Tuesday, September 22, 2020


Article Index

D. The Immigration Act

In addition to the Exclusion Act, the United States simultaneously enacted new immigration laws that sought to tighten borders and restrict the immigration of undesirable foreigners. Unlike the Chinese Exclusion Act, which excluded based on race and occupation, the immigration laws passed in 1891, 1903, and 1907 excluded based on the conduct of the intended immigrant, with a specific focus on excluding prostitutes and other morally questionable women.

First, the 1891 Immigration Act regulated the immigration of criminals, paupers, the insane, and those with contagious diseases. The 1891 Act also excluded women on moral grounds, including sexual misdeeds such as adultery, fornication, and illegitimate pregnancy. Later, the 1903 Immigration Act excluded all prostitutes from entering the United States. Furthermore, in 1907, prostitution became a ground for deporting women already in the United States. Specifically, the 1907 Immigration Act made female immigrants deportable if they were found an inmate of a house of prostitution or practicing prostitution, at any time within three years after she shall have entered the United States. This provision was used to deport women who had entered the United States legitimately and were later suspected of prostitution. The 1907 Act also criminalized transporting women for prostitution or any other immoral purpose. This provision was intended to address situations where it was unclear whether the women in question were either wives or prostitutes, such as concubines, mistresses, second wives, and women in arranged marriages.

The first case in which the 1907 law was applied involved Loue Shee, a Chinese woman, who came to the United States as a wife of a U.S.-born Chinese man. Loue Shee was deported for prostitution despite the fact that she was legitimately admitted as the wife of an American citizen. Under the same 1907 Immigration Act, Li A. Sim, a wife and mother of U.S. citizens, was deported in 1912 for being found in a house of prostitution. The court concluded that because she was involved in prostitution, she had lost the legal protections afforded to her by her marriage to an American citizen. Other women were also deported for prostitution although they claimed U.S. citizenship by birth or were married to U.S. citizens. The status of American citizenship and the legal protections of marriage were not enough to keep a suspected prostitute in the United States, even if she had entered the country legally. The shift from simply excluding prostitutes from entry to then deporting prostitutes even once they had entered the United States shows the extent of the government's attempt to exclude foreign prostitutes from the national polity.

The 1907 Immigration Act was not enforced exclusively against Asian women. In 1907, John Bitty, an American citizen, attempted to bring his mistress from England to the United States. Bitty was charged with violating the 1907 Act. In the case against him, the Supreme Court equated his mistress with a prostitute and concluded that, [t] he lives and example of such persons [prostitutes] are in hostility to the idea of the family as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony . . . Congress, no doubt, proceeded on the ground that contact with society on the part of alien women leading such lives would be hurtful to the cause of sound private and public morality and to the general well-being of the people. The Court noted that prostitutes, particularly alien prostitutes, were a threat to American moral values and even a physical threat to the American people. By extension, Chinese women who were all thought to be prostitutes, were all a threat to the nation. Again, the Western notion of marriage as a Christian monogamous union is used as a measure by which to judge the validity of other relationships. Thus, Bitty's relationship with his mistress was considered morally flawed and antithetical to American moral values.

To further curb prostitution, Congress passed the White Slave Traffic Act (Mann Act) in 1910. The Mann Act made it a crime to transport any woman across state lines for the purposes of prostitution or debauchery. The Mann Act also extended the length of time after entry to the United States during which an immigrant could subsequently be deported for violation of the Act.

Unlike the earlier Immigration Acts that focused solely on morality of conduct of immigrants, the 1917 Immigration Act not only further excluded foreigners based on morality of conduct, but also race. The Act created an Asiatic Barred Zone, excluding Asian immigrants from countries such as India, Burma, Siam, Malay, Arabia, Afghanistan, Russia, and Polynesia.

As a way to further exclude foreign women, the 1917 Immigration Act allowed immigration officials to deport women suspected of prostitution after nothing more than an executive hearing, leaving women without recourse to judicial hearings. The Act also expanded the reasons for which women could be deported (such as working at a place of amusement or resort habitually frequented by prostitutes). As a result of fear of fraudulent marriages between foreign prostitutes and American citizens, the 1917 Act did not allow a woman to naturalize if she married a citizen soon after the woman's arrest for prostitution.

Extending the Asiatic Barred Zone, the 1924 Immigration Act excluded almost all Asians from entering the United States. By excluding all aliens who were ineligible to citizenship, the 1924 Act essentially made all Asians ineligible to enter because Asians still could not naturalize.

However, in 1943, the government changed its official policy toward the Chinese, as a result of foreign policy concerns during the Second World War. The 1943 Magnuson Act repealed the Chinese Exclusion Act; it allowed Chinese to become naturalized citizens and established a quota of 100 Chinese immigrants per year. A 1946 amendment to the Magnuson Act exempted Chinese wives of U.S. citizens from the annual immigration quota and also allowed Filipinos and Indians to naturalize. An earlier law, the War Brides Act of 1945, which allowed some foreign wives and children of American servicemen to enter the United States, was amended in 1947 to include Asian women who married American servicemen.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law