EastLaw: Wong Kim Ark and the children of illegal immigrants

May 18, 2011

Asian American theme monthMay is Asian American and Pacific Islander Heritage Month.  During the month of May, we’ll be looking at important legal landmarks in U.S. history relating to Asian Americans and Pacific Islanders.

For the first post on Chinese Exclusion, click here.

For the second post on Yick Wo v. Hopkins, click here.

It’s no secret that immigration, or more specifically, illegal immigration is a hot political topic today.

One issue that is especially contentious among some groups is the Fourteenth Amendment’s conference of U.S. citizenship to persons born on American soil, regardless of whether their parents are illegal immigrants.

In fact, as recently as 2009, a constitutional amendment was unsuccessfully introduced in the Senate requiring that at least one parent of a person born in the U.S. be a lawful resident.

Why is a constitutional amendment, instead of a simple act of Congress, needed to change the law on this matter?

Because of United States v. Wong Kim Ark.

Decided in 1898, the case dealt heavily with the Chinese Exclusion Acts discussed earlier this month.

Wong Kim Ark, the son of two Chinese immigrants, was born in the U.S.

Wong’s parents returned to China in 1890, and Wong followed, but only for a short-term visit.

Wong returned the same year, and was granted entry to the country without issue.

Wong again visited China in 1894, but this time, when he tried to return, he was denied entry.

While the Court opinion doesn’t specify why this happened, it is most likely because of the passage of the Geary Act in 1892, which required all Chinese residents, citizens or not, to prove their lawful residence upon request with a “resident permit.”

A federal appellate court ruled for Wong Kim Ark, and the government appealed the case to the Supreme Court

To come to a ruling, the Court had to interpret whether the Fourteenth Amendment truly granted Wong citizenship, despite being born to two non-citizens who were ineligible to ever become citizens.

While the text of the Fourteenth seems fairly simple on the issue, the Court still discussed how that text be interpreted.

The majority followed English common law, which held that all children born in the country were citizens, unless one of several more obscure exceptions applied (born of foreign diplomats, etc).

Because none of these exceptions applied to Wong, the Court found that he was a U.S. citizen by virtue of his being born therein.

The case was significant at the time, since the Chinese Exclusion Acts had intended to keep all Chinese, citizen or not, out of the country.

Surprisingly, the case is still controversial today within certain circles.

Some of the opposition to the 113-year-old ruling is ideological (i.e. that children should retain the citizenship of their parents).

However, much more of the discussion about any error of the decision is more focused on a specific issue, namely, President Obama’s citizenship (a Google search of the case reveals quite a few results on the matter).

Wrongly decided or not, U.S. v. Wong Kim Ark was decided, and shows no indication of being overruled.

The case stands as another example of how the struggles of Asian Americans brought civil rights advances for all Americans; it is directly responsible for granting citizenship to millions of immigrants since it was handed down.

In short, the case allowed millions of immigrants to pursue their dreams in America.