"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
As immigrants and their families continue to grapple with Donald Trump’s intent to end birthright citizenship, one Chinese-American’s 1898 case makes the prospect of such a move not so simple.
Wong Kim Ark, a restaurant cook who was born in San Francisco, was barred from reentering the U.S. after a trip to visit his parents in China. Ark was arrested, and his case eventually made it to the Supreme Court, where judges ruled that under the 14th Amendment, anyone born in the U.S. is automatically a citizen.
Though Trump claimed he could sign an executive order to revoke the current birthright citizenship policy, Ark’s case set a precedent that’s remained the law of the land for more than a century. In fact, the policy could likely only be changed through a constitutional amendment.
“The bigger issue for us as a country is how do we create more pathways to citizenship, not whether we should cut it off,” Aarti Kohli, executive director of Advancing Justice ― Asian Law Caucus, told HuffPost. We have a lot of people who already call America home who should have the opportunity to become citizens.
DEPARTMENT OF JUSTICE/NATIONAL ARCHIVES
Wong Kim Ark, a cook born in San Francisco, was barred from reentering the U.S. after visiting his parents in China.
Ark’s parents had arrived in the U.S. from China during a time of fierce anti-Chinese sentiment. The era had birthed the Chinese Exclusion Act, legislation that put a 10-year moratorium on Chinese labor immigration. The act also barred courts from granting Chinese immigrants citizenship.
Ark’s parents came to the country seeking U.S. citizenship but eventually left after the act had cut off any pathway to citizenship status. They had also feared the vigilante violence that often targeted Chinese immigrants at the time. In fact, the largest lynching in American history occurred in 1871. Hundreds had descended upon Los Angeles’ Chinatown, and the mob lynched an estimated 17 to 20 Chinese immigrants.
But Ark himself had a life in the United States, and, though he had traveled to China before and had been readmitted into the U.S. without any issues, his 1895 trip presented a host of problems. Authorities ordered the Chinese-American to return to the ship.
Chinese immigrant aid organization Six Companies stepped in to provide Wong legal help. Wong’s lawyer, Thomas D. Riordan, argued that the cook’s reentry into the U.S. was protected under the 14th Amendment. As the case escalated to federal court, immigration hard-liners fought back, claiming Ark’s “accident of birth” didn’t mean citizenship.
In the end, the U.S. Supreme Court ruled in favor of Ark.
“If the Trump administration issued an executive order, it would be immediately challenged in the courts, and judges would likely rely on Wong Kim Ark to find the executive order unconstitutional,” Kohli said.
Many conservatives and even officials appointed by Trump himself disagree with the president’s stance on birthright citizenship.
“The plain meaning of this language is clear,” James Ho, whom Trump appointed as a federal appeals court judge, wrote in 2011 of the 14th Amendment.
Ho, then a solicitor general of Texas, wrote that “a foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey US law.”
House Speaker Paul Ryan (R-Wis.) addressed Trump’s comments, telling a Kentucky radio station earlier this week that “you cannot end birthright citizenship with an executive order” ― to which Trump responded that Ryan “knows nothing about” birthright citizenship.
Kohli pointed out that those who oppose birthright citizenship are in the minority.
“It’s clear that most Americans have embraced birthright citizenship and believe that anyone who is born here should have the right to be a citizen. A few political leaders are trying to further a white supremacist agenda and create a ‘fix’ to a problem that doesn’t exist,” she said.
What’s more, “Many scholars have noted that birthright citizenship has helped the U.S. integrate each new wave of immigrants as their children are recognized as U.S. citizens.”
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While some have made the specious argument that Wong Kim Ark didn’t resolve the question for all time because his Chinese parents were legally residing in the U.S. at the time of his birth, that particular fact was not found to be significant or determinative by the Court. The sole exception they carved out was for foreign diplomatic officials and occupying enemy aliens in time of war, neither of whom were subject to the jurisdiction of the US. But, as former DOJ immigration litigator Leon Fresco has pointed out elsewhere, undocumented residents of the U.S. are subject to the jurisdiction of the U.S. legal system in the numerous ways — most notably, they can be arrested, detained, removed, convicted, imprisoned, and are required to comply with all other laws applicable to persons in America. Indeed, most of them pay taxes in some form or another. Moreover, the absurdist arguments advanced by Trump and his White Nationalist restrictionists would effectively deprive the U.S. of jurisdiction to enforce immigration and criminal laws against undocumented residents!
