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Excerpted From: Elizabeth R. OuYang, Two Recent Supreme Court Decisions and Changing Demographics Underscore the Importance of US Citizenship, 27 Asian American Law Journal 4 (2020) (79 Footnotes) (Full Document)


ElizabethROuYangAsian Americans comprise the fastest-growing racial group in the United States; their numbers now exceed 20 million. Two recent Supreme Court decisions, both decided on June 27, 2019--Department of Commerce v. New York and Rucho v. Common Cause--play a critical role in determining whether the growing number of Asian Americans can translate into political, economic, and social power in the United States. Department of Commerce dealt with blocking a citizenship question on the 2020 Census, and the Court in Rucho refused to decide a challenge to partisan gerrymandering. Both decisions underscore the importance of citizenship and naturalization in the United States to maximize power. On one hand, the Asian American population in mainland United States has historically been relatively small; therefore, naturalization did not have an appreciable impact on the nation. On the other hand, in current times, a decision to naturalize can impact political outcomes with the appreciable growth in minority populations in the United States while anti-immigrant forces in power actively resist that population change through nativist rhetoric and draconian immigration policies. This article will discuss the impact of Department of Commerce v. New York and Rucho v. Common Cause against the historical backdrop of anti-Asian immigration laws to present-day challenges of becoming a US citizen in an increasingly anti-immigrant climate.

The recognition of the growing political clout of Asian Americans is preceded by a long and shameful history of the US government denying persons of Asian ancestry this coveted opportunity to naturalize. For more than a century and a half--from 1790 when naturalization was restricted to “free white persons” until the Immigration and Nationality Act of 1952 when Asians were no longer excluded from the United States--persons of Asian descent were either unable to apply for naturalization or unable to immigrate to the United States. After anti-immigrant sentiment intensified toward Chinese laborers mining for gold on the West Coast in the late nineteenth century, the Chinese Exclusion Act of 1882 restricted Chinese laborers from entering the United States. While the law itself was xenophobic, the United States applied this discriminatory law barring Chinese laborers from China to even US-born citizens of Chinese descent. The government used the Chinese Exclusion Act to also bar persons born in the United States whose parents were both Chinese nationals from returning to the United States after they traveled abroad.

United States v. Wong Kim Ark was a case in point. Born in the United States to Chinese nationals, Ark Wong left the United States to travel. Upon his return, US Customs detained him at the port. The Fourteenth Amendment, ratified in 1868, states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.” However, the government claimed that although Ark Wong was born in the United States, he was not subject to the jurisdiction of the United States and, therefore, was not a US citizen. The court ruled for Ark Wong, finding that a person born in the United States is a citizen and subject to its political jurisdiction. The court recognized:

[T]housands of persons of both sexes who have been heretofore considered as citizens of the United States, and have always been treated as such, will be, to all intents and purposes, denationalized and remanded to a state of alienage. Included among these are thousands of voters who are exercising the right of suffrage as American citizens, and whose right as such is not, and never has been, questioned, because birth within the country seems to have been recognized generally as conclusive on the question of citizenship.

The US government did not repeal the Chinese Exclusion Act until 1943 and only after China helped the United States fight Japan during World War II. A string of anti-Asian exclusionary laws followed the Chinese Exclusion Act that not only denied entry into the United States, but also “justified” legal discrimination toward Asians already living in the United States. The Immigration Act of 1917 created an “Asiatic barred zone” that excluded immigrants from all Asian countries, including India, except for Japan and the Philippines. Then came the Immigration Act of 1924, which barred Asians from all Asian countries, except the Philippines, from entering the United States because Asians were ineligible to become US citizens. By denying citizenship to persons of Asian descent, the United States could then justify the separate and inferior treatment of Asians already living in the United States. These legally sanctioned discriminatory policies ranged from anti-miscegenation laws, laws prohibiting Asians from testifying against whites in court, from integrating with whites in schools, from owning land in the United States, and restricting their means of livelihood by denying them permits to run laundry mats, to interning over 120,000 persons of Japanese ancestry, of which 70,000 were US citizens, in detention camps during World War II. The Immigration Act of 1924 was not repealed until 1965. A non-discriminatory quota system where “no single country was allowed more than 20,000 visas” was then put into place.

Asians challenged these discriminatory immigration policies preventing persons of Asian descent from naturalizing for nearly a century. Today, Asians, eligible for naturalization, should not take this hard-fought right for granted. Both of the recent Supreme Court decisions and increasingly restrictive immigration policies in response to changing demographics in the United States are a clarion call for lawful permanent residents, including those of Asian descent who are eligible to naturalize but have not done so, to become US citizens.

[. . .]

The lines in the sand are being drawn deeper and deeper between citizens and non-citizens, dividing communities rather than uniting them in the current volatile anti-immigrant climate, fueled by divisive rhetoric and nativist policies dictated from the Oval Office. The recent series of tweets by President Trump, calling for four non-white “Progressive Democratic Congresswomen” to “go back and help fix the totally broken and crime-infested countries from which they came from” when three of whom were born in the United States and one other is a refugee from Somalia, who has been a naturalized American citizen since 2000, speak for themselves. These distinctions are being felt not only along political lines but also along economic and social lines. While the overall crime rate has gone down in the United States, hate crimes are on the rise. Many nonprofit organizations whose primary mission is the provision of social services or education but not civic engagement are now doing voter registration. Simultaneously, we must educate immigrant communities on the importance of becoming naturalized citizens for their safety and to exercise their constitutional right to vote. By voting, they protect not only their interests but also the voices of the millions ineligible to apply for citizenship who also have a vested stake in policy and civic participation. The stakes are high. Taking the next step to naturalize and exercise the right to vote maximizes the opportunity to shape power and democracy at a pivotal time in US history.

Elizabeth R. OuYang, Esq. is an adjunct professor at Columbia University and New York University.

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