AAS 205
Eric Mar
Notes from Ancheta Chapter 4 – Race, Immigration and Citizenship
Intro Exercise -
Q’s – pair and share – why did you or your family
[ancestors] immigrate to the
Push – pull factors
pp. 82-103
Immigrant experience in US – personal for many API’s
2/3 of AA community
story of angelo’s dad – as illegal alien – current efforts to deny birthright citizenship to children of undocumented
-
Intersection of RACE & NATIVISM in
immigration laws
Immig laws have special status – insulated from judicial review
Therefore, congress or the pres can enact almost any immig proposals based on immig status or citizenship regardless of its racial impact. So, racism can be easily masked by any law rooted in citizenship, sovereignty, or the ‘national interest’.
-
Nativism
& Law
1920 – CA alien land law [ext of 1913 law] – ballot initiative targeting Japanese immigrants overwhelmingly passed
U.S. S. Ct. struck this down in 1948 Ozawa v. CA – unconst. Bcs overly racist – media racism
1994 – Prop 187 – media images $ drain, services to undoc. – passed overwhelmingly
Modern nativism – brimelow’s alien nation draws from historical nativism agst Chinese in CA. – ‘racial imbalance caused by immig.; difficulty of assimilating immigrants; so, immig should be restricted. White ethnic core of US.
Law incorporates nativism in 2 ways:
1.
exclusion – 1882 Chin Excl
Act; Asiatic Barred Zone of 1917 [expanded CEA to bar people from the larger
triangular area surrounding
2. subordination – of immigs already living in US
ex. Bars to naturalization, alien land laws, English only laws, citz-based restrics on recv’g govtl services [prop 187]
Immig laws immune from judicial review:
Question – Why? Explain.
Answer: Doctrine developed from S. Ct’s upholding of Chinese Exclusion laws of 1880’s.
· JA internment cases – national security interests placed over civil rights – ok to subordinate individuals, incl. US citizens, on the basis of race.
· But use of immig policies to place national sovereignty interests above civil rts can subordinate people even more easily
pp. 86
Fed power over immig = Close to Absolute power
S.Ct. deferred power to congress and the pres. – bcs it involves national sovereignty as an overriding govtl interest.
Roots from anti-asian immig laws of 1880’s
Fed Constitution – no mention of immigration powers
Naturalization clause – a congressional enumerated power – congress shall have the power to est. a uniform Rule of Naturalization.
Chae Chan Ping [Chinese exlusion case] v. US –
Indy nations need power over its territory.
Sovereign powers of govt
were to:
Declare war
Make treaties
Repel invasion
Regulate foreign commerce
Admit the subjects of other nations to
citizenship
The power to regulate immigration [similar to the power to repel invaders during war] – racial exlusion power was implicit within powers of sovereignty.
Racialization of Chae
Chan Ping – viewed as returning to the
Courts extended fed power to exclude immigrants to the Executive Branch
Nishimura Ekiu v. US – judicial br should yield to congress & pres.
Deportation power – upheld by Fong Yue Ting v. US –
Chinese w/o papers couldn’t provide white witness to testify as to their residency;
Ct. exclusion power = deportation power – flipside
Limits – power not absolute
Deportees have rights to due process. Yamataya v. Fisher [Japanese woman immig allegedly entered US illegally had rec’d due process even though she had no translator, no legal counsel, no opp to contest the findings of the ct.] ct said racial excl = ok. Enforcement ok to executive officers, without judicial intervention. Gradually more due process rights were granted to immigs.
Plenary Power pp. 88
Why no challenges to Immig Acts of 1917, 1924 and 1952? Immune to const. Challenge bcs of plenary power doctrine est in asian excl cases of S. Ct.
1792 Natl Law – racial bar to naturalization – could not be challenged in courts & lasted til 1952. so, api’s just sought to be treated as ‘white persons’ under the law.
Congressional action over time removed racial considerations in immigration and naturalization laws.
Conflicts? First amendment v. plenary power – Kleindienst v. Mandel [visa for Marxist denied] – absolute power over aliens.
-
Race and National Origin in the Immig Laws
IMMACT 90 – diversity lottery – primary beneficiaries European and African.; transitional lottery pgm – helped mostly Europeans/Ireland 40%. Congress chose to add these new visas while letting the existing backlogs remain!
Congressional Power over Immigrants
Due Process – 5th & 14th Amendments
1976 – S. Ct. ok’d 5 yr resid reqts on lprs to receive Medicaid.
Hampton v. Mow Sun Wong – challenge to fired ee’s who were non-citizens
Pres Ford – citizens only hiring policy.
-
Immigrants and Equal Protection
Takahashi v. Fish & Game Commission -
70’s - Alienage = suspect classification – strict scrutiny [narrowly tailored to meet compelling interest]
p. 94 –
Plyler v. Doe – 5:4 – undoc kids have right to equal prot & education
Texas statute that denied funds to school dists. That had undoc kids in their schools.
Level of scrutiny – not rational basis/intermediate level – substantially related to an important interest/since undoc people are in viol of law and not a suspect class.[quasi suspect class]
***
[to do – find easy to understand chart for class; post on website]
pp. 96
Racialization operates to link race and
citizenship by equating Asian Americans with
foreigners and with immigrants.
Racial meanings for immigration laws
Ex. Prop 187 – 63% whites; No = 73% latinos, 53% APIs and 53% Black
EPC challenge to 187 difficult
Prop 187 = race neutral – how to prove discriminatory intent?
-
Unequal Citizenship
Civil rights Principle – equality of citizenship [so noncitizens do not posses the same political rights as citizens]
Non-Citizens =
LPR’s [many of same responsibilities as US citizens [taxes and military service avail.]
undoc [ewi, overstayed visas, etc.]
Alternative: Equal Citizenship principle [Karst]
Based on equality and prevention of subordination- difs have no legit govt’l purpose
Formal Citizenship Rights: pp. 99 – political rts as full membership rts & seen as attributes of power btwn dominant and subordinated groups
·
Right to vote [non-citz rts?]
·
Right to Hold elected office
·
Right to Serve on a jury
Right to vote:
Hist. Local and state govts [principle of federalism] have granted non-citz the right to vote [19th cent. To expand #’s of white male vtrs]
1980’s – Chicago and NYC – non-citizen parents in school bd elections granted that right
1993 – Takoma Park, Maryland – ballot initiative allowed noncitz vtg rts
Modern Trend: Deny rights – values of our society – disturbing direction [dominant worldview]
Ex. Prop 187 – denial of rts to undoc – to health care, education, social services
Ex. 1996 welfare reform law – LPR’s discrim – denied rts to ssi [blind, elderly, disabled] , food stamps, and other public benefits] – context conservative congress
pp. 101
-
Nativism & Citizenship
Dif betwn Alienage & Race – race is immutable
LPR’s become US Citz thru process of naturalization [rt granted in 1952!]
Chipping away at rts – ‘us v. them’ dominant worldview & actions
Anti-immig forces’ – proposals to create more barriers to naturalized citizenship
- proposals to change the concept of 14th amdmt birthright citizenship by denying citz to children of undoc parents
-
Lawful permanent residence status
Minimum residency period in the US [5 yrs for
most, 3 yrs for spouses of citz]
Good moral character
Understanding of English and Civics
Allegiance to the US
[possible waivers of English Lang reqt for disabled and elderly longtime residents – ex. LPRs over 55 yrs old, resided in US over 15 yrs – ok to take test in native lang.]
proposed restrictions [adding more barriers]:
incr. Residency period
elim waivers for longtime residents of the language reqt
making engl and civics test more ‘difficult’
-
Birthright Citizenship:
Slavery [dred scott – blacks were not ‘citizens’ under law and had
no rts a white man was bound to respect] - 14th
amdmt
QUESTION –
Fact of case? How did govt authorities justify their decision to keep Mr. Wong from returning to the US?
IRAC
– what was the rule applied by the courts to resolve the case?
1898 – U.S. v. Wong Kim
Ark –
RULE: all persons born in the US, even those born to parents who were ineligible for naturalization, were citizens of the US.
Efforts by anti-immig forces to alter this basic principle – deny US born kids of undoc parents rt to citizenship
Q: - motivations for denial of rights?
Limits on immig community empowerment
Q – assumptions about why people immigrate….
Push pull
Economic arguments
Solutions?:
Consent based theory? [citz w/o consent – schuck and smith]
Objective conditions for citizenship – must consent to citz once reaching adult age
Chapter 5 – Language and Legal Conformity
Lau vs. Nicholds
Kinney Lau 1970- SFUSD
3000 LEP Chinese Am [today about 30,000 total API stdts many LEP
Language Barriers and Asian Immigs
Equal Access struggles
ESL
Pluralism and Assimilation
Multilingual population – how to address needs?
Language and Govl Responsibility
Lau
Language Asst. and Education
Language Asst and the Voting Rts Act
Govt and Official English
1st amdmt
Due Process
Equal Protection
Accent Discrimination
Language and Power