This article is also available in Chinese, here.
It was no coincidence that President Donald Trump announced on the campaign trail that he would seek to end birthright citizenship via executive order on the heels of the 125th anniversary of the Supreme Court’s decision in United States v. Wong Kim Ark. For well over a century, Congress, the courts, the executive branch, and the American public have understood and adhered to the principle set forth by the Court in 1898 that U.S. citizenship is automatically conferred to anyone born in the United States (except the children of diplomats and occupying foreign powers). Trump’s Executive Order No. 14160, however, distorts the Wong Kim Ark decision, apparently in the belief that the Court’s language provides a blueprint to limit birthright citizenship only to the children of U.S. citizens and lawful permanent residents (“LPRs” or green card holders). Not so.
Despite the fact that the 14th Amendment’s citizenship clause does not include the words “permanent,” “domicile,” or “residence,” the government has argued that the Supreme Court in Wong Kim Ark was “careful to cabin its actual holding to the children of those with a ‘permanent domicile and residence in the United States,’” because that is how the Court described Wong Kim Ark’s parents’ legal status. Therefore, it stands to reason, says the government, that only children of U.S. citizens or lawful permanent residents are eligible for birthright citizenship.
By doing so, the government attempts to draw a fraught analogy between lawful permanent residents of today and Wong Kim Ark’s parents. While some of the words sound the same (“permanent domicile and residence” and “lawful permanent resident”), they have completely different legal meanings. To retcon Wong Kim Ark’s parents as the equivalent of current day green card holders is both legally and historically mistaken.
Wong Kim Ark’s parents did have a fixed address in the United States (751 Sacramento St. San Francisco, CA), which the Court in 1898 described as their “permanent domicil and residence.” But that is where the similarities end; as we discuss below, that address was far from permanent.
Chinese migrants like Wong’s parents did not have anywhere near the same rights or responsibilities as modern-day green card holders.
First and foremost, today’s green card holders have a pathway to U.S. citizenship. Although Congress in 1868’s Expatriation Act stated, “this Government has freely received emigrants from all nations, and invested them with the rights of citizenship,” this was not true for any immigrant from Asia, including Wong Kim Ark’s parents. Chinese migrants were implicitly or explicitly prohibited from citizenship by the Naturalization Act of 1790 (which limited naturalization to free white persons), by treaty, by the Chinese Restriction (often better known as “Exclusion”) Act of 1882, and later Supreme Court precedent.
Second, today’s green card holders are free to travel outside the United States and return, something that Chinese migrants, beginning in the 1880s could not easily do. Todays’ LPRs may travel internationally on the condition that they return to the United States or abandon their green cards. For Chinese migrants in Wong Kim Ark’s time, however, the United States made it extraordinarily onerous to leave and return. They were required under the 1882 Exclusion Act to obtain “Certificates of Reentry” in order to leave the United States and return. To obtain such certificates, Chinese people had to have White persons bear witness to their status. The Supreme Court in Fong Yue Ting v United States upheld this requirement even against a Chinese man placed in deportation proceedings because he did not know any White people who could attest and was unable to obtain the necessary signatures.
In another case, a longtime California resident, Chae Chan Ping, left for a visit to China with a valid certificate of re-entry in 1887, and, and while he was on a ship returning to San Francisco a year later, a new statute passed invalidating all reentry certificates, his included. The Supreme Court in 1889 upheld Chae Chan Ping’s exclusion, writing of Chinese migrants, “they remained strangers in the land, residing apart by themselves and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people or to make any change in their habits or modes of living.”
In 1895, the Court affirmed the exclusion of Lem Moon Sing, who, like Wong Kim Ark’s parents, was a Chinese merchant described by the Court as having “permanent domicile” in San Francisco, but who was refused entry back to the United States after a visit to China. Upholding a border officer’s decision, the Court stated that Lem “cannot, by reason merely of his domicile in the United States for purposes of business, demand that his claim to reenter this country” be decided by the courts. It is clear that many Chinese people who purportedly had “permanent domicile and residence” during this period, lost that right as soon as they left the United States, distinguishing them from today’s lawful permanent residents.
Third, green card holders may petition for their children and spouses residing overseas to join them permanently in the United States, conferring upon those relatives their own pathway to citizenship. For Chinese migrants in the United States at the turn of the century, however, the inability to reunite with family members compelled circumvention of discriminatory laws and created a whole generation of “paper sons” – aspiring immigrants who paid U.S. born Chinese Americans to pretend to be their birth fathers in order to claim derivative U.S. citizenship. Indeed, these discriminatory anti-Chinese laws transformed today’s so-called “model minorities” into our nation’s first “illegal aliens.”
Meanwhile, today’s LPRs must all demonstrate admissibility, which means they are carefully scrutinized on a variety of criteria including health-, national security-, and public safety- related grounds. LPRs are required to pay federal income taxes, and men 18 to 26 must register for selective service. Green card holders are entitled to live permanently in the United States, work at any legal work of their choosing (with the exception for certain national security jobs), and be protected by all the laws of the United States and state and local jurisdictions. As we outline below, many of these privileges were largely to denied to Chinese migrants.
Chinese Migrants like Wong’s parents faced draconian legal restrictions and ethnic cleansing and did not have the protections of law afforded to immigrants today.
Wong Kim Ark’s parents lived in the United States at a time when Chinese migrants faced xenophobic sentiment, accompanied by widespread violent attacks, expulsions, lynchings, and systematic legal restrictions. Chinese migrants first arrived in the United States in large numbers beginning in 1849, lured by the prospect of riches from the California Gold rush and, through grueling and often deadly labor, built the most dangerous portion of the transcontinental railway at a cost of over a thousand dead. When this project was completed, America was united from west to east for the first time, and travel time dropped from seven months to seven days. This set the stage for the United States to emerge as a worldwide economic and political powerhouse.
But these contributions did not mean acceptance. California, in particular, enacted an increasingly restrictive series of prohibitions specifically targeting Chinese migrants and generated contentious litigation resulting in watershed civil rights decisions. These included: a ban on Chinese children attending public school (Tape v. Hurley); a ban on Chinese people testifying in court against White people (People v. Hall) (effectively making it impossible to convict a white person on charges of assaulting or killing Chinese people); and a ban on Chinese people working for any California company or in any public sector job, both of which were enshrined in the 1879 California Constitution in a section simply captioned, “Article XIX. Chinese.” Additional restrictions included bans targeting Chinese Laundries (resulting in the landmark Yick Wo v. Hopkins, which held a facially neutral law could be discriminatory), and even the shearing of braided hair worn by Chinese in queues (Ho Ah Kow v. Nunan, the so-called “Pigtail Ordinance”).
The same vitriol aimed at immigrants today (in particular, use of the term “invasion” by the president) was directed at Chinese who were accused of arriving in overwhelming numbers to steal jobs from Americans and threaten our way of life. The Supreme Court in the Chae Chan Ping case acknowledged the outcry from California politicians who described Chinese immigration then, much as the president does about other immigrant communities today, as “approaching the character of an Oriental invasion.”
In October 1871, nativist anger erupted into mob violence as approximately 19 Chinese people were killed in Los Angeles in one of the largest lynchings in American history. Elsewhere throughout the American west, nearly 30 Chinese people were murdered in the 1885 Rock Springs massacre in Wyoming, and the same year in Tacoma, Washington, anywhere between 150 to 200 Chinese people were expelled at gunpoint and their dwellings burned to the ground. These were not one-off race riots. According to historian Beth Lew Williams, between 1885-1886, at least 168 communities across the U.S. west drove out their Chinese residents. This was nothing short of ethnic cleansing, but far less known than the violent removal of Native Americans from their lands and later Japanese incarceration.
Indeed, in stark contrast to the government’s current day description of Wong’s parents as having “permanent residence,” they returned to China shortly after his birth, and as historians have suggested, in the aftermath of an anti-Chinese pogrom in July of 1877. A mob of hundreds attacked San Francisco’s Chinatown, and in the words of the New York Times, they had “resolved to exterminate every Mongolian and wipe out the hated race.” Businesses were looted and torched and four Chinese were killed. Historians recite a systematic wave of anti-Chinese violence and expulsions across the west coast that could fairly be described as a campaign of ethnic cleansing. According to Professor Amanda Frost, Wong Kim Ark’s parents “likely never considered America to be their permanent home, however, and for good reason. ‘The Chinese must go,’ became the populist slogan of the California’s Workingmen’s Party.”
At the time of Wong Kim Ark’s parents’ arrival in San Francisco, there was no federal immigration law as we know it today and the U.S. essentially had open immigration. There was no such thing as visas or green cards; no such thing as ICE or INS, no border controls, no Ellis Island, and no concept of “illegal immigration” (notwithstanding 1803 and 1807 bans on importation of enslaved persons: which as Professors Jack Chin and Paul Finkelman argue, gave rise to illegally trafficked persons whose children were later granted citizenship under the 14th Amendment). While the presence of Wong’s parents was federally permitted under the1868 Burlingame Treaty (designed to allow U.S. business interests to have access to markets in China), Congress soon enacted the nation’s first restrictive immigration law – the Page Act of 1875 which forbade Chinese women from entering the United States. The law, ostensibly designed to curtail alleged prostitution from Asia, had the effect of preventing Chinese men already in the United States from being able to marry and have children, and in fact necessitated their return to China if they wished to marry and start a family. It was under these circumstances that Wong Kim Ark himself returned to China to marry and visit his family, and was stopped on his return, leading to the Supreme Court case that bears his name.
This history is important to understand as it continues to be repeated. While laws like the Chinese Exclusion Act were believed to be a relic of the late 19th Century, in 2025 a bill in Congress has been introduced that would bar visas from being issued to any Chinese student. Together with resurgent alien land laws (also reminiscent of early 20th century property bans on Asians) the United States appears to be ushering in a new era of Chinese Exclusion 2.0.
The Administration will not find support from Wong Kim Ark to justify disparate treatment based on differing immigration status.
Other authors on Just Security have tracked arguments regarding the merits of arguments about what the 14th Amendment’s “subject to the jurisdiction of the United States” provision means. While that is not our focus, understanding the historical context in which the case of Wong Kim Ark’s parents was decided can be instructive here too in analyzing EO 14160’s harsher treatment of those who are undocumented or lawfully present in the United States but not LPRs. For example, while some supporting the administration’s views have urged that only those who pledge full political allegiance to the United States are covered by the 14th Amendment, remember that the Supreme Court also described Wong’s parents as “subjects of the Emperor of China.” Moreover, because there was no distinction between legal and undocumented immigration at the time of his birth, the administration can draw no support from the Wong Kim Ark case to deprive current day undocumented persons from access to birthright citizenship. The 1868 Burlingame Treaty also provided that “Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities…” (emphasis added) – in other words, Chinese tourists in the 1870s had the same rights as those wishing to remain longer. Thus, EO 14160’s treatment of lawfully present non-citizens (including those here on student, work, or tourist visas) finds no solace in Wong Kim Ark.
EO 14160 would have a devastating and disproportionate effect on today’s Asian American population.
If EO 14160 is upheld, the impact on today’s Asian American community would be devastating. 68 percent of Asian American adults in the United States are immigrants. Asian immigrants of all legal statuses account for a substantial percentage of the United States’ overall immigrant population: they make up an estimated 17 percent of undocumented immigrants, and more than 88 percent of individuals holding H1-B visas for specialized occupations especially in the STEM fields were born in Asia. A majority of international students in the U.S. hail from Asia. Children of immigrants from any of these categories are excluded from birthright citizenship under EO 14160. With over 108,000 young persons born in Asia eligible for DACA protections, their children would be barred under the Order. These Asian Americans know no other country of allegiance and have been educated and raised by immediate family in the United States. Shockingly, the government cites to policy positions that mischaracterize undocumented persons as “individuals who lack any meaningful ties to the United States.” Ask that of Tereza Lee, the Korean American who was born in Brazil, and brought to the United States at two years old. She is the original “Dreamer” and an inspiration for the popular and bipartisan DREAM Act.
Finally, a note about refugees and asylees. In addition to abolishing birthright citizenship, Trump has also suspended refugee admissions. After the influx of European refugees fleeing post-World War II Europe, a majority of refugees arriving later in the United States have been from Asia. For example, following the Vietnam War, nearly three million persons from Southeast Asia fled war and persecution in their homelands to seek refuge in the United States, including many who fought alongside the U.S. military. Today, China is among the top three leading countries of nationality for persons granted asylum in the United States. Asylum seekers, regardless of the mode of entry, have fled persecution abroad and affirmatively sought the full physical and political protections of the United States. In other words, they are pleading for the right to give obedience and allegiance to the United States. By law, asylum seekers cannot travel to their home countries, or even renew their old passports, without risking their asylum claims or status, lest they avail themselves of any of the privileges of their origin country’s citizenship. For asylees, once they are in the United States, they are here to stay and to become Americans. When granted asylum, they too, have a pathway to U.S. citizenship, and asylees (together with refugees) have some of the highest rates of naturalization of any class of immigrants, demonstrating that overwhelmingly, their allegiance all along has been to the United States and not their prior countries, where they experienced persecution.
The origin story of U.S. immigration law is one that firmly has its roots in the exclusion of Chinese migrants and the literally thousands of cases filed by them to vindicate their rights. These cases laid the foundation for today’s immigration legal regime, including the border control and enforcement mechanisms we know today. It was not until the Immigration Act of 1891 that the federal government assumed direct control over the inspection and admission of immigrants. The 1891 Act was designed to expand upon the Chinese Restriction (Exclusion) Act of 1882 to bar those other than Chinese including: “all idiots, insane persons, paupers, or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony …polygamists,” among others. It is telling that the first Supreme Court case upholding the 1891 Act and the federal government’s sweeping new immigration powers was Nishimura Ekiu v. United States, involving a Japanese woman who was denied entry under the law.
The 20th century brought the 1924 Immigration Act and a permanent bar on migration from Asia along with widespread policies in states with Asian immigrant populations prohibiting them from purchasing real property (so called “alien land laws”) – another sign that the United States never intended Asians migrants to have an enduring or permanent presence in this country.
The 14th Amendment was a crown jewel of Reconstruction, through which America refashioned itself out of the ashes of the Civil War. Central to this was the question of citizenship status of the 4.5 million formerly enslaved African Americans and their children. Because of Dred Scott, it was critical that the answer be contained in the Constitution. And so, the straightforward language that proclaimed all those born in the United States as citizens became the highest law in the land. When the Supreme Court deliberated for more than a year on Wong Kim Ark’s fate, one of the overhanging questions was of the status of the children of non-naturalized white immigrants. If Wong Kim Ark was denied citizenship, chaos would ensue, as Professor Frost argued, and hundreds of thousands of children of European migrants who had not renounced their loyalties to Britain, Germany or France or other nations, would not be citizens. The Court’s answer was to craft a straightforward rule that would lay the foundation of the new America that was to emerge – a nation which included those born on its soil – Black, White and, yes, even Chinese. For the court to rule otherwise would return America to the exclusionary legal architecture of Dred Scott The 14th Amendment and the Supreme Court now sent a new message: While African Americans had previously never been imagined as being part of the American polity and Chinese migrants could not even naturalize – now their children would be American citizens by birth. A new nation had emerged.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions