Deportation Proceedings Under Chinese Exclusion
A much longer term challenge facing those tasked with enforcing deportations under Chinese exclusion arose from the fundamental question: what did it really mean in the post–Fong Yue Ting world that deportation was not a punishment? Finding the answer was incredibly challenging and took decades. It was worked out on the ground in communities where people of Chinese descent lived, by a collaboration of federal and state officials, through the kinds of enforcement actions—arrest, hearing, and appeal—that made up deportation proceedings of Chinese exclusion.
The first stage of deportation proceedings as set up under Chinese exclusion took place in front of a federal administrative official known as a U.S. commissioner. U.S. commissioners were not unique to the immigration bureaucracy; they were administrative officers appointed to reduce the workload of the courts. The appellants had questioned the constitutionality of the administrative hearing in Fong Yue Ting in some of the finer points of their argument. Holding administrative hearings, the lawyers argued, was not consistent with Fifth Amendment due process rights. The Supreme Court had disagreed. The judicial branch was capable of hearing deportation cases, but, according to the Court, it was not the only branch that could do so. It was not unprecedented, the Court noted, for officials in other branches of the government to make decisions about laws, and that doing so did not represent a violation of due process.44
If a commissioner found an immigrant deportable, the immigrant could petition for a writ of habeas corpus and appeal the ruling.45 The initial appeal needed to take place within ten days of the original deportation order. If done so, the case first went to the federal district court.46 If an immigrant still wanted to challenge his or her deportation after a hearing at the district court, the case could then be appealed to the circuit court of appeals and finally to the U.S. Supreme Court. In all of these levels of appeals, judicial officers—federal judges—decided the cases.
People facing this civil proceeding did not have many of the constitutional protections open to people in criminal proceedings. The 1902 district court hearing of United States v. Lee Huen revealed the limits of the Fifth Amendment. “If defendants fail to give testimony in their own behalf,” the judge said, “and explain doubtful matters peculiarly within their own knowledge, in these deportation cases, that fact may be commented on, and used to their disadvantage, possibly, for such fact may be considered by the court or commissioner, with all the evidence and circumstances of the case, and justify him in taking testimony they might have explained or denied, strongly against them.”47 Nor could the accused claim the right to trial by jury.
Furthermore, under civil law, the standard of judgment was the preponderance of credible evidence, whereas in criminal cases judgment had to be beyond all reasonable doubt.48 This effectively placed the burden of proof on the defendant rather than on the government; in theory, federal officials needed to do very little to win a deportation hearing. One case, United States v. Hung Chang, outlined just how little evidence the government needed to make its case. “No greater degree of proof,” the judge wrote, “is required on the part of the United States. It is not required to do more than satisfy the commissioner or judge, by affirmative proof, that the one under arrest is a person of Chinese descent. This does not mean to satisfy beyond any possibility of doubt, but only to a reasonable degree of certainty, such as a rational mind would demand in any serious matter of personal concern.”49 If a Chinese defendant did not produce a preponderance of credible evidence that he or she was not deportable, the decision went in favor of the government.
In 1892, Congress had outlined two ways for Chinese defendants to meet their burden of proof. The easiest way was to present the certificate. In cases where a Chinese laborer had lost or never possessed a certificate of residence, Congress created a second process to prove legal residence: the testimony of at least one white witness.50 Obtaining a white witness statement posed a serious problem for some Chinese immigrants. Tsui Kwo Yin, a member of the Chinese legation in the United States, described the challenges: a Chinese person must “find a white man who knew him on or before 1882. The laborer who is now in Washington City or Texas most likely lived in California in 1882. He must go to California and see if he can find a white man who knew him ten years ago and return with the evidence to the place where he now lives.” This was not a surprise to lawmakers framing the requirement; as Tsui Kwo Yin noted, “One of the Senators from Texas said that Chinese in his state would have to travel 500 miles to find a collector to give the certificate, and he would have to take a white witness with him.”51
In Fong Yue Ting, on behalf of Lee Joe, the Six Companies lawyers had challenged the white witness requirement, but the U.S. Supreme Court upheld it. The justices’ reasoning amounted to “not allowing such a fact [lawful residence] to be proved solely by the testimony of aliens in a like situation, or of the same race.” Justice Horace Gray, writing the decision, noted that this practice had “existed for seventy-seven years in the naturalization laws, by which aliens applying for naturalization must prove their residence within the limits and under the jurisdiction of the United States … by the oath or affirmation of citizens of the United States.”52 Gray’s wording seems to indicate that what was at the heart of the case was testimony from noncitizens; this was not what the white witness requirement addressed, because it equated whiteness with honesty and citizenship. The laws of Chinese exclusion did not call for a citizen to testify. They called for a white person to testify. Not all citizens were white and not all whites were citizens. And, it was not sufficient for a U.S. citizen of color to testify.53 Justice Field dissented, writing, “Here the government undertakes to exact of the party arrested the testimony of a witness of a particular color, though conclusive and incontestable testimony from others may be adduced. The law might as well have said that unless the laborer should also present a particular person as a witness who could not be produced, from sickness, absence, or other cause … he should be held to be unlawfully within the United States.”54
Over time, the lower courts further expanded on the legal justification for the white witness requirement.55 The 1902 decision in United States v. Lee Huen in New York captures the ways courts tended to regard Chinese testimony: Judge George W. Ray of the U.S. District Court for the Northern District of New York declared that “the testimony of Chinese witnesses … may be regarded as more or less weak; and, when contradicted or really impeached in any of the modes suggested and recognized by our law, the commissioner is justified in regarding such testimony, standing alone, as insufficient to convince the judicial mind.”56 Judge Ray stated that “it is common knowledge that enslaved peoples develop an inordinate propensity for lying, and this is characteristic of most oriental nations. This comes largely from their being subject to the caprice and exactions of their masters or superiors, and, having no sense of moral responsibility to them, they come to regard lying to them as no sin, and an habitual disregard of the truth is thus engendered.”57 Accordingly, a white witness and Chinese witness might say the same thing, but the white person’s words held more legal weight.58
While the appellants in Fong Yue Ting had failed in their appeal to the Supreme Court to shift the burden of proof in deportation cases from the defendant to the government or to overturn the one white witness requirement, over the next decade individual Chinese defendants used the appeals process to limit the effect of both. By 1901, Chinese defendants in districts like San Francisco were defeating deportation orders in as many as 90 percent of all cases. There were many defense strategies defendants used that explain these numbers. One of the most important, however, was that defendants appealed initial deportation orders decided by the U.S. commissioners to federal courts. Once there, federal judges tended to use the standards of evidence and rest the burden of proof as the courts did in criminal proceedings, rather than civil ones.59 This made it easier for Chinese immigrants to argue their cases successfully. People of Chinese descent had great success overturning their deportation orders, because, through their appeals, the courts made the civil proceedings of Chinese exclusion more like criminal ones.
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