At the same time the Court upheld the appeals process under general immigration law, however, the Court created in Yamataya a backdoor appeals process to the federal courts—called a procedural challenge.98 The Court ruled that while immigrants could not challenge the outcome of deportation hearings, they could challenge the legitimacy of the procedures. The Court added that administrative officers could not “disregard the fundamental principles that inhere in due process of law as understood at the time of the adoption of the Constitution.”99 If officers “disregarded” due process, immigrants could make a procedural challenge to the courts.
Just what the legitimacy of procedures looked like was the next question. One of the procedures that ordinarily made immigration decisions consistent with Fifth Amendment due process was the holding of a hearing. When describing it, Justice Harlan wrote, “no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends—not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act.”100 In Yamataya’s case, the Court found that her executive hearing in front of immigration agents met the standard of due process. “[T]he decisions of executive or administrative officers, acting within powers expressly conferred by Congress,” the Court asserted, “are due process of law.”101
One point the Court made in the Yamataya decision about procedural challenges was that a hearing in a language that the immigrant could not understand did not represent a procedural challenge. Part of Yamataya’s due process argument turned on the fact that her hearing had been conducted in English. Yet, the Court had no problem with the fact that Yamataya did not understand the proceedings against her. “If the appellant’s want of knowledge of the English language,” Justice Harlan wrote, “put her at some disadvantage in the investigation conducted by that officer, that was her misfortune, and constitutes no reason … for the intervention of the court by habeas corpus.”102 In other words, a hearing that an immigrant could not understand was consistent with Fifth Amendment due process standards.103
This appeals process under general immigration policy in action, even with the addition of the ability to make procedural challenges created in Yamataya, seldom worked in an immigrant’s favor and so had very little impact on the overall rate of deportations, which remained quite high. In 1913, for example, 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.104
Despite the low numbers of successful appeals, in these early decades of operating its power to deport under general immigration policy, the government only deported a few hundred to a few thousand people a year—during periods when as many as one million people annually immigrated to the United States. That there were not many deportable people in the United States was one of the most important reasons for the low deportation numbers. Except for people from China, almost everyone could immigrate lawfully.105 Another, related reason for the low deportation numbers was the way that time limits “legalized” those who entered the country in violation of immigration law.106 Congress built a one-year time limit into its deportation provisions in 1891, though it revised that limit in 1903, 1907, and 1917, eventually extending it to one to five years.107 Except for people from China, if an immigrant moved to the United States in violation of an immigrant exclusion, law protected him or her from deportability after a few years of residency in the United States.
By 1904, then, the proceedings under general immigration law were defined in large part by the appeal process. Under general immigration law a deportation appeal went to the secretary of commerce and labor and not to the federal courts (unless the immigrant had a procedural challenge or a constitutional challenge).108 The difference between a procedural and substantive claim was important to taking a case to the federal courts. A procedural challenge under general immigration law was limited to asking if the immigrant had had a hearing or not. Insufficient evidence was not a claim the courts generally accepted. Matters of fact and the issue of whether the decision itself was justifiable could not be questioned.109
Folding Chinese Exclusion into General Immigration Policy
After decades of administering two parallel deportation policies, in their efforts to carry out more deportations of people of Chinese descent, immigration officers turned to a strategy of arresting Chinese immigrants under general immigration policy. As the Bureau of Immigration’s Annual Report recorded in 1912, the “Chinese who might enter the United States in violation of law should be dealt with precisely as were the members of other races charged with the same offense.” The report continued, “all Chinese charged with surreptitious entry should have their right to be and remain in the United States determined by the Department warrant of arrest procedure, rather than by the long drawn out and expensive judicial hearing process.”110 The new enforcement strategy, immigration agents hoped, would put a stop to the ways Chinese immigrants had been using the federal courts so effectively to overturn many deportations. Part of the government’s strategy first depended on finding a way around the explicit racial category established in the Chinese exclusion laws.
In 1909, immigration officials took their first steps to what would, just a few years later, lead them to fold Chinese exclusion into general immigration policy when they arrested four Chinese immigrants under general immigration law rather than the laws of Chinese exclusion.111 A man named Wong You was one of the four. Officials charged Wong on the grounds that he had entered the United States without inspection—a provision of general immigration law—crossing the U.S.-Canada border near Malone, New York. Officials then processed Wong under deportation proceedings of general immigration policy. The Board of Special Inquiry found against him and ordered Wong’s deportation. Technically, he was charged with violating the Immigration Act of 1907, for entering the United States surreptitiously.112
Wong You hired a lawyer and appealed his case and asked the federal courts the new legal question about the jurisdiction of Chinese exclusion and general immigration law. His case hinged on the fact that Congress designed the Immigration Act of 1891 to regulate “immigration, other than those concerning Chinese Laborers.”113 In 1893, in a revision to the general immigration law, Congress reasserted this division by adding the phrase “that this act shall not apply to Chinese Persons.”114 Wong’s lawyers argued that since he was Chinese, he could only be deported under the procedures of Chinese exclusion. Wong You’s legal strategy, therefore, attempted to use the ways that immigration law constructed a racial class. In doing so, Wong and his lawyers hoped to protect Chinese immigrants’ appeals to the federal courts.
Wong’s lawyers attacked the new enforcement strategy in the lower courts. At the first stage of the appeal in the federal courts, Wong lost. George W. Ray, the judge in the federal court for the Northern District of New York, sustained the government’s case. Wong and his lawyers then appealed the case to the circuit court of appeals, which reversed the lower court’s decision, holding that Chinese laborers could be processed only under the Chinese exclusion laws.115
Immigration officials, whose efforts were made more determined by what they understood as a growing Chinese immigration crisis across their borders, appealed Wong’s victory to the Supreme Court. “The importance of securing a decision favorable [in Wong You] to the Government,” the then–commissioner general of the Bureau of Immigration Daniel Keefe wrote, “is well illustrated by the statement in the report of the United States commissioner of immigration for Canada.” Just the year before Wong You reached the Supreme Court, therefore, immigration authorities worried that Chinese immigration through Canada as well as Mexico would “constantly increase in the future”