Chinese Exclusion (1882) Is Followed by Expulsion (1892)

     The 1882 Chinese Exclusion Act failed to stem the tide of Chinese immigration that posed a  great threat of cheap labor taking jobs from white labor. Ironically, in the 1860s, American tycoons recruited thousands of Chinese laborers to help build the Transcontinental Railroad. Upon its completion in 1869, Chinese railroad workers moved to build peripheral railroads as well as entered other occupations including mining, fishing, farming, lumbering, and manufacturing, fields which they were eventually barred from forcing hundreds to run hand laundries and later, Chinese restaurants.  In 1892 when the original Chinese Exclusion Act was due to expire, Thomas Geary proposed a 10-year extension known as the Geary Act which required all Chinese in the United States:

1. to have 2 white witnesses attest that he was not illegal and apply for a Certificate of Residence bearing his photograph

2. and, if stopped by the collector of revenue (later replaced by the Customs Office) without their Certificate of Residence, face a fine up to $1,000,

 3. and be jailed for up to a year of hard labor,

 4. and finally be deported.   

    Chinese strenuously objected to this draconian law. The Chinese Six Companies advised the Chinese to resist this demeaning law, which essentially required them to wear what amounted to a “dog tag.” Furthermore, it was proposed, but not approved, that Chinese detained when attempting to enter the country could no longer file a writ of habeas corpus, which previously enabled many to circumvent immigration requirements.

    The Geary Act raised fears of the threat of work stoppages, reduced cotton trade, and possible violence toward American missionaries in China. The China Equal Rights League vigorously protested the Geary Act, and one of its leaders, a laundryman named Fong Yue Ting along with Wong Quan, and Lee Joe went to the U.S. Marshal's office in Manhattan in 1893 to turn themselves in as illegal residents.  The judge ordered them deported and their lawyers immediately appealed the decision on the grounds that the deportation order was done without due process.  Fong Yue Ting v. United States went to the U.S. Supreme Court where Joseph Choate, the lawyer for the Chinese challenged the constitutionality of the ruling.

    Justice Horace Gray held that Congress had the power to deport, and that power is absolute and unqualified, following an earlier ruling in Chae Chan Ping v. United States (1889) of plenary power which does not allow appeals of government decisions. Ping had made a trip to visit China and held a Certificate of Residence that entitled him to reentry, but he was denied on the argument that prohibiting immigrants from re-entering the country was an exercise of sovereignty. In the case of Fong Yue Ting, the U.S. Supreme Court held that immigration expulsion was so closely aligned with immigration exclusion that it fell within the realm of Congress's plenary power over matters related to foreign relations. The court did not view deportation as a punishment arguing that it was but a method of "enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation acting within the Constitutional Authority as determined is continuing to reside there."

    In other words deportation merely an administrative process, and not a criminal ruling, which would trigger 5th Amendment protections. However, returning unauthorized immigrants to their country of origin is not subject to due process protections. Dissenting Justice Stephan Field, who in many past cases defended Chinese exclusion, maintained that deportation went too far. He challenged the view that deportation was merely an administrative process because it involved deprivation of liberty, and removal from home, family, business, and property.

    Ultimately, what saved the Chinese from the full application of the Geary Act was the enormous financial cost of identifying, arresting, detaining, imprisoning, and deporting all unlawful Chinese immigrants. The estimated cost was more than six million dollars, far exceeding the $50,000 Congress had allocated for enforcement of the Geary Act.  There was no option but to order U.S. Marshals and Customs officers to refrain from enforcing the Geary Act. 

    The Fong Yue Ting ruling dealt with the deportation provision of the Geary Act but did not address the legality of the imprisonment component. The Chinese Six Companies challenged Section 4 of the Geary Act which allowed judges to send deportees to prison while awaiting deportation. In1892 Wong Wing, Lee Poy, Lee You Tong, and Chan Wah Dong walked into the offices of the US Marshal in Detroit and admitted to an unlawful residence in the United States and did not have Certificates of Residence. They were sentenced to serve 60 days in jail and then deported, a ruling which was immediately appealed.

    Wong Wing v. United States took four years to reach the Supreme Court where lawyer Frank Canfield challenged a deportation hearing as not meeting the Constitutional requirements for depriving persons of their liberty and that the Constitution guarantees due process to every person subject to imprisonment. No person, regardless of immigration or citizenship status, can be summarily be imprisoned without a jury trial and protection from cruel and unusual punishment. 

    The U.S. Supreme Court ruled in the case of Wong Wing v. United States that unlawful residence was not a crime. Unlawful residents who had committed no crime should not be subject to criminal punishment. The Court, therefore, prohibited federal judges from sentencing deportees to prison prior to deportation. If arrested Chinese cases were summarily adjudicated, they could still be forcibly removed from the country, but could not be imprisoned awaiting deportation.

    Wong Wing v. United States decriminalized unlawful residence within the United States and prohibited imprisonment as a practice of US immigration control, a view that remains valid to this day.

     The Wong Wing ruling on May 18,1896 attracted little public attention perhaps because it was overshadowed by the ruling on the same date of the Plessy v. Ferguson, 163 U.S. 537, decision that established the “separate but equal” doctrine regarding public facilities for whites and blacks. It reasserted white supremacy in the face of black emancipation and defined the basic architecture of race relations in the United States for many decades.

    Since 1896 there have been nearly 50 million deportations and forced removals from the United States. Despite the Wong Wing v. United States decision, most of today's deportees, largely Hispanic rather than Chinese, were forcibly confined within one of the nation's carceral facility between capture and deportation. In Los Angeles alone, the jails are so clogged with persons awaiting deportation that the Immigration and Customs Enforcement (ICE) has contracts with private companies to cage the overflow of detainees. Defenders of this practice hold that it is "not imprisonment in a legal sense."

For more information:

Kelly Lytle Hernandez. City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965. University of North Carolina Press Chapel Hill, N.C.: 2017.