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Excerpted From: Gabriel J. Chin, Relief and Statutes of Limitation for Deportable Noncitizens under Asian Exclusion, 1882-1948, 50 Southwestern Law Review 218 (2021) (69 Footnotes) (Full Document)
Reading Deported Americans is like watching a horror movie; it is all too easy to anticipate the terror coming. But it is no fantasy; this nightmare is real life. The book is the story of good people, many with close connections to the United States, deported without mercy or individual consideration. Sometimes, although not always, they are deported for trivial misdeeds which might well have been fixable had some legal assistance or fair process been available. Conviction of an offense meeting the absurdly expansive statutory definition of “aggravated felony”--the crime need be neither aggravated nor a felony a noncitizen categorically ineligible for most forms of relief. Accordingly, families are torn apart, careers ruined, children crushed, sometimes in ways not foreseen by the drafters of the laws, and often for no tangible benefit to the United States except the grim satisfaction of seeing laws enforced without reflection or judgment. Like virtue, torture, it appears, is its own reward.
From the perspective of the affected individuals, the stories are reminiscent of literary depictions of people who experienced sudden, dramatic, and unexpected changes in status, such as law dean and university president Gregory H. Williams, who in his book Life on the Color Line describes being a phenotypical White person who discovered when he was twelve years old that he was, in Jim Crow Indiana, considered Black. Mark Twain's The Tragedy of Pudd'nhead Wilson is a switched-at-birth tragicomedy of nearly identical infants, one of whom has a proverbial drop of Black blood.
As a matter of history, the book is also a grim reminder of fear of sudden, forcible displacement that people of color in the United States have often had to live with. Free African Americans were vulnerable under the pre-Thirteenth Amendment fugitive slave law and thereafter under a corrupt Jim Crow criminal justice system. Under Chinese Exclusion and later Asian Exclusion laws, from 1882 to 1952, Asian race standing alone constituted probable cause for arrest and deportation, including Asians who claimed to be U.S. citizens. In the 1930s and the 1950s, Mexican Americans, citizens, lawful residents, and unauthorized migrants were deported from the United States, some through legitimate legal process, and many not. In the modern era, the Supreme Court has held that under the Fourth Amendment, “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” in making a forcible stop to investigate immigration status. In addition, in the twenty-first century, U.S. citizens, mostly and apparently non-White, are regularly detained and sometimes deported through casual and biased procedures.
While, say, White Latter Day Saints, pacifists, and Communists sometimes had to fear detention or worse, so too did Latter Day Saints, pacifists, and Communists of color. I am unaware of any example of a law or legal practice under which White race, standing alone, constituted grounds for arrest or expulsion. A common feature of these policies is that they result from choices a majority White government inflicted on others, knowing that they would not be applied to White people. While in a technical sense, White immigrants are subject to the immigration laws, the risk of deportation itself, like the risk of arbitrary arrest and exile of U.S. citizens, is associated with non-Whiteness.
The book makes the reader cry out for a solution: Why is there not some relief available for deserving noncitizens? Why is there not a statute of limitations on deportation? Congress could decide that it is unduly harsh to deport people brought here below a certain age who have lived here for a set period, or those who have lived here for a particular period of time or percentage of their lives. After all, the law does not banish U.S. citizens no matter how egregious their offenses may be. Commentators have proposed limitations periods. At various times, federal immigration law has provided for periods of limitation.
The unfortunate answer to this question is that periods of limitation and other forms of relief have been, like the substantive immigration laws themselves, tainted by race and biased toward Whites. That is, it appears that individual, case by case consideration has been historically granted preferentially to the White race and denied to others.
The point is illustrated by a brief examination of the development of provisions for relief and limitation in U.S. immigration law at the height of Chinese and Asian Exclusion, 1882 to 1948. Congress regulated citizenship early on, providing in the Naturalization Act of 1790 that the benefits of the law were restricted to “free white persons.” However, there was no systematic federal regulation of immigration until 1882.
Once federal immigration regulation became more vigorous, it affected immigrants of all races. However, exclusion or deportation of White immigrants was generally based on individual misconduct or disqualification, while race-based exclusion was generally categorical. In addition, Congress created statutes of limitation and opportunities for relief that were often restricted by race. In the first half of the twentieth century, a clear pattern appeared. With each new immigration law, Congress tightened Asian exclusion. Congress added additional grounds for exclusion or deportation of White immigrants but often with a race-restricted waiver or relief provision. Thus, even for Whites who have earned deportation, there is still the opportunity for case-by-case leniency and consideration of individual circumstances.
In 1882, Congress passed the Chinese Exclusion Act; it would remain in force until 1943. Courts were apparently unanimous that “[n]o lapse of time will bar an action for deportation under the Chinese Exclusion Act.” Accordingly, the law authorized deportation no matter how long an allegedly unauthorized Chinese person had been in the United States. However, the Chinese Exclusion Act required judicial procedures before deportation could be ordered.
Recognizing the harshness of deporting long-time U.S. residents, the Immigration Act of 1907 created a statute of limitations for deportation of noncitizens who had been excludable at the time of entry. The Act allowed administrative deportation of immigrants but only if proceedings were initiated “within the period of three years after landing or entry therein.” The 1907 law also enhanced racial restriction in addition to its other restrictive features; it operationalized the Gentlemen's Agreement excluding Japanese laborers by prohibiting immigration to the United States of Japanese people with passports issued for travel to other countries.
The 1907 Act did not extend the protection of a statute of limitation to Chinese people. The Supreme Court held that after 1907, with respect to Chinese alleged to have entered unlawfully, the government could elect to proceed at any time under the judicial procedures of the Chinese Exclusion Act, or within three years after entry under summary executive procedures generally applicable to non-citizens.
The Immigration Act of 1917 extended the time limit for summary deportation of inadmissible noncitizens to “five years after entry.” The 1917 Act is recognized as a landmark, dramatically expanding grounds for deportation of otherwise lawful residents. As Daniel Kanstroom explained:
The essential pieces of the modern regime of deportation for post-entry criminal conduct were contained in the 1917 Immigration Act. Unlike any prior law, the 1917 act included a list of otherwise legal resident aliens who were to be “taken into custody and deported.” It also radically changed prior law by requiring deportation after entry for a wide variety of reasons and in permitting deportation without time limitation for certain types of cases.
The Chinese Exclusion Act applied to Chinese people; the Gentlemen's Agreement to Japanese immigrants. The 1917 Act also added the first systematic Asian Exclusion provision to U.S. law. It deemed inadmissible natives of all of continental Asia and carried forward the Gentlemen's Agreement excluding Japanese migrants. Nevertheless, Asians other than Chinese whose race made their entry into the United States unlawful could claim protection of the five-year statute of limitation.
Notably, the 1917 law also created the “judicial recommendation against deportation” (JRAD) which allowed a noncitizen convicted of a crime in the United States to avoid deportation. Thus, the expanded grounds for deportation in the 1917 Act were partially matched with a method of avoiding it. The JRAD appears to have been racially unrestricted.
The 1917 law contained another waiver provision for residents returning from an overseas trip: “aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe.” This was the so-called “Seventh Proviso,” based on its position in the Act; it was later incorporated as Section 212(c) of the Immigration and Nationality Act of 1952. The Seventh Proviso operated to grant relief to people who could not be deported, because, say, the statute of limitations had run, but had subjected themselves to another test of their right to be in the U.S. by leaving and trying to return. The Seventh Proviso, at first, did not appear to be racially restricted.
The Immigration Act of 1924 may well be the most racist, bigoted, anti-Semitic, and anti-Catholic statute in U.S. history. It created the national origins quota system, discriminating against Southern and Eastern Europeans. The 1924 Act also perfected the Asian Exclusion laws by excluding all noncitizens who were racially “ineligible to citizenship.” Because Asians could not naturalize under the 1790 law as amended, they were, with few exceptions, excluded as immigrants. The Act eliminated the five-year limitations period for deportation of people who were not entitled to enter. Accordingly, the five-year statute of limitation for Asians other than Chinese was unavailable to those arriving after the 1924 law came into force.
However, in 1929 Congress created the remedy of “registry” for residents unable to prove lawful entry but who had arrived in the United States before June 3, 1921. Congress racially restricted registry when they created it in 1929, making it available to “any alien not ineligible to citizenship.”
The 1924 Act did not explicitly repeal or amend the Seventh Proviso of the 1917 Act. However, immigration authorities concluded that the 1924 Act rendered the Seventh Proviso inapplicable to Asians, and the Ninth Circuit agreed, at least as to those seeking to reenter after the 1924 Act came into force. The apparent rationale was that a person who, say, entered with a criminal conviction years before but had not reoffended (thus creating a fresh ground for deportation) might be said to have moved beyond the disqualification. But when a person of a forbidden race reentered, they still possessed the same prohibited characteristic in precisely the same way; it was incurable by moral rehabilitation, improvement of health, finances, or political views, or any period of good behavior.
A recurring question involved sailors who came without authorization before the 1924 law, and therefore had the protection of the statute of limitations but were alleged to have departed from the United States and returned after the 1924 Act came into effect. Some cases held that return after a trip was a new entry, at least if during the voyage the sailor landed in a foreign port or changed ships, subjecting a sailor to exclusion under the 1924 law. But in 1947, the Supreme Court held that a sailor on an American vessel who was briefly in Cuba after his ship was torpedoed was not making a new entry upon his return. Asian sailors enjoyed the benefit of that ruling.
In 1940, Congress created another racially restricted form of relief, suspension of deportation. The statute as amended in 1940 granted the attorney general discretion to “suspend deportation of [an] alien if not racially inadmissible or ineligible to naturalization” based on economic effects that deportation would impose on citizens or lawful residents.
Congress ended Chinese Exclusion in 1943, and allowed Filipinos and Indians to naturalize in 1946. But these relaxations were fairly clearly war measures encouraging or rewarding co-belligerents rather than civil rights breakthroughs.
In 1948, there was a noticeable change in the attitude of all three branches of the U.S. government toward racial discrimination. The Supreme Court prohibited enforcement of racially restrictive covenants in residential deeds in Shelley v. Kraemer. It also invalidated discrimination against Asian American landowners and fishers based on their, or their parents', ineligibility to citizenship. Among other actions, President Truman began desegregation of the Armed Forces.
For its part, in 1948 Congress extended the remedy of suspension of deportation created in 1940 to a noncitizen ineligible for naturalization if “such ineligibility is solely by reason of his race.” This was one of the earliest racially ameliorative actions in the immigration domain not driven or justified by war. To the contrary, Japanese nationals, perhaps the major racial group benefitted by the 1948 law, had been citizens of an enemy nation during the war.
[. . .]
The Immigration and Nationality Act of 1952 made all races eligible for naturalization. While it continued the racist national origins quota system and capped worldwide Asian immigration by race in a way applicable to no other races, since 1952 statutes of limitation and relief provisions have been available, or unavailable, equally to noncitizens regardless of race, ancestry or descent.
Famously, the racial demographics of the immigration stream changed after the end of the national origins quota system and Asian Exclusion in 1965. The United States has prospered because of it, even though some are troubled by the fear or actuality of “taco trucks on every corner” and other alleged cultural risks. From being overwhelmingly European, the immigration stream changed. On a race-neutral basis, without affirmative action, set-asides or quotas, the people who qualified based on either family connections to Americans or job skills have been overwhelmingly people of color from the Third World.
As the immigrant stream diversified, opportunities for individual relief to prevent deportation have been reduced or eliminated. Congress abolished the JRAD in 1990. In 1996, Congress repealed INA § 212(c) (the successor to the Seventh Proviso) and “modified relief previously known as suspension of deportation ... by creating the more restrictive cancellation of removal relief.” Congress created registry in 1929 and updated it in 1940, 1958, 1965, and 1986 by advancing the date before which an applicant had to show residence in the United States; that is, only once in the half-century since immigration was made race neutral. Registry currently offers lawful status to those who entered prior to January 1, 1972, more than two generations, compared to the eight-year window in the original law. Private bills in Congress were a possible mechanism for relief, but the remedy is now essentially defunct.
This summary hardly covers every detail of the changes in immigration law and relief mechanisms. But in broad strokes, it is clear that when most immigrants were White, and thus when most people subject to deportation were White, relief was much more readily available than it is today. Now that the racial demographics have changed, the grounds for deportation have become increasingly broad, and the opportunities for avoiding deportation increasingly elusive.
If this understanding of the history of U.S. immigration law is right, then there is an explanation for the absence of a mechanism to prevent the deportation of people who have lived substantial portions of their lives in the United States. The pattern takes place over a period of too many decades to suggest that it is a conspiracy or a policy; it cannot be attributed to a handful of individuals or advocates. But from 1882 to today, there has been a spirit in the air. U.S. immigration law that is willing to consider the situations of Whites on a case-by-case basis but draws rigid lines in rules affecting members of other groups.
Edward L. Barrett Jr. Chair & Martin Luther King Jr. Professor of Law, University of California, Davis School of Law.
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