In 1912, three years after Wong You’s arrest, his case, United States v. Wong You, reached the nation’s highest court. On one side of the courtroom, Wong You’s lawyers argued that Chinese immigrants could not be arrested under general immigration laws. If successful, Wong You’s lawyers would keep all Chinese deportation cases out of general immigration deportation proceedings where it was much harder to win an appeal. On the other side of the courtroom stood counsel for immigration authorities. They wanted this Supreme Court victory, because, if successful, they could continue what they started in Wong You’s arrest—limiting judicial review to Chinese immigrants.
The Supreme Court ruled in favor of the government. Justice Oliver Wendell Holmes, writing for the Court, found that, while Chinese immigrants “were tacitly excepted from the general provisions of the immigration act,” the law was “broad enough to include them.” Holmes wrote, “It seems to us unwarranted to except the Chinese from this liability [just] because there is an earlier more cumbrous proceeding which this partially overlaps. The existence of the earlier laws only indicates the special solicitude of the Government to limit the entrance of Chinese. It is the very reverse of a reason for denying to the Government a better remedy against them alone of all the world.… The present act does not contain the clause found in the previous immigration act of March 3, 1893, … that it shall not apply to Chinese persons.”117
After Wong You, the Bureau of Immigration began instructing its agents to arrest and deport Chinese immigrants under general immigration laws in every case possible; deportation numbers dramatically increased. The supervising inspector for immigration in District 23, which enforced the U.S.-Mexico border, noted a spike in the number of Chinese immigrants actually deported. “Formerly,” he wrote, “owing to the difficulty of presenting to the courts sufficiently convincing proof of illegal entry, it was impossible to secure deportation of such Chinese unless they were actually apprehended in the act of crossing the boundary.”118 In 1914, immigration agents along that border tried to deport 1,090 Chinese immigrants, serving 224 warrants under Chinese exclusion laws and 866 warrants under general immigration laws. By the end of the year, immigration officers had successfully deported 899 of the 1,090 arrested. Seven of the 191 who had not been deported were awaiting deportation and 116 cases were still pending.119
One immigration district noted that Chinese immigrants unsuccessfully attempted to bring the judicial standards back into the proceedings. The inspector from the New York district reported that “sometimes the conduct of the hearing is simple, but often it is complicated, partly through the efforts of counsel of the alien to treat it as a judicial trial, whereas, in fact, it is merely an executive hearing, and to introduce matter which is irrelevant or inconclusive upon the only issue, which is whether the alien should be deported.”120
While processing as many Chinese immigrants under general immigration proceedings as possible, U.S. immigration authorities continued to use the Chinese exclusion proceedings. This was because general immigration law contained time limits: immigrants could be deported only within one to five years of their entry into the United States, depending on the deportation provision. The only exception was the antiprostitution provision. Determined not to open the protection of time limits to Chinese immigrants, officials for a time operated both deportation policies when arresting Chinese immigrants. Immigration officers used general immigration laws in cases where they could prove that a Chinese immigrant had entered the United States within the time limit.121 In 1914, the department for the Mexican district explained that it went forward in a number of cases under Chinese exclusion laws because it had been “impossible to establish entry within three years.”122 In those deportations explicitly under Chinese exclusion, judicial review still remained open.
Other immigration districts reported their strategic use of both general immigration proceedings and those under Chinese exclusion to effect higher rates of Chinese deportations. In 1913, the New York district reported that it had held over 1,100 deportation hearings under general immigration law and ordered deportations in about 90 percent of the cases.123 In 1914, the San Francisco district reported handling 414 such cases, a 300 percent increase over the year before.124 The Chicago district had dramatic increases in 1914 as well.125 While the number of Chinese deported under general immigration laws rose, the number deported under Chinese exclusion laws fell. By 1916, Chicago officials used the general immigration laws almost exclusively to deport Chinese. They arrested 233 Chinese under general immigration laws and only 23 under Chinese exclusion laws.126 In 1918, the El Paso office reported that only 8 Chinese had been arrested under exclusion laws, while 132 Chinese cases were handled under general immigration laws.127 In 1914, the U.S. government deported a total of 131 Chinese under Chinese exclusion laws. In 1915, it deported 119; in 1916, 104; and in 1917, only 69.128
In 1917, the government completed the process that Bureau of Immigration officials had begun with Wong You’s arrest via changes to the Immigration Act. Section 19 of the Immigration Act of 1917 provided that “any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States … shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.”129 Here, administrators put a stop to the remaining ways Chinese exclusion overlapped with the criminal justice system. They had taken Chinese exclusion largely out of the judicial system, making it almost entirely a separate administrative law. Hereafter, all immigrants would be processed under what immigration officials called general warrant proceedings of general immigration policy; there would be no more access to the judiciary in the appeals process, except for new legal questions and for procedural challenges.
The Supreme Court endorsed the federal government’s power to deport in Fong Yue Ting in 1893, designating deportation as a power protective of the nation, rather than as a punishment for individuals. This set in motion an evolving national logic to deportation policy. With this designation, the Court made clear deportation proceedings were to be different from criminal trials, which limited the constitutional protections (particularly those of the Fourth, Fifth, and Sixth Amendments) available to people in deportation proceedings.
The appeals process under Chinese exclusion for many years, however, shared some procedures with criminal proceedings. The deportation policy that applied to all other nationalities did not, and that fact made it easier for immigration authorities to deport people under general immigration policy. By 1917, Congress folded the deportation proceedings of Chinese exclusion into general immigration policy, which was more efficient and led to higher deportation rates. In the process, the government streamlined its policy, making all deportation proceedings mostly administrative procedures and placing the burden of proof largely on the immigrant, who had few recourses of appeal.
At the same time that U.S. judges, politicians, and administrators were developing a national deportation policy, an international logic of deportation was emerging. The international context, which was set both in the sending and the receiving of deportees, set parameters on the U.S. government’s power to deport.
Chapter 2
The International Regime
In addition to the developing national deportation policy, an evolving international legal regime structured immigrant removals. One illustrative case of this structuring power took place in 1884, when German immigration authorities sought to deport a U.S. citizen named Constant A. Golly. Golly was born in Germany, but in 1875, at age seventeen, he immigrated to the United States. Five years later, he naturalized as an American citizen and gave up his German citizenship. In 1884, Golly visited Germany. According to Golly, he returned to Germany in 1884 to look after his ailing, widowed mother, and, while he did, he believed his U.S. citizenship exempted him from the military service required of German men. The Germans, however, understood it differently.1 Not long after his arrival, Golly received a notice from local authorities stating that he owed German