Chinese women and children, or their advocates, brought many legal challenges to decrees denying them entry into the United States or seeking to deport them. Relying on more than 150 reported habeas corpus cases decided in West Coast federal courts between 1875 and 1924, we examine how courts helped to structure the rise of the administrative state through controversies involving the boundaries of citizenship, legal residency, and familial status. Cases involving those particularly vulnerable individuals whose statuses were conditioned upon their familial bonds helped to shape the meaning and scope of civic membership. Amid political conflict within institutions of the American state and increasing pressure to curtail immigration, the courts gradually ceded primary decision-making authority to administrative agents, legalizing the administrative state. However, courts continued to supervise what kinds of decisions administrators could make, what kinds of procedures administrators had to use, and what kinds of evidence had to be considered in order to render legitimate the exercise of administrative discretion. Chinese women and children seeking recognition of their citizenship or permanent residency posed what were perceived as moral and civic dangers to the family and the state. This rendered their direct rights claims less enforceable as administrators’ authority to determine status expanded.
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See Stephen Skowronek, Building a New American State (New York: Cambridge University Press, 1982).
We investigate only reported opinions in Chinese habeas cases from California federal courts and Ninth Circuit and Supreme Court cases originating there. Many additional dispositions appear only in docket records. The reported opinions do not allow generalization about the success rate of petitions. Nonetheless, they show how federal courts established legal categories, defined rights’ boundaries, and interpreted the Supreme Court’s frameworks.
See Eileen McDonagh, “The Family-State Nexus and American Political Development: Explaining Women’s Political Citizenship,” Polity 48 (2016): 186–204. See also McDonagh, The Motherless State: Women’s Political Leadership and American Democracy (Chicago: University of Chicago Press, 2009); Linda Kerber, “The Republican Mother: Women and the Enlightenment – An American Perspective,” American Quarterly 28 (1976): 187–205. Note also that the suspicions with which fact finders viewed alleged Chinese familial bonds likewise undermined the implied benefits to the polity of republican motherhood, which presumed that legitimate American families would imbue their children with American values.
Gwendolyn Mink, Old Labor and New Immigrants in American Political Development (Ithaca, N.Y.: Cornell University Press, 1986), 72.
See Michael Goldfield, The Color of Politics: Race and the Mainsprings of American Politics (New York: New Press, 1997); Herbert Hill, Black Labor and the American Legal System (Washington, D.C.: Bureau of National Affairs, 1977) on the exploitation of racial divisions in the labor force. Use of immigrant and black labor as strikebreakers was especially pronounced in anthracite coal mining, steel, and textiles; and Mink, Old Labor and New Immigrants, 41 (see note 4 above).
Mink, Old Labor and New Immigrants, 73, 51 (see note 4 above).
Several federal court decisions struck down California laws measures such as head or capitation taxes dating from the 1850s, and others struck down San Francisco ordinances. A few important examples were People v. Downer, 7 Cal. 169 (1857) (striking down the 1855 capitation tax); Lin Sing v. Washburn, 20 Cal. 534 (1862) (striking down efforts to protecting white labor from coolie labor); In re Ah Fong, 1 F. Cas. 213 (C.C.D. Cal. 1874) (striking down the state ban on importation of Chinese women for purposes of prostitution); and Chy Lung v. Freeman, 92 U.S. 275 (1875) (affirming that any such power resided with the federal government).
Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America (Princeton, N.J.: Princeton University Press, 2002), 9.
Skowronek, Building a New American State, 42 (see note 1 above).
See Tichenor, Dividing Lines, 12–13 (see note 9 above); Desmond King, Making Americans: Immigration, Race, and the Makings of a Diverse Democracy (Cambridge, Mass.: Harvard University Press, 2000), 51.
Congressional Research Service, Report for the Select Commission on Immigration and Refugee Policy, “History of the Immigration and Naturalization Service” (Washington, D.C.: United States Government Printing Office, 1980), 8–11. The Bureau of Immigration shifted to the Department of Commerce and Labor in 1903 and to the new Department of Labor in 1913.
Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995), 131.
Immigration Act of 1907, 34 Stat. 898, Chapter 1134 Sec. 2, February 20, 1907.
Gwen Alphonso, “Resurgent Parenthood: Organic Domestic Ideals and the Southern Family Roots of Conservative Ascendancy, 1980–2005,” Polity 48 (2016): 205–23.
See Patricia Strach, All in the Family: The Private Roots of American Public Policy (Stanford, Calif.: Stanford University Press, 2007).
When men initiated habeas petitions claiming ownership of young women as servants (who were likely intended for prostitution), the young women winning freedom through a writ of habeas corpus were often anything but free.
Salyer, Laws Harsh as Tigers, 34 (see note 14 above). Salyer located thousands of additional cases in docket books of the Federal District Court for California.
In re Ah Fong, 1 F. Cas. 213, 216 (C.C.D. Cal. 1874).
In re Ah Quan, 21F. 182, 186 (CC D. Cal. 1884).
Ibid. See also In re Chung Toy Ho and Wong Choy Sin, 42F. 398 (D. Ore. 1890).
United States v. Gue Lim, 83 F. 316, 140 (D. Wash 1897) at 140.
In re Lum Yin Ling, 59 F. 682, 683 (D. Ore. 1894) at 683.
United States v. Chung Shee, 66 F. 953 (N.D. Cal 1895); United States v. Chung Shee, 76 F. 951 (9th Cir. 1896). Likewise In re Gut Lun, 84 F. 323 (N.D. Cal. 1897) upheld an Arizona ruling against a woman it had determined to be a laborer lacking a certificate.
See United States v. Lao Sun Hu, 85 F. 422 (N.D. Cal. 1898).
In re Lee Lung, 102 F. 132 (D. Ore. 1900).
In 1900, authority for implementing the Chinese exclusion laws and attendant federal regulations shifted from the Customs Service to the Office of the Superintendent of Immigration (then in the Treasury Department).
Tsoi Sim v. United States, 116 F. 920, 925 (N.D. Cal. 1902).
Hoo Choy v. North, 183 F. 92 (9th Cir. 1910); Haw Moy v. North, 183 F. 89 (9th Cir. 1910).
Fong Mey Yuk v. United States, 113 F. 898 (9th Cir. 1902).
Fong Mey Yuk v. United States, 113 F. 898 (9th Cir. 1902). The Ninth Circuit Court of Appeals applied this ruling when Yee N’Goy objected that the commissioner lacked jurisdiction over her as a legal resident. The court confirmed that, without a certificate of registration, she had to prove her right of residence. Yee N’Goy v. United States, 116 F. 333 (9th Cir. 1902).
Lee Ah Yin v. United States, 116 F. 614, 615–16 (9th Cir. 1902).
Wong Ah Quie v. United States, 118 F. 920 (9th Cir. 1902). A Washington district court sympathized with her flight from prostitution by entering a marriage, likely arranged by a benevolent society. The court rejected the deportation order; it was reinstated by the circuit court. United States v. Ah Sou, 138 F. 775 (9th Cir. 1905).
34 Stat. 898, February 20, 1907.
Looe Shee v. North, 170 F. 566 (9th Cir. 1909). The Supreme Court invalidated the statute’s criminal penalties in Keller v. United States, 213 U.S. 138 (1909) as exceeding Congress’s authority. See also 179 F. 110, 112 (9th Cir. 1910).
Chu Tai Ngan v. Backus, 226 F. 446, 447 (9th Cir. 1916). But see Chan Kam v. United States, 232 F. 855 (9th Cir. 1916), reversing the order; her statement was taken when she was in jail and not represented by counsel.
In Ex parte Ung King Ieng, 213 F. 119, 121 (N.D. Cal. 1914), the woman was forbidden to cross-examine four witnesses. See also Low Kwai v. Backus, 229 F. 481 (9th Cir. 1916), finding improper delegation to a local immigration commissioner.
Chew Hoy Quong v. White, 249 F. 869, 870 (9th Cir. 1918).
Choy Gum v. Backus, 223 F. 487 (9th Cir. 1915).
Jung Back Sing v. White, 257 F. 416 (9th Cir. 1919); Tsuie Shee v. Backus, 243 F. 551 (9th Cir. 1917).
Chin Ah Yoke v. White, 244 F. 940, 942 (9th Cir. 1917). See also Tsui Shee v. Backus, 243 F. 551 (9th Cir. 1917).
In Ex parte Tsuie Shee, 218 F. 256 (N.D. Cal. 1914), the wrong administrative official heard the appeal. See also Mah Shee v. White, 242 F. 868 (9th Cir. 1917).
Ex parte Chan Shee, 236 F. 579 (N.D. Cal. 1916).
In one case, marriage under Hawaiian territorial law was deemed sufficient to secure a woman’s status. Halsey v. Ho Ah Keau, 295 F. 636, 637 (9th Cir. 1924).
Chan Gai Jan v. White, 266 F. 869 (9th Cir. 1920); Wong Wing Sing v. Nagle, 299 F. 601 (9th Cir. 1924).
That is, Chin Shee objected that the Asiatic Barred Zone Act of 1917 was passed after she had gained resident status; in response, the Ninth Circuit Court of Appeals emphasized Congress’s discretion “to exclude or expel aliens, or any class of aliens.” Chin Shee v. White, 273 F. 801, 809 (9th Cir. 1921). See also Chun Shee v. Nagle, 9 F. 2d 342, 343 (9th Cir. 1925).
Ex parte Cheung Sum Shee; Ex parte Chan Shee, 2 F.2d 995, 997, 998 (N.D. Cal. 1924).
Contrast with Chan Shee – 236 F. 579 (N.D. Cal. 1916) – who could remain because she could simply get the appropriate wifely certification and re-enter the country.
Leong Shee v. White, 295 F. 665, 667 (9th Cir. 1924).
The United States recognizes two forms of birthright citizenship: jus soli, or citizenship premised on an individual’s birth on American soil, and jus sanguinis, or citizenship premised on an individual’s biological descent from an American citizen parent. Children of Chinese could claim citizenship on either basis, although, as this discussion will explain, Chinese children’s access to jus soli citizenship was controversial.
In re Look Tin Sing, 21 F. 905 (C.C. D. Cal. 1884), citing an 1819 ruling in which a daughter born to two aliens in the United States was adjudged a citizen.
Ex parte Chin King; Ex parte Chan San Hee, 35 F. 354, 355–56 (C.C. D. Ore. 1888); emphasis in the original (at 355).
In re Wy Shing combined with In re Wong Gan, 36 F. 553 (C.C. N.D. Cal. 1888).
Gee Fook Sing v. United States, 49 F. 146 (9th Cir. 1892). However, the court refused to declare clear error in a finding of fact; at the petitioner’s district court hearing, only Chinese witnesses testified about his place of birth.
See McDonagh, “The Family-State Nexus” (see note 3 above).
In re Wong Kim Ark, 71 F. 382, 384, 392 (1896).
United States v. Wong Kim Ark, 169 U.S. 649, 667–68 (1898); quote at 668.
Salyer, Laws Harsh as Tigers, 208–09 (see note 14 above) on technical citizens; on accidental citizens, see Kristin A. Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Yale Law Journal 123 (2014): 2134–2235, at 2172–73.
United States v. Chun Hoy 111 F. 899, 901 (9th Cir. 1901). See also Chew Hing v. United States 133 F. 227 (9th Cir. 1904).
Collins, “Illegitimate Borders,” 2172 (see note 59 above); Erika Lee and Judy Yung, Angel Island: Immigrant Gateway to America (New York: Oxford University Press, 2010), 84–90; quote at 85, citing Rule 7 from U.S. Department of Commerce and Labor, Bureau of Immigration, “Treaties, Laws, Regulations Relating to the Exclusion of Chinese,” May 1905, 47. Wong Kim Ark himself faced suspicion upon his subsequent reentries; see Lee and Yung, Angel Island, 84.
In re Louie You, 97 F. 580, 581 (D. Ore. 1899). Gee Fook Sing (1892) reached a similar result.
Lee Sing Far v. U.S. 94 F. 834, 836 (9th Cir. 1889).
Woey Ho v. United States 109 F. 888, 890 (9th Cir. 1901).
Lee Sing Far v. U.S. 94 F. 834, 835 (9th Cir. 1889).
United States v. Ju Toy 198 U.S. 253, 263 (1905).
Chin Yow v. United States 208 U.S. 8, 13 (1908).
Even Justice Field, who embraced Fourteenth Amendment birthright citizenship in 1884, supported administrative denials of landing and lower courts’ denials of writs of habeas corpus amid questionable evidence. See Quock Ting v. United States 140 U.S. 417 (1891).
In re Tang Tun 168 F. 448, 490 (9th Cir. 1909). See also In re Can Pon, 168 F. 479, 483 (9th Cir. 1909).
Lee Yuen Sue v. United States, 146 F. 670, 671, 673 (9th Cir. 1906). One 1915 case found clear error – that of Backus v. Yep Kim Yuen 277 F. 848 (9th Cir. 1915).
Yee Chung v. United States, 243 F. 126 (9th Circuit, 1917).
Quan Hing Sun et al. v. White, 54 F. 402, 404–05 (9th Cir. 1918).
The 1907 Expatriation Act provided that any American woman who married a foreign male took the nationality of her husband; subsequently, one would have to claim citizenship through a citizen father.
Collins, “Illegitimate Borders,” 2158 (see note 59 above).
Men were sometimes targeted, too. A merchant working in San Francisco for 30 years was denied re-entry for ostensibly having two wives in China; San Francisco Call, March 13, 1912.
Kwock Jan Fat v. White, 253 U.S. 454, 464 (1920).
Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), following Chin Yow and Kwock Jan Fat.
Ng Fung Ho at 284–85. Despite this ruling’s limits on executive branch jurisdiction when citizenship was claimed, the Ninth Circuit Court of Appeals later interpreted the fair hearing mandate narrowly in cases involving women.
See, for instance, the Court’s rulings in Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Karen Orren and Stephen Skowronek, “In Search of Political Development,” in The Liberal Tradition in American Politics, ed. David F. Ericson and Louisa Bertch Green (New York: Routledge, 1999), 29–42, at 39.
We thank Zoeth Flegenheimer ’15 and Allison Hrabar ’16 (Swarthmore College), and Heather Bennett (doctoral candidate, University at Albany, SUNY) for research assistance. Amy Rappole, a student at the University of Maryland Francis King Carey School of Law, helped collect and classify some of our case law material. Two anonymous reviewers provided excellent suggestions on a previous draft of this article.
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Novkov, J., Nackenoff, C. Civic Membership, Family Status, and the Chinese in America, 1870s–1920s. Polity 48, 165–185 (2016). https://doi.org/10.1057/pol.2016.3
- political development
- Progressive Era
- Chinese immigration to the United States