigration of all Chinese laborers for ten years and provided for the deportation of anyone entering illegally but did not apply to Chinese laborers already in the United States. In order to allow Chinese laborers previously residing in the United States to come and go freely, the 1882 Act set up an identification system. Before resident Chinese could leave, the collector of customs issued a so-called return certificate that included "all facts necessary for the identification of each such Chinese laborer."
The 1888 Act, known as the Scott Act, was perhaps the most controversial and prohibitive of the exclusion laws until the 1904 permanent bar to Chinese entry. It prohibited the entry of all Chinese persons except "teachers, students, merchants, and travelers of pleasure." Under the Scott Act, a Chinese laborer would not be readmitted to the United States unless he had property worth $1,000 or family in the country. Over twenty thousand Chinese laborers, following the provisions earlier set out which allowed for their return to the United States with proof of a valid return certificate, were denied entry even if they had left family or businesses in the United States when they left for China. The Scott Act reclassified all Chinese regardless of nationality as Chinese, and therefore subject to the exclusion provisions. Anyone of Chinese descent, whether citizens of Canada, Great Britain, or any other locale, were deemed to be Chinese. Finally, it forbade the granting of citizenship to any Chinese resident aliens.
Two further legislative enactments solidified and extended the restrictions imposed on Chinese immigration. First, the Geary Act of 1892 extended the exclusion of Chinese laborers for ten more years. The Act also denied bail for any Chinese in habeas corpus cases. Finally, it required that Chinese residents register with immigration officials and obtain certificates of residence and permitted arrests without warrants, imprisonment, or deportation of those found without a certificate. Second, the Act of April 27, 1904 indefinitely extended the Chinese Exclusion Laws. The 1904 Act was the last step the United States took to simply ignore the treaties that had, until that point, at least nominally limited the scope of exclusion.
Just as Chinese men were generally barred under the Chinese Exclusion Acts, so too Chinese women were excluded from entry. Legal scholars have noted two ways in which Chinese women were barred from entry. First, although the Exclusion Acts did not address Chinese women explicitly, federal court cases following the enactment of each act set precedents that treated them along with Chinese men. Thus, where the 1882 Act barred Chinese laborers, their wives became ineligible for entry. Since women gained derivative immigration status through Chinese men, wives of merchants were accorded the most preferential treatment. Oddly enough, Chinese wives of U.S. citizens encountered difficulty gaining entry since it was the labor status of the male, not his citizenship, through which immigration status was derived. Second, Chinese women were also barred from entry in their own right through legislation which pre-dated Chinese exclusion and, as many historians have noted, was more prohibitive to Chinese women than laws set out by the Exclusion Act rulings. Following unsuccessful attempts in California to close down brothels and limit the entry of Chinese prostitutes, Congress passed the 1875 Page Law barring entry to "Mongolian" contract laborers, convicts, and prostitutes. The Page Law did not curb the entry of Chinese men, with nearly fifty thousand entering the United States from 1880 to 1882, but it almost completely stopped the entry of women; fewer than 220 entered during that period, and their numbers dwindled thereafter through the period of exclusion due to fears of subjecting wives and young girls to the difficulties of detention and interrogation.
It was not until December 13, 1943 that the Chinese Exclusion Acts were formally repealed and a quota of 105 Chinese per year was allowed. The 1943 legislation also permitted Chinese aliens to apply for naturalization. Though the Repeal Act, as it came to be known, brought Chinese immigration in line with quotas set for all nations, as it was based on a percentage of the number of each country's nationals resident in the United States, it actually sought to perpetuate the effects of Chinese exclusion, though in a facially neutral manner. It did so in at least three ways: First, the percentage (one-sixth of one percent) was calculated using the Census from 1920. This was done explicitly to minimize the number of "less desirable" immigrants and maintain racial lines with the more restrictive atmosphere of 1920. Following forty years of exclusion and with the difficulties of enlarging the population through local growth due to the imbalance of men to women, Chinese residency in the United States reached its lowest point in 1920. Second, Chinese continued to be the only group counted as a racial category rather than as a nationality. For example, an Italian living in France would be considered French. In contrast, a person of Chinese heritage immigrating from Peru, China, or Indonesia would still fall under the Chinese quota. This meant that only 75 percent of the 105 quota slots were allocated to Chinese from China, while the rest were reserved for Chinese from other nations. Implementation of this rule meant that the full quota was never actually used, despite oversubscription. Finally, the Repeal Act was careful not to upset the inequitable rules that continued to prevent the entry of wives and minor children of U.S. citizens of Chinese descent. Legislators only debated but did not end disallowing family members from entering as non-quota immigrants.
During the next twenty years, legislation allowed additional, limited entry to brides and wives of Chinese Americans who had served in the U.S. armed forces during World War II and refugees who sought political asylum after the Communist government took power in 1949. On October 3, 1965, Congress abolished the national origins immigration quota system and renewed open Chinese immigration.
Administrative Legislation Legislation concerning the administration of Chinese immigration reflected the peculiar role of Chinese immigration regulation as first a distinct administrative problem that then served as a model for U.S. immigration processing. The legislative history manifests the fragmented and incoherent position that first characterized immigration control. Over time, successive moves of the administration mirrored changes in the perceived goals and related departments that would govern the application of immigration policy.
Because U.S. ports were concerned primarily with customs, and only marginally with the safety and comfort of passengers, beginning with the 1882 Act, Congress gave the secretary of the treasury responsibility for enforcing the Chinese exclusion laws. The secretary, in turn, delegated enforcement powers to the Bureau of Customs collectors at the various U.S. ports of entry. Parallel to the development of the Chinese Bureau was the development of the general administration for all other immigrant groups and the slow expansion of exclusionary policies toward other immigrant groups. Almost simultaneous to the 1882 Exclusion Act, a head tax was placed on all immigrants entering by ship, and local authorities were required to refuse entry to certain groups-namely, convicts, lunatics, idiots, or "any person unable to take care of himself or herself without becoming a public charge." This same law gave the secretary of the treasury supervisory control over general (non-Chinese) immigration, again processed through local state boards.
The delegation to local authority reflected the perception that immigration was best handled in a local, rather than a federal, venue, despite federal oversight of immigration. This continued until 1891, when Congress established the Office of the Superintendent of Immigration within the Treasury Department. Which began to run federally controlled receiving stations such as Ellis Island. Finally, in 1895, the Office of the Superintendent created the Bureau of Immigration, with the head of the Bureau given the title Commissioner General of Immigration.
However, the belief that Chinese immigration was a peculiar problem continued to hold sway, so that it was not until the Act of February 14, 1903, that the administration of the Chinese exclusion laws and administration of general immigration were consolidated. This move reflected the desire of enforcement agents to apply to the Chinese the harsher standard toward judicial review that had been imposed on the general immigrant population.
Similar to the slow development of an overarching and coherent national immigration policy was a confusion concerning the relationship of naturalization issues to immigration. Scholars have recently noted the close connection between the development of U.S. immigration policies and the belief in the right to naturalize based on underlying racial conceptions of certain immigrant groups being "fit" or "unfit" citizens for civic participation. However, the seemingly contradictory self-image of the United States as a land of immigrants that no longer wished to welcome new immigrants could not be reconciled easily by the American psyche at the turn of the twentieth century. Indeed, it was not until 1906 that naturalization was assigned to the same administration and the two functions were joined, and the Bureau of Immigration's name was changed to the Bureau of Immigration and Naturalization. The ultimate consensus concerning the proper venue for and scope of authority related to immigration and naturalization, however, remains unresolved as the United States envisions and re-envisions the priorities and structure of federal agencies. First, in 1913, the bureau was again transferred, this time to the Department of Labor, where it was again split into the Bureau of Immigration and Bureau of Naturalization. This shift in departmental authority appears to reflect the change in perception that the regulation of the flow of people across U.S. borders had a greater impact on labor and business than on the flow of goods into the country. In 1933, still within the Department of Labor, the bureaus were again consolidated by executive order to form the Immigration and Naturalization Service. It was not until 1940, with rising concern over criminal and subversive activities, that the combined service was transferred into the Department of Justice, where it resided until 2003 and the creation of the Homeland Security Department, which absorbed the ins along with twenty-two other agencies including the Secret Service, Coast Guard, and Customs Office.
Excerpted from Paper Families by Estelle T. Lau Copyright © 2006 by Duke University Press. Excerpted by permission.
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