ASIAN IMMIGRANTS IN
AMERICAN LAW: A LOOK AT
THE PAST AND THE CHALLENGE
WHICH REMAINS
CHIN KIM*
BOK LIM C. Ki**
I.
INTRODUCTION
The contributions of Asian Americans' to the growth of the nation
despite the history of their painful adjustment to the American lifestyle are a triumph over adversity that has received scant recognition
in recent years. 2 In this bicentennial period, it is appropriate to look
back at the struggle of Asian Americans for equal rights in a country
whose major historical theme has been concern for human liberty.
Lest we become complacent about the great progress in Asian American rights in this century, however, we should also take this opportunity to examine those areas in American law where it may be said
that the struggle continues. The objectives of this article are therefore
* LL.B., 1951, Korea University; A.B., 1954, Florida Southern College; M.C.L., 1955,
George Washington University; LL.M., 1956, J.S.D., 1958, Yale University; M.S., 1967,
Columbia University; Professor of Law and Library Administration, University of Illinois, Urbana-Champaign.
** B.A., 1954, Cornell College; M.S., 1956, Columbia University; P.A.S., 1964, Smith
College; Associate Professor of Social Work, University of Illinois, Urbana-Champaign.
The authors wish to acknowledge and express their gratitude for the research assistance
given them by Mr. Timothy 0. Kearley, J.D., 1976, University of Illinois.
1. The definition of Asian Americans remains necessarily broad and flexible. It has
traditionally included the Chinese and Japanese and more recently the Filipino,
Korean, and Vietnamese. See J. Lott, Factors to Consider in a National Concept of Asian
Americans (Feb. 1976) (H.E.W. publication); CALIFORNIA ADviSORY COMM. REP. TO
THE U.S.
COMM'N ON CIviL RIGHTS,
ASIAN AMERICANS AND PACIFIC PEOPLES: A
CASE OF MISTAKEN IDENTITY (1965).
2. See generally
FUJImOTO AND OTHERS, ASIANS IN AMERICA: A SELECTED AN-
NOTATED BIBLIOGRAPHY (1971) [hereinafter cited as FUJIMOTO]; P. Ong & W. Lum,
Theses and Dissertations on Asians in the United States with Selected References to
Other Overseas Asians (Sept. 1974) (unpublished manuscript in Dep't of Applied Behaviorial Sciences, Univ. of Cal., Davis).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
twofold: to survey briefly the mileposts along the way to equality for
Asian Americans, then to present in greater detail those issues remaining which touch upon the legal status of Asians in the United
States.
The record of ethnic discrimination against Asians can be said to
have ended in 1974 with the United States Supreme Court's decision
in Lau v. Nichols. 3 This case held that the failure of the San Francisco Unified School District to provide special assistance to Chinese-speaking students denied them an equal education. 4 The Supreme
Court said, "there is no equality of treatment merely by providing
students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education." 5 The Lau decision is a landmark in the legal history of Asians in America. A half century after
Gong Lum v. Rice, 6 in which the Court established a policy sanctioning discriminatory treatment of Asian Americans in education, it completely reversed itself by securing for them full equality. It was one of
the most significant decisions to accord Asian immigrants equal educational opportunities.
Asian immigrants brought with them to the United States a cultural
heritage in which the concept of civil rights was fundamentally foreign.7 They bore also an ethnic stereotype as submissive, self-reliant
people whose ways were strange and whose feelings were "inscrutable." Lau and cases like it which are reviewed here bear witness to
the adaptability of Asian Americans in translating their interests and
asserting their rights through the adversary process.
3. 414 U.S. 563 (1974).
4. The lack of special assistance violated regulations and guidelines issued by the
Secretary of Health, Education and Welfare pursuant to Section 602 of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d-1 (1970).
5. 414 U.S. at 566. For discussion of Lau, see Note, 2 FORDHAM URB. L.J. 122
(1973); 62 CALIF. L. REV. 157 (1974); 60 A.B.A.J. 472 (1974). Bilingual and bicultural
education is an issue that received some attention before Lau v. Nichols. See Montoya,
Bilingual-Bicultural Education: Making Equal EducationalOpportunities Available to
National Origin Minority Students, 61 GEO. L.J. 991 (1973) (background of bilingual
and bicultural education).
6. 275 U.S. 78 (1927).
7. Kawasbima, The Status of the Individual in the Notion of Law, Rights, and Social
Order in Japan, in THE STATUS OF THE INDIVIDUAL IN EAST AND WEST 429-31 (C.
Moore ed. 1968). Japanese vocabulary contained no equivalent word for "right" until
the Dutch word "regt" was translated into Japanese as "kenri." Id. at 430. The word
found its way into Chinese as "ch'uanli." Henderson, Japanese Influences on Coinmunist Chinese Legal Language, in CONTEMPORARY CHINESE LAw: RESEARCH
PROBLEMS AND PERSPECTIVES 158, 167 (J. Cohen ed. 1970).
ASIAN IMMIGRANTS
19771
Discussion of current issues begins with the Immigration and Nationality Act of 1952.8 That Act was amended substantially in 1965 to
abolish the national origins quota system, which had operated largely
to restrict the flow of immigration from Asia to the United States. 9
Since 1965, Asians have immigrated to the United States on an equal
footing with other nationalities and ethnic groups. They have also
shared the burdens of discrimination in private and public employment inflicted upon all aliens in the United States, which only recently have been lifted.1 0 Discrimination against aliens in the granting
of licenses to engage in certain livelihoods, particularly the licensing
of aliens to practice law and medicine, remains an unresolved issue
which concerns Asian immigrants. 1 ' Additionally, the Immigration
and Nationality Act itself contains provisions relating to citizenship
status, adoption of alien children, and admission of Indochinese refugees for permanent residence which bear reexamination with a view
to further reform.12
The Civil Rights Act of 196413 included aliens and persons of oriental ancestry in its broad sweep,14 but the thrust of this legislation was
to prohibit denial of their rights rather than to promote their full
participation in American life. Recent legislative initiatives have
sought to provide assistance to aliens coming to the United States as
immigrants. 15 These efforts will be examined at the end of the
article. 16
8.
Ch. 477, §§ 101-407, 66 Stat. 163 (1952) (current version at 28 U.S.C. §§ 1101-
1552 (1970)).
9. Act of 1965, Pub. L. No. 89-236, 79 Stat. 911 (contained in various sections of 8
U.S.C. (1970)). In signing these amendments into law, President Johnson explained
their purpose as follows:
[to] repair a very deep and painful flaw in the fabric of American justice. It corrects
[Flor over
a cruel and enduring wrong in the conduct of the American Nation ....
four decades the immigration policy of the United States has been twisted and has
been distorted by the harsh injustice of the national origins quota system. . . . [Ilt
will never again shadow the gate to the American Nation with twin barriers of prejudice and privilege ....
1 WEEKLY COMP. OF PREs. Doc. 364-65 (1965).
10. See notes 68-92, 137-145 & accompanying text infra.
11. See notes 146-158 & accompanying text infra. The word immigrant will be used
to denote an alien who has been legally admitted and wishes to reside permanently in
the United States.
12. See notes 114-133 & accompanying text infra.
13. Pub. L. No. 88-352, 78 Stat. 241 (codified in scattered sections of 5, 7, 12, 18, 28,
42 U.S.C. (1970)).
14. 42 U.S.C. §§ 2000a(a), 2000b(a), 2000c(b), 2000d, 2000e-2 (1970).
15. H.R. 9895, 93d Cong., 2d Sess. (1974); H.R. 2522, 94th Cong., 1st Sess. (1975).
16. See text accompanying notes 166-173 infra.
THE AMERICAN UNIVERSITY LAW REVIEW
II.
A.
[Vol. 26:373
BACKGROUND
The Exclusion of Asians in American Immigration Law
Political and social upheaval in China during the mid-nineteenth
century coincided with expanding economic opportunity in the United
States to produce the first wave of Asian immigration in American
history. 17 Chinese laborers lay the track for the transcontinental railroad, worked in mines, transformed wastelands into orchards, and
reclaimed swamps for farmland.' 8 The arrival of Chinese laborers in
California in 1848 attracted little attention at first. With the completion of the railroad and an economic slump in the 1880's, however,
they became the focus of racist animosity that soon found expression
in discriminatory legislation. 19
The legislatures of West Coast states passed the earliest statutes
that held the potential to deny entry to Chinese immigrants, 20 but
the United States Supreme Court struck these down as unconstitutional encroachments on the sole power of Congress to regulate
immigration. 2 ' West Coast political groups and newspapers thus
urged Congress to take up the task of exclusion, and in 1882 the
Chinese Exclusion Act suspended admission of Chinese workers for
ten years. 2 2 Legislation over the following two decades developed by
steps into a program to stop permanently virtually all Chinese immigration. 23
17. Kim, Asian-Americans: No Model Minority, SOC. WORK, May 1973, at 44
[hereinafter cited as Kim]. It was reputed that 100,000 Chinese immigrants entered the
United States between 1850 and 1882. Jung, Legislative Enactments and Court Decisions Affecting Chinese Immigrants to the United States: Case Briefs and Commentaries
3 (1973) (publication of the Asian American Council of Greater Philadelphia).
18. See generally B. SUNG, MOUNTAIN OF GOLD (1967); B. SUNG, THE STORY OF
THE CHINESE IN AmERICA (1971).
19. Id. at 21.
20. For example, California required a shipmaster to obtain a $500 indemnity bond
against California's liability for support of certain immigrants. The bond in each case
was required only if in the Commissioner of Immigration's sole judgment upon examination of each foreign pasenger, the immigrant was insane, handicapped, ill, formerly a
public charge, likely to become a public charge, criminal, or a "lewd and debaucled
woman." The passenger was imprisoned on the ship until the bond was obtained. The
statute was repealed before the current codification of the state code. See c.1, art. 7 of
the old Political Code of California. Cf. CAL. PENAL CODE § 174 (West 1970) (landing a
Chinese or Japanese national without permit granted upon evidence that immigrant is
of good character and desires voluntarily to enter constitutes a crime) (repealed 1972).
21. Chy Lung v. Freeman, 92 U.S. 275 (1875) (state law requiring maintenance and
support bond for certain immigrants held unconstitutional encroachment on power of
Congress in immigration matters).
22. The Chinese Exclusion Act of 1882, ch. 126, §§ 1-15, 22 Stat. 58.
23. The Exclusion Act of 1902, ch. 641, §§ 1-4, 32 Stat. 176 (permanent exclusion of
1977]
ASIAN IMMIGRANTS
Japanese coming to California in significant numbers after 1880
fared no better.2 4 In 1903 the United States Supreme Court upheld
exclusion of the Japanese from immigration, 25 and practically all
Japanese immigration ceased after 1907 by virtue of the Gentlemen's
Agreement, 2 6 a treaty in which the Japanese government, at Ameri27
can urging, undertook to restrict emigration to the United States.
By 1917, the concept of Asian exclusion had become imbedded in
American immigration law. With the Chinese and Japanese effectively shut out, Congress completed the process by broadening the
from a geographic area desigexclusion to virtually all immigrants
28
nated as the "Asiatic barred zone."The Supreme Court reviewed the statutory scheme of Asian exclusion on at least three occasions and in each case found it to be a valid
exercise of the power of Congress, and Congress alone, to regulate
immigration. In The Chinese Exclusion Case,2 9 the Court upheld a
denial of reentry to Choe Chan Ping, a legal resident-alien Chinese
returning from a temporary absence abroad, despite the fact that additional articles to the treaty between the United States and China of
185830 guaranteed the free migration of Americans and Chinese beworkers and their dependents); The Exclusion Act of 1888, ch. 1015, §§ 1-15, 25 Stat.
476 (extended date of suspension of immigrating workers); The Exclusion Act of 1884,
ch. 220, §§ 1-17, 23 Stat. 115 (banned dependents of workers from immigration). See
generally VAN VLECK, THE ADMINISTRATIVE CONTROL OF ALIENS (1932).
24. See Kim, supra note 17. No record of Japanese immigration exists prior to 1861.
[1975] IMMIGRATION AND NATURALIZATION SERV. ANN. REP. 64.
25. The Japanese Immigration Case, 189 U.S. 86 (1903) (return of Japanese to Japan
by order of immigration inspector pursuant to the Act of March 3, 1891, ch. 551, 26 Stat.
1084, held proper).
26. In 1900 and again in 1908 Japan announced that passports would be denied
laborers. 37 HARV. L. REv. 372 n.4. Japan felt compelled to make this arrangement so
as to relieve the United States of the "painful embarrassment" of enacting "discriminatory legislation." 2 FOREIGN RELATIONS OF THE UNITED STATES 335 (1924).
27. When Congress passed the Immigration Act of 1924, it made no mention of the
Japanese in provisions prohibiting the immigration of other Asians. Immigration Act of
1924, ch. 190, § 4, 43 Stat. 153.
28. Immigration Act of 1917, ch. 29, 39 Stat. 874. The zone included islands east of
the Asian continent between the 10th and 20th parallels north latitude to the 160th
meridian east longitude, as well as continental territory from the 38th to the 50th parallels
north latitude and between the 50th and 110th meridians east longitude.
For a general study of the impact of Asian Exclusion, see R. MCKENZIE, ORIENTAL
EXCLUSION: THE EFFECT OF AMERICAN IMMIGRATION LAWS, REGULATIONS AND
JUDICIAL DECISIONS UPON THE CHINESE AND JAPANESE ON THE AMERICAN PACIFIC
COAST (1927).
29. 130 U.S. 581 (1889).
30. Additional Articles to the 1858 Treaty, July 28, 1868, United States-China, 16
Stat. 739, T.S. No. 48 (amending Treaty of Peace, Amity, and Commerce, June 18, 1858,
United States-China, 12 Stat. 1023, T.S. No. 46). The terms were altered again in 1880
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
tween the two countries. The Court concluded that the Scott Act of
1888,31 which Congress had enacted during Choe's absence to prohibit reentry of resident Chinese laborers, under the Constitution
32
preempted the treaty as domestic law.
In a later case, United States v. Ju Toy, 33 a Chinese seeking reentry claimed that he was a native-born citizen. The Court declined to
review an immigration officer's denial of entry, which the Secretary of
Labor and Commerce had approved on appeal. Not only did the
Congress have full power to vest all determination of immigration
matters exclusively in executive officers, said the Court, but the right
to due process which the citizen claimed-because denial of reentry
deprived him of liberty-was adequately protected by such executive
34
determination. A judicial trial was not required.
Finally, in Chang Chan v. Nagle, 35 the Court sustained the exclusion of Chinese wives of American citizens because the wives were
ineligible for American citizenship under the Immigration Act of
1924. One measure of the hardship caused by Chinese exclusion was
by a treaty permitting limited United States regulation of Chinese laborers seeking to
enter or already residing in the United States. However, the United States could not
absolutely prohibit the immigration or residence, and article II of the 1880 Treaty
clearly limits the regulation to laborers:
Chinese subjects whether proceeding to the United States as teachers, students,
merchants, or from curiosity . . . and Chinese laborers who are now in the United
States shall be allowed to go and come of their own free will and accord, and shall
be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.
Treaty Respecting Immigration, November 17, 1880, United States-China, 22 Stat. 826,
T.S. No. 49.
31. Ch. 1064, 25 Stat. 504. When Congress passed this law, 20,000 legally-resident
Chinese were outside the United States and 600 were en route home. M. COOLIDGE,
CHINESE IMMIGRATION 203 (1909).
32. In so deciding, the Court violated the international law doctrine of pacta sunt
servanda, according to which, treaty terms will not be affected by subsequent conflicting domestic legislation. See RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF
THE UNITED STATES § 140 (1965). American law takes a contrary stand on the point
because the Constitution makes both treaties and acts of Congress the supreme law of
the land. U.S. CONST., art. 6, § 2. Since equal effect is given to treaties and statutes,
Congress has the power to nullify a treaty as domestic law by a subsequent act.
RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §
145,
comment a, at 446 (1965).
33. 198 U.S. 253 (1905).
34. Id. at 263. Thus the Court has shut the courthouse door entirely on aliens presenting themselves for admission at the border, regardless of what right they assert as
entitling them to entry. Mr. Justice Brewer, dissenting, argued for judicial review of
cases involving citizenship claims. Id. at 264. The issue reasserts itself every time anyone challenges the immigration law.
35. 268 U.S. 346 (1924).
1977]
ASIAN IMMIGRANTS
the fact that this bar to admittance of Chinese wives eventually produced such an imbalance that there were only seven or eight women
to every 100 men in the American Chinese community in 1910.36
B.
Exclusion from American Society
Not only did Congress keep Asians out of the country by denying
them eligibility for citizenship, but Asians inside the United States as
well were kept from participating in American society in a variety of
ways: e.g., ineligibility to vote,3 7 prohibitions against testifying at the
trial of a white person, 38 and discriminatory taxation. 39 Even the citizenship status of Asians born in the United States was unsettled until
to
1898, when an American-born Chinese successfully tested his right
40
Court.
Supreme
States
United
the
be an American citizen before
36. In 1910, there were about 67,000 Chinese American males and about 5 000
Chinese American females; in 1920, there were about 54,000 males to about W000
females; in 1930, about 60,000 males to about 15,000 females. U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 10 (No. 55, 1933).
37.
See, e.g., CAL. CONST. (1849), art. 2, § 1 (amended 1879) (Chinese natives ineli-
gible to vote).
38. The California Supreme Court in People v. Hall, 4 Cal. 399 (1854), for instance,
held that Chinese testimony against whites was inadmissible in court. Accord, People v.
McGuire, 45 Cal. 56 (1872); People v. Brady, 40 Cal. 198 (1870); People v. Washington,
36 Cal. 658 (1869).
In the first session of the 1849-50 California legislature, an act concerning crimes and
punishments was passed, part of which declared that, "[n]o black, or Mulatto person, or
Indian should be allowed to give evidence in favor of, or against, a white man." In
1863, this lav was amended to include Chinese, while blacks and mulattos were excluded. 1850 Cal. Stat. 455, § 14, as amended, 1863 Cal. Stat. 69.
39. One example was the California Foreign Miners' License Tax (1850), the effect
of which was described by one commentator:
The income from the Foreign Miners' Licenses amounted, for the whole period
from 1850-1870, to one half of the total income of the state from all sources. From
1855 onward, it is conceded by all authorities that the Chinese paid practically the
whole of these taxes-a sum amounting altogether to nearly five million dollars paid
into state and county treasuries. . . . In 1870, [the tax] was declared void by the
[fourteenth amendment] .... It had long been known that it was unconstitutional
but the Chinese had no standing in courts and state officials ignored the facts because the income was so necessary to the government of both state and counties.
M. COOLIDGE, CHINESE IMMIGRATION 36 (1968), quoted in Doo, Dispute Settlement in
Chinese-American Communities, 21 AM. J. COMP. L. 627, 631 n.18 (1973). See also A
HISTORY OF THE CHINESE IN CALIFORNIA; A SYLLABUS 48-49 (T. Chinn, ed. 1969).
40. United States v. Wong Kim Ark, 169 U.S. 649 (1898) (decided squarely on the
basis of the first clause of the fourteenth amendment, which states that "[a]ll persons
born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and the State wherein they reside."). But see Weldin v.
Chin Bow, 274 U.S. 657 (1927) (rights of citizenship shall not descend to children
whose fathers never resided in the United States and citizenship attaches only where
the father has resided in the United States before the birth of the child).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
The Naturalization Act of 179041 and its progeny 42 were basic to
the denial of entry into American society of Asians. The original Act
limited eligibility for naturalization to "free white aliens," but after
43
the Civil War eligibility was extended to persons of African descent.
Because few non-Caucasians immigrated to the United States during
the first half of the 19th century, the words "free white alien" had not
then taken on great significance. This phrase, however, became the
fulcrum by which legislatures later exerted pressure against Asian
immigrants within the United States. 44
41. Act of Mar. 26, 1790, ch. 3, 1 Stat. 103.
42. Act of Jan. 29, 1795, ch. 20, 1 Stat. 414; Act of June 18, 1798, ch. 54, 1 Stat. 566; Act
of April 14, 1802, ch. 28, 2 Stat 153; Act of Mar. 26, 1804, ch. 47, 2 Stat. 292; Act of July
30, 1813, ch. 36, 3 Stat. 53; Act of Mar. 22, 1816, ch. 32, 3 Stat. 258; Act of May 26, 1824,
ch. 186, 4 Stat. 69; Act of July 14, 1870, ch. 254, 16 Stat. 254. For a more exhaustive
discussion, see M. KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN LAW 96 (1946)
[hereinafter cited as KONvITZ].
43. Act of July 14, 1870, ch. 254, § 7, 16 Stat. 254.
44. See text accompanying notes 49-54 infra. The early Republic had very little contact with the Orient. It is probable that the legislative intent behind use of the phrase
"free white aliens" was only to prevent freed Africans from gaining citizenship. The
intent of the drafters of the 1870 amendments and their interpretation of the 1790 Act,
however, can be inferred from the amendments themselves. The Act was altered to
include persons of African descent and aliens of African nativity in the eligible category,
thereby promoting specific post-Civil War aims, and excluding Asians by implication.
The 1870 amendments were first tested before a federal court in 1878. In re Ah Yup,
1 F. Cas. 223 (C.C. Cal. 1878) (No. 104) (a native of China, of the Mongolian race, is not
a white person and is thus ineligible for United States citizenship). Later cases construed the statute to exclude Asian groups other than the Chinese from eligibility for
citizenship. Toyota v. United States, 268 U.S. 402 (1925) (involving Filipinos); United
States v. Thind, 261 U.S. 204 (1922) (ineligibility of Indian Hindu); Ozawa v. United
States, 260 U.S. 178 (1922) (ineligibility of Japanese immigrants).
During World War I, Asian immigrants served in the armed forces of the United
States, thereby jeopardizing their citizenship in their various countries of origin, A 1918
act of Congress rewarded such service by allowing any alien who had served with
United States forces during the war to file a special petition for naturalization without
the usual residency requirement. Act of May 9, 1918, Pub. L. No. 65-144, 40 Stat. 542
(1918). In 1919, Congress extended this privilege to any person of foreign birth. Act of
July 19, 1919, Pub. L. No. 66-21, 41 Stat. 163, 222 (1919). These acts were construed in
Petition of Charr, 273 F. 207 (W.D. Mo. 1921) (Congress did not intend by the 1918 Act
to alter the original race or color distinctions of the naturalization statutes) and in Toyota
v. United States, 268 U.S. 402 (1925) (a Japanese born in Japan could not be naturalized
under the 1918 or 1919 Acts). See generally KONVITZ, supra note 42, at 96.
Filipinos have occupied special status in American immigration law by virtue of their
grant of status as American nationals while the Phillippines were an American colony.
Act of May 19, 1921, ch. 8, 42 Stat: 4; Act of May 11, 1922, ch. 187, 42 Stat. 540. Courts
interpreted the meaning of "nationals" differently, however. See De Cano v. Washington, 7 Wash. 2d 613, 110 P.2d 627 (1941) (discussion and history of Filipino status in
case law). In 1906 Congress extended the right of naturalization to noncitizens owing
allegiance to the United States. Act of June 29, 1906, ch. 3592, 34 Stat. 596. But some
courts nonetheless held the Filipinos ineligible for citizenship as nonwhites. E.g., 7
1977]
ASIAN IMMIGRANTS
The two most pervasive and damaging restrictions imposed upon
Asians in America were bars to owning or leasing land and limitations
on employment opportunities.
1.
Land
Having succeeded in halting Chinese immigration, racial animosity
on the West Coast focused upon the different threat to whites
thought to be posed by the Japanese. Unlike the Chinese, Japanese
immigrants were generally literate farmers with established family
units. 45 Their farming techniques were particularly suited to California's climate and landscape, and they were soon successful. 4 6 Consequently, Caucasian farmers, labor groups, and politicians perceived
the Japanese as a significant threat, 4 7 even though they were few in
48
number.
The first statute aimed specifically at restricting Asian American
49
property rights was California's Alien Land Act, passed in 1913.
The Naturalization Act of 1790, which authorized procedures by
which white aliens could become citizens, gave the California legislature a precedent for its law, enabling it to enact the statute without
Wash. 2d 613, 110 P.2d 627 (1941). Filipinos who served in the armed forces during
World War I could become naturalized citizens by virtue of dicta contained in Toyota v.
United States, 268 U.S. 402 (1925), describfng the Filipinos' circumstance as exceptional.
45. P. TREAT, JAPAN AND THE UNITED STATES 257 (1921).
46. See B. SCHRIEKE, ALIEN AMERICANS 23 (1936).
47. See E. MEARS, RESIDENT ORIENTALS ON THE PACIFIC COAST 146 (1928). The
first fruit of the anti-Japanese effort came in the form of the "Gentlemen's Agreement,"
supra note 26, between President Roosevelt and the Japanese Government in 1908.
Given the international prestige Japan enjoyed at this time, particularly in comparison
to that of China during the Exclusion Acts, the political pressure upon the President to
negotiate the Agreement had to have been considerable. Encouraged by this victory but
unable to obtain additional federal aid in their crusade, the West Coast states resorted to
use of their own power. Since employment restrictions used against the Chinese were
useless against the agriculturally oriented Japanese, legislation limiting the latter's ability to own agricultural land was required. See KONvrrz, supra note 42, at 158-59.
48. From 1861 to 1910, only 149,253 Japanese immigrated to the United States. U.S.
BUREAU OF CENSUS, HISTORICAL STATISTICS, COLONIAL TIMES TO 1945, Series B
304-330 at 35, 36 (1949).
49. Ch. 113, 1913 Cal. Stat. 206. See generally Y. ICHIHASHI, JAPANESE IN THE
UNITED STATES 269-70 (1932); Ferguson, The CaliforniaAlien Land Law and the Fourteenth Amendment, 35 CAL. L. REv. 61 (1947); Harrison, Legal Aspect of Alien Land
Legislation on the Pacific Coast, 8 A.B.A.J. 467 (1922); McGovney, The Anti-Japanese
Land Laws of California and Ten Other States, 35 CAL. L. REv. 7 (1947); Raymond,
The Development of Anti-Japanese Agitation in the United States, II, 38 POL. SCI. Q.
57, 77 (1923). For an excellent survey of alien disabilities in real property rights up to
recent times, see Sullivan, Alien Land Laws: A Re-Evaluation, 36 TEMPLE U.L.Q. 15
(1962).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
running afoul of the fourteenth amendment's equal protection
clause. 50 Although the Supreme Court had recognized sixty years
earlier the power of the states to restrict aliens' land rights, 51 it was
clear that a particular class of aliens could not be singled out for discrimination without a constitutionally recognizable "rational basis."52
The California legislature reasoned that it could deny property rights
to aliens who were, as a group, ineligible for citizenship, on the
ground that such persons could never develop sufficient identity of
interests with the state and the welfare of its people. 5 3 This distinction, ostensibly based on eligibility for citizenship rather than race,
54
provided the legislature with the "rational basis" it was looking for.
In the original California Alien Land Act of 1913, the property
rights of aliens ineligible for citizenship were limited to those protected by treaty, except that agricultural leases could be executed,
although their duration was limited to three years.5 5 Seven years
later, in an ielection referendum, California enacted an even more
stringent measure which forbade the three-year leases and even forbade ownership by ineligible aliens of stock in any organization which
could have real property interests. 56 Rights given to aliens by treaty
50. See note 44 & accompanying text supra.
51. Mager v. Grima, 49 U.S. (8 How.) 490 (1850).
52. The "rational basis" test was applied at an early stage to cases arising under the
fourteenth amendment. By this test, a legislative classification is not unconstitutional if
reasonably related to some legitimate state purpose. A classic statement of it in a case
involving legislation classifying persons on the basis of race was Plessy v. Ferguson,
163 U.S. 537 (1896) (separate but equal railway accommodations upheld). The test has
since been replaced in cases involving racially-based classifications. See notes 81-83 &
accompanying text infra.
53. See McGovney, The Anti-Japanese Land Laws of California and Ten Other
States, 35 CAL. L. REv. 7, 48 (1947). The Supreme Court upheld the constitutionality of
the California Alien Land Law of 1920, 1921 Cal. Stat. lxxxiii, in Webb v. O'Brien, 263
U.S. 313 (1923). Justice Butler, speaking for the Court, noted that
[c]onceivably, by the use of such [sharecropping] contracts, the population living on
and cultivating the farmlands might come to be made up largely of ineligible aliens.
The allegiance of the farmers to the state directly affects its strength and safety.
[citation omitted]. We think it is within the power of the state to deny to ineligible
aliens the privilege so to use agricultural lands within its borders.
Id. at 324. But see McGovney, supra at 48 (concluding that the likelihood of aliens
controlling the majority of the farmable land in California is small).
54. Ch. 113, 1913 Cal. Stat. 206.
55. Id.; KONVITZ, supra note 42, at 160. The "existing treaty" provided only for the
ownership of houses, warehouses, factories, and shops, and the right to lease land for
residential or commercial purposes; it did not include agricultural property rights of any
kind.
56. Initiative Act of 1920, 1921 Cal. Stat. lxxxiii. See also 37 HARv. L. REv. 372, 374
(1924).
19771
ASIAN IMMIGRANTS
were purportedly removed three years later. 5 7 By 1943, ten states
had joined California in enacting land-holding restrictions for some or
58
all aliens.
In 1923 the United States Supreme Court held that Washington
State's Alien Land Act, 5 9 restricting property rights of aliens who
failed to declare their intention of becoming citizens, as well as
60
California's Act directed against aliens ineligible for citizenship,
were grounded upon reasonable legislative classifications. 6 1 In reviewing the Washington Act, the Court accepted the state's argument
that the allegiance of a state's landholders was important to its wellbeing and that it was rational to expect would-be citizens to take a far
greater interest in the state than persons still owing allegiance to a
62
foreign power who could never become citizens.
At the beginning of World War II, eight states barred aliens who
were ineligible for citizenship from owning land; seven others employed a nondeclarant category for the same purpose; two states allowed aliens to hold land only for the minimum number of years
required to attain citizenship, thereafter divesting them of that right;
a handful of other states limited the amount of land which could be
owned by an alien; and during the war four more states joined the
63
first group in an anti-Japanese effort.
After World War II the United States Supreme Court laid the
groundwork for eliminating discrimination against Asians in the area
of property rights. In Oyama v. California,6 4 the Court, while not
directly invalidating alien land acts per se, undercut its earlier
57.
58.
1923 Cal. Stat. 1020.
The statutes of eight states varied only in minor respects from California's stat-
utes. Arizona adopted its statute in 1917; Louisiana in 1921; New Mexico, 1922; Idaho,
1923; Montana, 1923; Oregon, 1923; Kansas, 1925 and Utah, 1943. McGovney, supra
note 53, at 7-8. Wyoming adopted a statute, in 1943, barring "racially ineligible aliens"
from obtaining any interest, legal or beneficial, in land. Id. at 8. Arkansas' law, also
enacted in 1943, was aimed only at the Japanese. That law made no mention of the
word "alien." Id.
59. Anti-Alien Land Law, ch. 50, 1921 WASH. LAWS.
60. California Alien Land Law, Initiative Act of 1920, 1921 Cal. Stat. lxxxiii.
61. The Court dealt with the Washington statute in Terrace v. Thompson, 263 U.S.
197 (1923); the California Act was upheld in the companion cases of Porterfield v.
Webb, 263 U.S. 225 (1923), and Webb v. O'Brien, 263 U.S. 313 (1923).
62. 263 U.S. at 220-21.
63. These figures are from C. VERNER, 5 AMERICAN FAMImY LAWs 294, 305-09
(1938); Sullivan, Alien Land Laws: A Re-Evaluation, 36 TEMPLE U.L.Q. 15, 34 (1963).
See also ALIEN LAND LAWS AND ALIEN RIGHTS, H.R. Doc. No. 89, 67th Cong., 1st
Sess. 2032-34 (1921).
64. 332 U.S. 633 (1948).
THE AMERICAN UNIVERSIT LAW REVIEW
[Vol. 26:373
rationale and indicated it now would look beneath the surface of the
ineligible-for-citizenship classification to determine its actual discriminatory effect. Henceforth legislative classifications which in fact
resulted in discrimination based on race or nationality would con65
travene the fourteenth amendment's equal protection clause.
The alien land laws, which Oyama undercut, finally fell in 1952. In
66
that year Congress lifted the bar to Asian eligibility for citizenship
and the California Supreme Court ruled that evolving standards of
equal protection prohibited arbitrary discrimination against particular
67
alien groups in the United States.
2.
Employment
Discrimination against Asians on the West Coast also centered
around restrictions on employment opportunities. West Coast states
and municipalities attempted in various ways to restrict severely the
ability of Chinese to earn a living. While some discriminatory acts
and ordinances were struck down as unconstitutional, 68 others survived challenges in court.69
One ordinance that was overturned by the United States Supreme
Court was a safety regulation in San Francisco-nondiscriminatory on
its face-requiring special consent to operate a laundry in a building
65. Oyama was a case in which the state sought under the Alien Land Law to take
agricultural lands from an American citizen minor through escheat, on the ground that
the lands had been bought by the child's Japanese father and given to him to hold for
the father's benefit. The Court, after finding that the only basis for treating differently a
Japanese father's gift to his son was racial discrimination, rejected on fourteenth
amendment grounds the state's argument that the statutory provision under review was
justified because necessary to prevent evasion of the law prohibiting aliens ineligible
for citizenship from owning agricultural land.
66. 8 U.S.C. § 1422 (1970).
67. Sei Fujii v. California, 38 Cal. 2d 718, 242 P.2d 617 (1952). The Court said,
"aliens are entitled to the same protection as citizens from arbityary discrimination." Id.
at 729, 242 P.2d at 625.
68. In re Tiburcio Parrott, 1 F. 481 (1880), held that the provisions of article 19 of
the California Constitution and of legislative acts passed to enforce it prohibiting the
employment of Chinese by a corporation incorporated in California, conflicted with
rights secured to Chinese by treaty and with the fourteenth amendment of the Federal
Constitution, and were void on those grounds. In re Lee Sing, 43 F. 359 (1890), also
voided a San Francisco city ordinance requiring all Chinese inhabitants to move from
the portion of the city theretofore occupied by them to areas outside the city and
county, or to another designated part of the city and county, as being in direct conflict
with the Constitution of the United States.
69. For example, the United States Supreme Court sustained a municipal ordinance
prohibiting washing and ironing in public laundries and wash-houses within defined
territorial limits from 10 p.m. to 6 a.m. as a police regulation within the competency of a
municipality possessing ordinary powers. Soon Hing v. Crowley, 113 U.S. 703 (1885);
Barbier v. Connolly, 113 U.S. 27 (1885).
19771
ASIAN IMMIGRANTS
constructed of wood. The ordinance was struck down on the ground
that it gave arbitrary power to the reviewing board to accept or reject
applications at will. 70 The Court accepted evidence of the discriminatory application of the statute against Chinese to find a violation of equal protection. Thus for the first time, the Supreme Court
made it clear that aliens, regardless of race and national origin, were
entitled to protection under the fourteenth amendment against arbi7
trary discrimination by the state. '
Using that decision, the Supreme Court subsequently struck down
several attempts by states to protect their citizens against competition created by aliens in the labor force, as violations of the right of
aliens to equal protection under the law. Major decisions in this line
were Truax v. Raich72 and Takahashi v. Fish & Game Commission.7 3
Both decisions, however, contained weaknesses that allowed inequalities to continue. In Truax the Court left the door open for discrimination against aliens practicing in skilled professions, viewing such a
restriction as a reasonable exercise of the state's police power to legislate for the health, safety, and welfare of the community. 74 Takahashi
70. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Yick Wo was a landmark case in the
evolution of standards for constitutional review of legislative classifications. For discussion of the Court's decision, see Note, Constitutionality of Restriction on Alien's Right
to Work, 57 COLUMs. L. REv. 1012 (1957); Note, Constitutionality of Legislative DiscriminationAgainst the Alien in his Right to Work, 83 U. PA. L. REv. 74 (1934).
71. The Court said: "The Fourteenth Amendment to the Constitution is not confined
to the protection of citizens .... These provisions are universal in their application, to
all persons within the territorial jurisdiction, without regard to any differences of race,
of color, of nationality ...." 118 U.S. at 369.
72. 237 U.S. 33 (1915). An Arizona statute limiting the percentage of aliens hired by
any employer of over five workers to 20% of the total was invalidated, mainly on equal
protection grounds. The Court also indicated that the statute was unconstitutional inasmuch as it interfered with the exclusive right of Congress to regulate immigration. The
Court recognized that Arizona's restriction might serve practically to eliminate immigration because it would lead aliens to surmise that their ability to earn a livelihood in the
United States would be doubtful.
73. 334 U.S. 410 (1948). The issue presented before the Court was whether an alien
could be prohibited from fishing in the state's waters. The Court held that any denial of
the state's resources on the basis of alienage is unconstitutional and that the state statute
involved violated the Japanese plaintiff's right to equal protection under the law. More
importantly, the Court considered that the "proprietary interest theory" upon which
such state legislation had frequently been validated in the past was inapplicable in this
case. This decision served as a warning to states that they could no longer legally discriminate against aliens on the rationale that the state "owned" that which the alien
sought to use and could consequently refuse arbitrarily to share it with noncitizens. See
Rosales, Resident Aliens and the Right to Work: The Quest for Equal Protection, 2
HASTINGS CONST. L.Q. 1029 (1975); Note, 1947-48 Term of the Supreme Court: Alien's
Right to Work, 49 COLUM. L. REv. 257 (1949).
74. Truax v. Raich, 239 U.S. 33, 41 (1915). See text accompanying notes 146-158
infra.
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 26:373
allowed the state to continue to restrict aliens from working for the
states themselves, 75 and to continue to exercise broad police powers to
impose restrictions on the occupational choice of immigrants. 76 A later
Court decision in 191577 relied on these weaknesses to sustain the right
78
of the state to limit public employment to citizens.
The states were not alone in discriminating against aliens in the
area of employment; federal regulations also restricted alien job opportunities within the federal government. These restrictions included the Civil Service Commission Rules of 1888 requiring an oath
of citizenship, 79 a rule promulgated in 1896 limiting civil service examinations to American citizens,80 and the Emergency Relief Appropriations Act, as amended in 1939, which barred employment of
aliens on any project which was funded by the Act."' The Supreme
Court never reviewed these laws, but the last was upheld at the district court level. 82
Such discriminatory employment restrictions, of course, affected all
aliens uniformly. Although they were of concern to Asian immigrants,
it could not be said that they were primarily race-based classifications. Consequently, the restrictions survived until late in the 1960's
and early in the 1970's, when courts first held that legislative classifications based on alienage per se, as differentiated from race
per se, were also "suspect" classifications; they were subject to "strict
scrutiny" and needed to be justified by some "compelling state interest." In one such major decision the California Supreme Court extended the scope of the fourteenth amendment's equal protection
clause to require that alienage be treated like race and consequently
75. The Court held that the opportunity to be employed in public enterprises is a
privilege which the state may, in its discretion, grant or withhold. See Rosales, supra
note 73, at 1044.
76. Id. at 1036. Licensing requirements have closed various occupations to aliens
including funeral director, embalmer, hairdresser, cosmetologist, barber, veterinarian,
hunter, peddler, physician, pharmacist, teacher, and lawyer. See notes 146-158 & accompanying text infra.
77. Heim v. McCall, 239 U.S. 175 (1915).
78. The Court contended that the state is in the position of private employer and
thus can contract to prescribe the conditions upon which public work can be done. Id.
at 191.
79. CIVIL SERVICE COMM'N ANN. REP., 50th Cong., 2d Sess. 58 (1888). See
Comment, The Constitutionalityof Employment Restrictions on Resident Aliens in the
United States, 24 BUFFALO L. REV. 211, 231 (1974).
80. CIVIL SERVICE COMM'N ANN. REP., 57th Cong., 2d Sess. 59 (1902).
81. Emergency Relief Appropriations Act of 1939, Pub. Res. No. 76-24, § 16(e), 53
Stat. 927 (1939) (amending Emergency Relief Appropriations Act of 1938, Pub. Res. No.
75-122, 52 Stat. 809 (1938).
82. Robb v. Legg, 27 F. Supp. 243 (1939). See Annot., 38 A.L.R.3d 1213 (1971).
1977]
ASIAN IMMIGRANTS
considered a "suspect classification. "8' 3 Traditionally, legislation discriminating against aliens had been upheld unless the challenging
party could prove that the statutory classification based on alienage
was "plainly irrational." In the United States Supreme Court also,
decisions dealing with suspect classifications generally had long required that some compelling state interest justify the classifications
made under the state statutes; on the other hand, nonsuspect classifications were presumed valid, and needed only to be demonstrated as
having some "rational basis" in order to withstand attack for violation
of equal protection.8 4 Nevertheless, the California court in this case
broke with precedent; since the court could find no "compelling state
interest" for a legislative classification based on alienage the law was
85
held to be unconstitutional.
The United States Supreme Court first extended its suspect classification category to include aliens in 1971.86 The case involved a
denial of welfare benefits rather than discrimination in employment,
but the Supreme Court's action in placing alienage in the category
requiring strict judicial scrutiny indicated that at least some employment restrictions would be struck down as unconstitutional if also
challenged. One such challenge came two years later.8 7 The Court's
83.
Purdy v. State, 71 Cal. 2d 566, 456 P.2d 645, 79 Cal. Rptr. 77 (1969).
84. See generally Gunther, In Search of Evolving Doctrine on a Changing Court:
A Model for a Newer Equal Protection, 86 HARv. L. REV. 1 (1972); Nowak, Realigning the Standards of Review under the Equal Protection Guarantee-Prohibited,Neutral
and Permissive Classifications, 62 GEO. L.J. 1071 (1974).
85. Purdy v. State, 71 Cal. 2d 566, 585, 456 P.2d 645, 659, 79 Cal. Rptr. 77, 90 (1969).
In addition to this broadened interpretation of the fourteenth amendment's equal protection clause, the California Supreme Court based its decision on the federal
government's supremacy in the area of immigration, reasoning that state actions limiting
the ability of an alien to earn a living substantially interfere with congressional immigration policy and this cannot be allowed. See Comment, Equal Protection and Supremacy Clause Limitations on State Legislation RestrictingAliens, 1970 UTAH L. REV.
136, 139-40. Although the Constitution does not expressly give the federal government
the power to control immigration, the Supreme Court gave it exclusive control. See Smith
v. Turner (The Passenger Cases), 48 U.S. (7 How.) 283 (1849). Congress also has the
sole power to determine what classes of aliens are allowed to enter the United States.
Shaughnessy v. Mezei, 345 U.S. 206 (1953).
86. Graham v. Richardson, 403 U.S. 365 (1971).
87. Sugerman v. Dougall, 413 U.S. 634 (1973). Sugerman'involved a New York State
statute preventing aliens from participating in competitive civil service examinations.
Closely following the logic first advanced by the California court in Purdy, the Supreme
Court indicated that states desiring to legislate on the bases of alienage would have to
show that such statutory schemes are necessitated by a compelling state interest which
could not be protected in any less prejudicial manner.
The Court's specific ruling in the case was that the statute being reviewed was both
overinclusive and underinclusive; it was overly broad in barring aliens from even the
lowest level civil service positions, yet too narrow in failing to cover many high level
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
decision in this case plainly spelled an end to most of the existing
state limitations on aliens' occupational rights; it did not, however,
contain a flat ban on such restrictions. Justice Blackmun wrote for the
majority:
[W]e do not hold that, on the basis of an individual determination, an
alien may not be refused, or discharged from, public employment, even
on the basis of non-citizenship, if the refusal to hire, or the discharge
rests on legitimate state Interests that relate to qualifications for a particular position or to the characteristics of the employee. 88
Federal limitations on the occupational opportunities of aliens were
challenged and finally removed in Hampton v. Mow Sun Wong. 8 9
The United States Civil Service Commission's regulations barring
lawfully admitted resident aliens from taking Civil Service examinations were there declared unconstitutional. The Court found the interest of such aliens in federal Civil Service employment to constitute
an interest in liberty, of which they could not be deprived unless the
due process requirements of the fifth amendment were fully satisfied.
It concluded that such a deprivation could not be justified by any
reason properly the concern of the Commission. The prohibition
against aliens taking the exam was deemed to be an arbitrary exercise
of power and thus a denial of due process. 90
The Civil Service Commission, since Hampton, is barred from arbitrarily excluding resident aliens from all competitive federal Civil Service openings. The Court did not decide, however, that the United
States Government has no power to exclude aliens from some or even
all Civil Service positions. In Hampton the Court decided that only
an arbitrary action by the Commission excluding resident aliens from
competing for Civil Service positions was unconstitutional. The decision left open the possibility that a compelling national interest, as
determined by Congress or the President would justify exclusion. 9 1
government jobs. Thus, the Court determined that a section of the New York civil service law, which provided that only American citizens could hold permanent positions in
the competitive class of the state's civil service, violated the equal protection clause of
the fourteenth amendment. The Court also explicitly rejected the special public interest
or proprietary interest doctrine, which had been moribund for years.
88. Id. at 646-47. See Comment, Aliens, Employment, and Equal Protection, 19
VILL. L. REV. 589, 611 (1974).
89. 426 U.S. 88 (1976). For background discussion, see Das, Discrimination in
Employment Against Aliens-The Impact of the Constitution and Federal Civil Rights
Laws, 35 U. PITT. L. REv. 499 (1974).
90. 426 U.S. at 116-17.
91. The Commission argued that there existed three national interests, the protection of which justified exclusion of noncitizens from civil service jobs. The first argument
1977]
ASIAN IMMIGRANTS
Discrimination in employment against Asians in the United States
has taken on various and subtle forms. Early cases served to eliminate discriminatory regulations in the private employment sector;
another set of cases discussed above eliminated discriminatory state
employment practices; finally, Hampton proposes to eliminate all existing arbitrary federal discrimination. There remains another area of
the law affecting the ability of Asian immigrants to earn a livelihood
in the United States in which concepts of due process and equal protection are only now working a change: the issuance of professional
licenses. 92 A review of some modem developments in the law precedes that discussion, however.
III.
ASIAN
IMMIGRANTS AND AMERICAN LAW TODAY
The foregoing historical review highlights the enduring legal issues
confronting Asian immigrants to the United States from the 1880's to
the 1950's. One further episode which bears mentioning is the wellknown and deplorable internment of the Japanese on the West Coast
during the Second World War. 9 3 A series of cases in the United
advanced was that exclusion of aliens
may facilitate the President's negotiation of treaties with foreign powers by enabling him to offer employment opportunities to citizens of a given foreign country
in exchange for reciprocal concessions .... [The other arguments raised were that]
reserving the federal service for citizens provides an appropriate incentive to aliens
to qualify for naturalization and . . . that the need for undivided loyalty in certain
sensitive positions clearly justifies a citizenship requirement in at least some parts
of the federal service and that the broad exclusion serves the valid administrative
purpose of avoiding the trouble and expense of classifying those positions which
properly belong in executive or sensitive categories.
Id. at 104. The Court summarily dismissed the first two of these interests, absent an
explicit determination of the Commission's role in protecting such interests. Id. at 115.
Although the Court did not rule out the third interest as being compelling, it signalled
significant incredulity at the prospect of the Commission's actually taking consideration
of that interest before making the decision to exclude noncitizens. Id. at 115-16. It
should be noted, however, that the Court's ruling on the compelling validity of the
aforementioned state interests was strictly limited to overriding the unilateral assertion
of the Commissioner that exclusion was essential to the protection of those interests; the
inference is strong that the result would be contrary if there were an "explicit determination by Congress or the President to exclude all noncitizens from the federal service."
Id. at 116.
92. See text accompanying notes 146-158 infra.
93. For discussions of the detention program, see Dembitz, Racial Discrimination
and the Military Judgment: The Supreme Court's Korematsu and Endo Decisions, 45
COLUM. L. REv. 175 (1945); Freeman, Genesis, Exodus and Leviticus-Genealogy,
Evacuation, and Law, 28 CORNELL L.Q. 414 (1943); Murphy, Civil Liberties and the
JapaneseAmerican Cases: A Study in the Uses of Stare Decisis, 11 W. POL. Q. 3 (1958);
Rostow, The JapaneseAmerican Cases-A Disaster,54 YALE L.J. 489 (1945).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
States Supreme Court, 94 justifying the internment, illustrated the extent to which the Bill of Rights could bend under the stresses of
wartime, but more importantly criticism of the cases 95 served to stir
public sensitivity to the legal status of Asian Americans after the war.
A. The Immigration Law
The decade from 1942 to 1952 was, indeed, a turning point in the
struggle for equal rights for Asians in the United States. In 1943 the
Chinese exclusion laws were repealed. 9 6 Enactment of the so-called
War Brides Act on December 28, 1945, 97 permitted wives and children of Americans who served honorably in the armed forces of the
United States during World War II to immigrate freely. Yet Asian
American wives continued to be discriminated against, and an
amendment to the Act, passed on July 22, 1947, expressly prohibiting
spouses from being excluded from immigration because of their race
eased the bias. 9 8 Finally, the Immigration and Nationality Act of
195299 eliminated the provision of the 1790 Act barring the naturalization of nonwhite aliens. 10 0
To be sure, Asian immigrants after 1952 were equally eligible for
American citizenship. The old rationale for discriminatory legislation
based on ineligibility for citizenship had lost its fundamental premise.
Nonetheless, the national quota system for admitting immigrants
which was built into the 1952 Act gave the grant of eligibility a hollow ring. 1 1 The quota system resulted in severe discrimination
94. Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States,
320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943).
95. See, e.g., articles cited in note 91 supra.
96. Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat. 600 (1943).
97. Act of Dec. 28, 1945, Pub. L. No. 79-271, 59 Stat. 659 (1945). The Act expired on
December 30, 1949.
98. The amendment stated: "See. 6. The alien spouse of an American citizen . . .
shall not be considered as inadmissible because of race .
Act of July 22, 1947, Pub.
L. No. 80-213, 61 Stat. 401 (1947).
99. Pub. L. No. 82-414, 66 Stat. 163 (1952).
100. Id., § 311. This 1952 provision effectively accorded to Japanese, Koreans, and
other Asian nationalities the same eligibility which, Congress had otherwise granted to
Chinese and Filippino immigrants.
101. 66 Stat. 163, tit. II, ch. 1, §§ 201-207 (1952). According to the basic scheme of
the 1952 Act, an immigrant admitted under the quota system was charged to the country
of birth regardless of his or her ethnic background or citizenship. An exception to this
rule was made in the case of persons who could trace one-half of their ethnic ancestry
or more to countries arbitrarily delineated in the Asia-Pacific Triangle. Thus, a person
born in Great Britain of a German father and a French mother would be charged to
Great Britain's quota under the place of birth rule. But if a person were born in Great
Britain to a British father and a Chinese mother, that person would be charged to
19771
ASIAN IMMIGRANTS
against persons from the Asia-Pacific Triangle of nineteen Asian countires and Pacific islands north of New Zealand. 102 The Immigration Act
of 1921103 had first set up a quota system to regulate immigration, and
a permanent policy of overall numerical restriction and separate national quotas was embodied in the 1924 Act.' 0 4 When Congress repealed the Chinese exclusion laws in 1943, it allocated a token annual
quota of 105 persons for China,' 0 5 which operated so as to produce
China's quota. This system served to reduce the chances of Asians becoming permanent
residents of the United States.
102. The origin of the Asia-Pacific Triangle concept is to be found in the barred
Asiatic zone provision of the 1917 Act Act of Feb. 5, 1917, Pub. L. No. 64-301, 39 Stat.
874 (1917). For a discussion of the Asia-Pacific Triangle, see Scully, Is the Door Open
Again? A Survey of Our New Immigration Law, 13 U.C.L.A. L. REv. 227, 228-29 (1966).
The 1952 Act allowed some quotas to go unused every year. Because high-quota Northern and Western European countries produced few immigrants, the quotas of countries
like England, Germany, and Ireland accumulated to the point that "only three countries
were allowed to supply 70 percent of all the immigrants." WEEKLY COMP. OF PRES.
Doc. 364, 365 (1965). The annual quota allocated for the Asia-Pacific Triangle could
barely reach 8 percent of the total quota. It included 186 immigrants per year for Japan
and 105 for China. See Scully, supra, at 234. It is also reported that the percentage of
Asian immigrants in the total quota for the period ranging from 1951 through 1960 was
only 6 percent. [1972] IMMIGRATION AND NATURALIZATION SERV. ANN. REP., 6, Table
13.
Another limiting factor under the Act was the immigration policy of admitting aliens
on the basis of their ability to contribute to the nation economically rather than on the
need to reunite families separated because of insufficient quotas. This policy was detrimental to wives and children of Asian Americans who wished to be admitted to the
United States.
103. Pub. L. No. 67-5, 42 Stat. 5 (1921). This Act ended free immigration into the
United States and allotted a quota for each country based on a percentage (3 percent) of
the U.S. population in 1920 which had originated from each country as reflected in the
census poll of 1910. This meant that countries which experienced heavy immigration to
the United States prior to 1910 (i.e., Northern and Western European countries) received larger quotas than those from which immigration increased after 1910, (i.e.,
Southern and Eastern Europeans). This caused a disequilibrium in the entry system,
with some countries' quota numbers going unused and substantial backlogs being
created in others. See Appleman, That New Immigration Act, 52 A.B.A.J. 717 (1966).
104. Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153 (1924). The pertinent
sections of the Act were as follows:
Sec. 11(a). The annual quota of any nationality shall be 2 per centum of the number
of foreign-born individuals of such nationality resident in continental United States
as determined by the United States census of 1890, but the minimum quota of any
nationality shall be 100.
(b) The annual quota of any nationality for the fiscal year beginning July 1, 1927,
and for each fiscal year thereafter, shall be a number which bears the same ratio to
150,000 as the number of inhabitants in continental United States in 1920 having
that national origin (ascertained as hereinafter provided in this section) bears to the
number of inhabitants in continental United States in 1920, but the minimum quota
of any nationality shall be 100.
Id. at § 11.
105. Act of Dec. 17, 1943, ch. 344, §§ 1, 2, 57 Stat. 600 (1943).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
obvious discrimination against Chinese. 10 6 The basic features of the
quota system were carried over into the 1952 Act and remained intact
until Congress abolished the entire national quotas approach to regulating immigration in 1965.
The 1965 amendments 10 7 to the 1952 Act were a major advance in
terms of the general status of Asian immigrants. The purpose of these
amendments was broadly to do away with, once and for all, the inherent racial and national prejudices which had marked the immigration law from its inception.' 0 8 They resulted in immigration to the
United States of Asians in unprecedented numbers, 10 9 and although
the amendments have no direct effect upon the legal status of Asians
in the United States, they undoubtedly will enhance the political influence and social status of the group by virtue of its increased numbers. 11o0
Basically, the 1965 amendments replace the old national quota system with a preferential quota system based on family ties, refugee
status, and job skills. An additional nonpreferential category allows
persons to immigrate who do not fit into one of the preferential
categories. Quota numbers allotted for the various preferential
categories which are not used may be taken up by nonpreference
immigrants."' An annual overall ceiling of 170,000 immigrants was
106. Quota numbers were not allocated on the basis of nationality at the time of
application for admission, and exemption from quota status was denied to the Chinese
wives of American citizens. See KONVITZ, supra note 42, at 28.
107. Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911 (1965) (codified in 8 U.S.C.
§ 1151 (1970)).
108. H.R. REP. No. 745, 89th Cong., ist Sess. (1965); S. REP. No. 748, 89th Cong.,
Ist Sess. (1965). For a discussion of existing immigration and nationality law, see C.
GORDON & H. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE (1972); C. KAISER &
M. FILLER, OPEN DOORS TO THE U.S.A., A PRACTICAL GUIDE TO IMMIGRATION LAW
(1973); CHASE, IMMIGRATION LAWS OF THE UNITED STATES (3d ed., 1975);
S. WASSERMAN, IMMIGRATION LAW AND PRACTICE (2d ed., 1973). After 95 years of official
and legal discrimination by the United States against Asian immigrants, no statutory
provision is more significant than the following: "No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence except as specifically provided ....
8 U.S.C. § 1152(a) (1970).
109. [1975] IMMIGRATION AND NATURALIZATION SERv. ANN. REP. 62-64. See also,
Keely, Effects of the Immigration Act of 1965 on Selected Population Characteristicsof
Immigrants to the United States, 8 DEMOGRAPHY 157, 162 (1971).
110. G. KAISER & M. FILLER, supra note 108, at 3.
111. The present law establishes seven preferential and one nonpreferential category for the allocation of visas within the world-wide quota. 8 U.S.C. § 1153 (1970).
Five of the seven preferences of admission are given to kinship immigrants; the remaining two preferences are for occupational immigrants. Refugees are admitted under conditional entry. The first preference provides entry for a maximum of 34,000 unmarried
sons and daughters of United States citizens per year. The second preference, limited to
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ASIAN IMMIGRANTS
placed on the Eastern Hemisphere, with no more than 20,000 allowed from any one country.1 1 2 Finally, immediate relatives of
American citizens are permitted to immigrate without regard to the
quotas or any numerical limit. 113
Although the 1965 amendments have gone very far in establishing
a fair and equitable immigration policy, several problems relating to
Asians have generated study and commentary in the legal profession1 14 and in Congress. 1 5 At present, Indochinese refugees still stand
20% of the total numerical limitation, is for the spouses, unmarried sons, or unmarried
daughters of aliens who are lawfully admitted for permanent residence. The third preference, with a 10% limitation, is for professionals or persons with exceptional ability in
the sciences or arts who will substantially benefit the national economy or cultural interests of the United States. The fourth preference category covers the married sons and
daughters of United States citizens and has a 10% limitation (17,000), plus any quota
numbers not required for the first three preferences. The fifth preference is for brothers
and sisters of United States citizens and is limited to 17,000 per year, plus any not
required for the first four preferences. The sixth category (10%) gives preference to
immigrants who are capable of performing labor for which a shortage of qualified labor
exists in the United States. The seventh preference is for refugees from Middle East
and Communist countries, and from countries which have suffered a natural disaster as
defined by the President. This category is limited to six percent of the total annual
allowance, defined in 8 U.S.C. § 1151(a)(ii) as 170,000 per annum. Half of these numbers may be used to adjust the status of refugees already in the United States. The
eighth preferential category consists of all unused quota numbers in the first seven preference categories and is to be filled by such nonpreference aliens as aunts, uncles,
nephews, nieces, grandparents, and grandchildren of United States citizens. 8 U.S.C. §
1153(a) (1970). In addition, the 1965 Act permits an alien who has been admitted under
a nonimmigrant visa to adjust to permanent resident status. Such adjustment is made
while in the United States at the discretion of the United States Attorney General if the
alien is eligible for an immigrant visa and if the availability of a visa can be shown. 8
U.S.C. § 1255 (1970).
112. 8 U.S.C. § 1151(a) (1970).
113. Since 1921 there have always been aliens who qualified as "non-quota" immigrants. Immigration Act of 1921, Pub. L. No. 67-5, 42 Stat. 5 (1921). However, since the
"quota-non-quota" nomenclature was dropped under the 1965 Act these same groups
have been reclassified as "immediate relatives" or "special immigrants." These two
categories of immigrants are entitled to enter the United States without numerical limitation. "Immediate relative" is defined as children under the age of 21, and the spouse
and parents of United States citizens. 8 U.S.C. § 1151(b) (1970). Special immigrants may
enter the United States as immigrants and are eligible for status as alien relatives lawfully admitted to the United States. 8 U.S.C. § 1151(a) (1970). Special immigrants include returning resident aliens, former citizens of the United States, ministers and
preachers of religious sects, and former employees of the United States government. 8
U.S.C. § 1101(a)(27)(D-E) (1970).
114. The subject received extensive treatment in an Immigration Symposium, 13 SAN
DIEGO L. REV. 1 (1975). See also, Helbush, Aliens, Deportation and the Equal Protection Clause: A CriticalReappraisal, 6 GOLDEN GATE U.L. REv. 23 (1975); Des Carmen,
A Comparative Study of the Admission, Exclusion, and Deportation of Aliens in the
United States and Phillipines (U.S.C. thesis, Univ. of Illinois, 1970).
115. For a discussion and documentation of congressional effort to refine the existing
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
in the position of conditional entrants. They were admitted to the
United States under parole authority, 116 and continue in the status of
parolees.11 7 They have no guarantee of ever being allowed to become
citizens or resident aliens and without these assurances will remain
alien, unassimilated, and frustrated."18 Most government jobs are not
easily available to them, and they are easy targets for discrimination
by private employers. It seems undeniable that Congress, having
provided the legal basis for admitting these refugees, will have to
complete the task and provide them with permanent resident
status. 119
A second area of potential reform that is of interest to Asians concerns the intercountry adoption of Asian children. Scarcity of children
available for adoption in the United States has caused prospective
parents to turn to Asian children as a major resource for intercountry
adoption. 120 Commentators familiar with the complex law of intercountry adoptions have raised three questions with respect to the
1965 Act. First, should an unmarried citizen of the United States be
entitled to petition for classification of a child as an orphan eligible for
immediate relative status? The argument made is that an alien child
adopted by an unmarried American citizen should enter the United
States with the same immigrant status as an alien child adopted by a
United States citizen couple, 12 1 and Congress recently took this viewimmigration and nationality law, see HohI & Wenk, 5 INT'L MIGRATION REv. 399
(1971). On December 9, 1969, Senator Kennedy with 24 other Senators introduced S.
3203. A companion bill, H.R. 15,092 was introduced simultaneously in the House of
Representatives. These omnibus proposals were designed to refine and strengthen the
immigration and naturalization system established in 1965. However, S. 3202 received
no action and died at the end of the 91st Congress.
116. 8 U.S.C. § 1103(a); 8 C.F.R. § 103.1 (1975).
117. For a discussion of the status of Indochinese parolees, see Comment, RefugeeParolee: The Dilemma of the IndochinaRefugees, 13 SAN DIEGO L. REV. 175 (1975).
118. Id. at 186, 189, 123-24.
119. On September 10, 1975, Senator Scott introduced S. 2314 to permit any agency
of the U.S. Government to hire Indochinese aliens who had previously been employees
by the U.S. Government in Indochina for a period of not less than three years. See 121
CONG. REC. S15,633 (daily ed. Sept. 10, 1975). On May 7, 1976, Congresswoman Fenwick, with five sponsors, introduced H.R. 13,640, entitled "Indochinese Refugee Status
Adjustment Act," 122 CONG. REC. H4138 (daily ed. May 7, 1976). This need is also
noted in Rodino, Immigration Symposium: Foreword, 13 SAN DIEGO L. REV. i, iii
(1975).
120. See Kim & Carroll, Intercountry Adoption of South Korean Orphans: A Lawyer's Guide, 14 J. FAM. L. 223 (1975). See also Comment, InternationalAdoption-United
States Adoption of Vietnamese Children: Vital Considerationsfor the Courts, 52
DEN.
L.J. 771 (1975).
121. See Driessen, Immigration Laws, Procedures, and Impediments Pertaining to
Intercountry Adoption, 4 DEN. J. OF INT'L L. & POL'Y 257, 268 (1975); Note, Law and
19771
ASIAN IMMIGRANTS
point in changing the law.' 22 Second, what valid policy is served by
limiting to two the number of children which adoptive parents can petition for as immediate relatives? 123 Any rationale for this limitation
seems to be untenable and arbitrary. Finally, is it wise to amend immigration law so as to eliminate requirements that children be in the
legal custody of their adoptive parents, as well as physically present
124
and residing in the United States, before they may be naturalized?
Under such an amendment a child could be naturalized at the time
adoption is legally consummated, and a child who has entered the
country on a nonimmigrant visa could also be naturalized. Present
law attaches prohibitory conditions on renewal of nonimmigrant visas
25
which make this currently impossible. 1
A third issue concerning Asians under present immigration law
pertains to the citizenship status of a foreign born child of one United
States citizen parent and one alien parent. A recent study in Japan
discloses the presence of a surprising number of children there who
were born in Japan or some other country outside the United States
to one American citizen parent and one alien parent. 126 These children are considered stateless and are ineligible for welfare and medical benefits under Japanese law. 127 It may be assumed that there are
more such foreign born children in other Asian countries where
United States involvement has been heavy. Such children are United
States nationals or citizens by birth, subject to divestiture of their
status under existing United States immigration law.
A foreign born child of one United States citizen parent and one
alien parent loses his United States citizenship by failing to be physically present in the United States for five consecutive years between
Procedure in Intercountry Adoption by CaliforniaResidents, 8 U. CAL. DAvis L. Rxv.
241, 244 (1975).
122. 8 U.S.C. § 1101(b)(1)(F) (Supp. V 1975).
123. The statute specifically prescribes that "no more than two petitions may be
approved for one petitioner in behalf of a child" unless it is necessary to prevent separation of siblings. 8 U.S.C. § 1154(c) (1970). On May 5, 1975, Senators Mondale and
Cranston introduced a bill which would grant immediate relative status to foreign orphans notwithstanding the number of previous petitions filed by the prospective parents. S. 1634, 94th Cong., 1st Sess. (1975).
124. These requirements are spelled out at 8 U.S.C. § 1434 (1970). Two bills introduced in Congress last year would have amended the law so as to eliminate them. S.
1367, S. 1633, 94th Cong., 1st Sess. (1975).
125. For discussion of this issue, see 121 CONG. REc. S7364 (daily ed. May 5, 1975).
126. International Social Service of Japan, Inc., Research of Children of U.S. Nationality in Japan for the Purpose of Protecting Them From the Loss of Nationality (1974).
127. Id. at 19, 48-50. See also (Japanese) Nationality Law, Law No. 147, art. 2, May
4, 1950.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
the ages of 14 and 28.128 In 1971, the United States Supreme Court
upheld the constitutionality of this provision in a five-to-four decision.' 2 9 The dissenting opinions were strong and well-reasoned. The
majority opinion, on the other hand, failed to demonstrate convincingly that one class of citizens at birth should be treated differently
from other classes of citizens at birth.130 The framers of the Constitution plainly assumed that both birth and naturalization would confer
American citizenship.131 Citizenship obtained at birth was to be indestructible and inalienable and only relinquished voluntarily.' 3 2 Congress can and should avert the consequences of this decision by
33
enacting remedial legislation.1
B.
Law Pertainingto Asian Immigrants Inside the United States
The current immigration problems discussed above pale in comparison with those which confronted Asians under the old immigra128. 8 U.S.C. § 1401(b) (1970). The pertinent provision of the statute reads as follows:
Any person who is a national and citizen of the United States at birth under para-
graph (7) of subsection (a) of this section, shall lose his nationality and citizenship
unless he shall come to the United States prior to attaining the age of twenty-three
years and shall immediately following any such coming be continuously physically
present in the United State [sic] for at least five years: Provided, that such physical
presence follows the attainment of the age of fourteen years and precedes the age of
twenty-eight years.
Id. (emphasis in original).
129. Rogers v. Bellei, 401 U.S. 815 (1971).
130. The majority reasoned that a foreign born child of one United States citizen
parent is not a "Fourteenth Amendment first sentence citizen," since the fourteenth
amendment begins, "All persons born or naturalized in the United States .... " Reading
these words strictly, the Court termed Bellei's citizenship as statutory only, not protected to the same degree as constitutional citizenship. The dissenters could find no
basis for this reading of the fourteenth amendment and would have given all citizenship
the same constitutional protection.
131. F. FRANKLIN, THE LEGISLATIVE HISTORY OF NATURALIZATION IN THE UNITED
STATES FROM THE REVOLUTIONARY WAR TO 1861, ch. 11 (1969).
132. Afroyim v. Rusk, 287 U.S. 253 (1967). See also Schwartz, American Citizenship
After Afroyim and Bellei: Continuing Controversy, 2 HASTINGS CONST. L.Q. 1003
(1975). A number of commentators emphasize the need to reorganize and refine denationalization statutes. Wasserman, The Voluntary Abandonment of United States
Citizenship, 17 S. TEX. L.J. 31 (1975); Comment, Involuntary Expatriation, 21 AM. U.L.
REV. 184 (1971); Note, Problems of the Foreign-Born Citizen, 11 COLUM. J.
TRANSNAT'L L. 304 (1972); Note, Citizenship Residency Requirement, 85 HARV. L. REV.
64 (1971); 23 BAYLOR L. REV. 494 (1971); 38 BROOKLYN L. REV. 513 (1971); 47 NOTRE
DAME LAW. 1056 (1972).
133.
Fong, Immigration and NaturalizationLaws: Today's Need for Naturalization
Law Reform, 5 INT'L MIGRATION REV. 406, 416-17 (1971). See also Gordon, The Need
to Modernize Our Immigration Laws, 13 SAN DIEGO L. REv. 1, 32-33 (1975). For a
recent criticism of Bellei, see Hertz, Limits to the Naturalization Power, 64 CEO. L.J.
1007, 1027-45 (1976).
1977]
ASIAN IMMIGRANTS
tion laws. They are, nonetheless, worthy objects for reform. Similarly,
in the realm of laws affecting the equal participation of Asians in
American society, the wide gulf which in the past cut off Asians from
the mainstream has been narrowed. The elimination of state laws discriminating on the basis of eligibility for citizenship to deny access to
public employment and natural resources has already been dealt
with.13 4 Since Hampton and related cases, it is clear that even after
Asians became equally eligible for citizenship, they could not be denied such access simply on the basis of their resident alien status
before acquiring citizenship.
It should be noted, however, that as a practical matter resident
aliens, including Asian immigrants, still face the bar to federal government employment which came under attack in Hampton. The
Supreme Court's holding in that case, that the Civil Service Commission could not discriminate against aliens, left open the possibility
that Congress or the President might do so should either find it
necessary in the national interest. In September 1976 President Ford
accepted the Court's invitation to do so, ordering that aliens should
be barred from the Civil Service's competitive examination and be
denied appointment in the competitive service, except in the particular circumstances where the efficiency of the service or the national interest dictate otherwise.13 5 At the same time, he urged Congress to
develop legislation prescribing exactly what rights aliens may enjoy
within the United States.' 3 6
1.
Private Employment
Equally important advances have been made since 1952 in the area
of private employment. Title VII of the Civil Rights Act of 1964 protects all citizens by forbidding private employers engaged in interstate commerce from discriminating against employees and applicants
for employment on the basis of race, color, religion, sex, or national
origin.' 3 7 For resident aliens, however, redress is found not in the
Civil Rights Act of 1964, but in the Civil Rights Act of 1866, as
amended in 1870, codified as section 1981.138 Guerra v. Manchester
134.
See text accompanying notes 68-92 supra.
135. Exec. Order No. 11,935, 41 Fed. Reg. 37,301 (1976); Letter from Gerald R. Ford
to Carl Albert, Speaker of the House of Representatives, and to Nelson A. Rockefeller,
President of the Senate, Sept. 2, 1976, 41 Fed. Reg. 37,303 (1976).
136. Letter from Gerald R. Ford, supra note 135.
137. 42 U.S.C. § 2000e-2 (1970).
138. 42 U.S.C. § 1981 (1970). The 1866 Act stated, "all persons . . .shall have the
same right ...
to make and enforce contracts .. .as is now enjoyed by white citizens
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
Terminal Corp.,139 in which the Fifth Circuit held that discrimination
against resident aliens by private employers is unlawful, was a major
decision under this earlier law. 140 Guerra succeeded the United
States Supreme Court's holding in a 1973 decision that the phrase
"national origin" in Title VII of the Civil Rights Act of 1964
did not
prohibit discrimination against aliens, because classification as an
alien was based upon status with respect to the laws of citizenship
rather than country of origin.' 4 ' The resident alien in Guerra
persuaded the Fifth Circuit Court of Appeals that he had a right to
redress for discrimination against his private employer under section
1981.
The United States Supreme Court had held in 1906 that a suit
brought pursuant to section 1981 required a showing of state action
before it could be heard under that statute because Congress had
passed the Civil Rights Act of 1866 in part to enforce the fourteenth
amendment. 142 In 1968 the Court expressly overruled this precedent
to decide that a claim under section 1981 requires no showing of state
action to be upheld. 143 The Fifth Circuit relied on the 1968 opinion
to decide the claim in Guerra, but it noted that its decision could also
rest on the exclusive power of Congress to regulate matters relating
to immigration.' 4 4 Section 1981, extending coverage to aliens lawfully
admitted to the United States, could also be viewed on this footing,
apart from the fourteenth amendment, as an exercise of the authority
.... "The Act was intended to benefit the recently emancipated slaves. Act of Apr. 9,
1866, ch. 31, § 1, 14 Stat. 27 (1868). The 1870 amendment expanded this coverage to
include aliens on the basis of either the thirteenth amendment, which operated to
eliminate the public and private incidents of slavery, or the fourteenth amendment. Act
of May 31, 1870, ch. 114, § 16, 16 Stat. 144 (1871).
139. 498 F.2d 641 (1974). For discussion of Guerra, see 6 CAL. W. INT'L L.J. 172
(1975); 24 CATH. U.L. REv. 376 (1975); 8 TEx. INT'L L.J. 403 (1973); 6 VAND. J. OF
TRANSNAT'L L. 660 (1973).
140. In Guerra, a resident alien of the United States claimed discrimination due to a
job transfer which was the equivalent of a demotion. The transfer had been mandated
by the local union which required that Mexican Nationals maintaining families in Mexico should have last priority in certain jobs, since these jobs carried the fringe benefits
of insurance coverage for the employee's family.
141. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973).
142. Hodges v. United States, 203 U.S. 1 (1906). The fourteenth amendment provides that no state shall deprive any person of life, liberty, or property without due
process of law. U.S. CONST. amend. XIV.
143. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The claim in Jones actually
arose under the closely related statute of 42 U.S.C. § 1982, but the Court's decision in
explicitly overruling Hodges served to remove the state action hurdle for suits under
section 1981.
144. Guerra v. Manchester Terminal Corp., 498 F.2d 641, 653-54 (1974).
19771
ASIAN IMMIGRANTS
of Congress over immigration matters to forbid private discrimination
against aliens inside the United States.
Guerra stands unchallenged to date, and although it is law only in
the Fifth Circuit, it serves to attenuate the harsh implications for
resident aliens of the Supreme Court's 1973 decision. Indochinese
refugees who presently have the legal status of alien parolees in the
145
United States are the prime potential beneficiaries of its rationale.
2.
ProfessionalLicensing
Current discrimination in the granting of licences necessary to engage in regulated professions is reminiscent of the old statutory burdens placed on Asians seeking a livelihood. 14 6 States have made citizenship a prerequisite for the granting of such licenses, 147 and courts
traditionally have subjected such licensing statutes to minimal
scrutiny under the fourteenth amendment. 148 The denial to resident
145. See notes 116-119 & accompanying text supra.
146. A now-repealed New York statute is typical:
No chauffeur's license shall be issued to any applicant twenty-one years of age or
over, nor, if issued, shall be valid, unless the applicant therefor shall be an American citizen, or shall have within six years preceding the date of issue of such
license, filed an official declaration of his intention to become a citizen of the
United States.
Former N.Y. VEH. & TRAF. LAW (Consol.) ch. 71, § 20(1-a), cited in Magnani v. Harnett,
282 N.Y. 619, 25 N.E.2d 395 (1940). Another example is provided by a Portland, Oregon
city ordinance: "No license to engage in a soft drink business shall be issued to any
person not a citizen of the United States. Any license issued to any person not a citizen
of the United States to engage in a soft drink business shall be absolutely void." This
section is cited in George v. Portland, 114 Ore. 418, 235 P. 681 (1925). By the start of
World War II, nearly all jurisdictions had instituted some form of citizenship requirements for the occupations of certified public accountant and lawyer, while about half
required citizenship of dentists and physicians; somewhat under one-half the jurisdictions required citizenship of pharmacists, architects, teachers, optometrists, and engineers and/or surveyors. KONVITZ, supra note 42, at 201-07. As to a survey of the occupations for which citizenship was required from 1953 to 1967, see 16 IMMIGR. & NATUR.
REP. 37 (1968).
147. See, e.g., the statutes cited in note 146, supra.
148. The rationale put forth for flatly excluding noncitizens from practicing regulated
professions was that admitting them to practice posed a potential threat to a state's welfare. The United States Supreme Court in Murphy v. California, 225 U.S. 623 (1912),
upheld the right of a state to forbid completely any business which threatened the welfare of the state. Clarke v. Deckeback, 274 U.S. 392 (1927), upheld an Ohio statute
requiring citizenship of pool hall proprietors as a prerequisite for conducting that business. The Court concluded that there need only be some rational basis for the requirement to sustain it on due process and equal protection grounds, saying: "Although the
Fourteenth Amendment has been held to prohibit plainly irrational discrimination
against aliens, it does not follow that alien race and allegiance may not have been in
some instances such a relation to a legitimate object of legislation as to be made the
basis of a permanent classification." Id. at 396. But see Asakura v. Seattle, 265 U.S. 332
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:373
aliens of employment opportunities effected through these statutes is
substantial and far-reaching in its impact on Asian immigrants, and
only recently have courts begun to sustain attacks upon them on con49
stitutional grounds.1
Two recent court decisions are of major significance in this area. In
1972, the California Supreme Court held that a statutory bar to admitting resident aliens to practice law in the state violated the equal
protection provisions of both the state and federal constitutions. 1 50
The court expressly rejected five specific interests which the Committee of Bar Examiners asserted as being protected by excluding
noncitizens from the practice of law.' 5 '
(1924) (municipal ordinance prohibiting granting of pawnbroker's license to aliens violated treaty with Japan).
149. E.g., Raffaelli v. Committee of Bar Examiners, 7 Cal. 3d 288, 496 P.2d 1264, 101
Cal. Rptr. 896 (1972).
150. Id. Citing Purdy v. California, 71 Cal. 2d 566, 456 P.2d 645, 79 Cal. Rptr. 77,
(1969), the court emphasized that
in reviewing a discriminatory statute based on alienage, '[n]ot only must the classification reasonably relate to the purposes of the law, but also the state must bear
the burden of establishing that the classification constitutes a necessary means of
accomplishing a legitimate state interest, and that the law serves to promote a compelling state interest.'
7 Cal. 3d at 295-96, 496 P.2d at 1269, 101 Cal. Rptr. at 901 (1972).
151. The five stated reasons and the court's discussion of them was as follows:
1. A lawyer must 'appreciate the spirit of American institutions . .. [is an invalid
ground for exclusion because t]he First Amendment's protection of association
prohibits a State from excluding a person from a profession or punishing him solely
because he is a member of a particular organization or because he holds certain
beliefs.' [The court then cited Baird v. State Bar of Arizona, 401 U.S. 1 (1971), and
Konigsberg v. State Bar of California, 353 U.S. 252 (1957)].
2. A lawyer must take an oath to support the Constitutions of the United States
and California ... [but] an alien can take this oath, both legally and as a matter of
fact. [The court stated that "loyalty" is not precluded by one's alien status, as evidenced by the Congress providing for aliens to be conscripted into the armed forces
of the United States. Such military service requires an oath of support for the
Constitution.]
3. A lawyer must remain accessible to his clients and subject to the control of the
bar . . . [but t]here is no showing that noncitizen members of the bar, as a class,
will be more likely than citizens to make such a move without properly winding up
their affairs and protecting the interests of their clients. [The court further stated
that the risk of deportation due to the outbreak of war is "not forseeable" nor is it
an "inevitable consequence." During World War II, for example, German and
Italian nationals were not interned unless they were suspected of disloyalty to the
United States.]
4. 'The practice of law is a privilege, not a right' . . . [but t]his adage is premised
upon two theories, both of which have recently been rejected as outmoded by the
United States Supreme Court. [The court cited Graham v. Richardson, 403 U.S. 365
(1971) and Baird v. State Bar of Arizona, 401 U.S. 1 (1971).]
5. A lawyer is an 'officer of the court' and therefore 'should be a citizen' . . . [is
also an invalid ground for exclusion of aliens from practicing law because the court
19771
ASIAN IMMIGRANTS
The decision of the United States Supreme Court in In re
Griffiths152 is even more influential. The petitioner was a resident
alien who pointedly refused to declare her intention to become a citizen, but who wished to be admitted to the Connecticut bar. The
Supreme Court held that the state had not met its burden of proving
that the classification was necessary "to vindicate the state's undoubted interest in maintaining high professional standards." 15 3 Thus,
Connecticut's exclusion of resident aliens from the practice of law violated the equal protection clause of the fourteenth amendment. In
essence, the Court indicated that the state's legitimate interests could
be properly protected on a case-by-case basis by way of pre-admission
examination and ongoing scrutiny of bar members rather than
through exclusion by means of the overly broad classification of
54
"alien.'1
Apart from statutory bars to licensing resident alien professionals,
procedures for licensing also have been found to result in de facto
discrimination against immigrant professionals. A recent report by the
California Advisory Committee on Civil Rights to the United States
Commission on Civil Rights highlights the discriminatory effect which
licensing standards may have upon professionals who immigrate to
the United States after receiving their educations in their countries of
origin. 155 The requirement of a degree from an accredited American
professional school, for example, may initially appear reasonable.
However, when one considers that such a standard prevents foreign
professionals with years of experience in their native countries from
practicing their professions in the United States without beginning
anew, the true discriminatory effect of the requirement become evident. While some states have developed standards to evaluate foreign
education and experience on a comparative basis with the United
could find] no demonstrable nexus between that status and a requirement that
every lawyer be a United States citizen.
7 Cal. 3d 296-301, 101 Cal. Rptr. at 901-05, 496 P.2d at 1269-73 (emphasis in original).
152. 413 U.S. 717 (1973).
153. Id. at 727. The Court treated alienage as a suspect classification, subject to strict
scrutiny.
154. For discussion of Griffiths, see Annot., 53 A.L.R.3d 1163 (1973); Comment, The
Constitutionality of Employment Restrictions on Resident Aliens in the United States,
24 BUFFALO L. REv. 221, 225-30 (1974); Knoppke-Wetzel, Employment Restrictions
and the Practice of Law by Aliens in the United States and Abroad, 1974 DUKE L.J.
871, 895-906.
155. CALIFORNIA ADVISORY CoMm. REP. TO THE U.S. COMM'N ON CIVIL RIGHTS, A
DREAM UNFULFILLED: KOREAN AND FILIPINO HEALTH PROFESSIONALS IN CALIFORNIA
(1975).
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[Vol. 26:373
States, others, such as California, do not. 156 Given the fact that a vast
majority of Asian immigrants settle in the established Asian communities of California, 157 that state in particular would seem to bear a
8
particular burden of reappraising its licensing procedures.15
IV.
TODAY'S CHALLENGE: LEGISLATING TO PROMOTE
THE EQUAL PARTICIPATION OF ASIAN IMMIGRANTS
IN AMERICAN SOCIETY
The foregoing historical record is a chronicle of piecemeal progress
toward parity for Asians seeking to enter the United States as immigrants and, once in the country, to earn their livelihoods initially as
lawful resident aliens and eventually as citizens. Little is to be gained
from recrimination for past sins; we dwell in the present. If it has
taken the United States 95 years to overcome its reaction to Asian
Americans, one may philosophically attribute that to human frailty.
This catharsis in American law, however, has produced problems of
its own which vitally affect the future of Asian immigrants in the
United States today.
The large increase in the number of Asian immigrants following the
1965 amendments to the Immigration and Nationality Act' 5 9 and the
recent influx of refugees from Indochina have produced communities
in the United States containing disproportionate numbers of Asian
immigrants who are ill-equipped to make their way in modem
American society. 160 Not only do these immigrants suffer the culture
shock commonly associated with confronting a new way of life in a
country that is very different, but they are further hampered by their
lack of familiarity with the English language. 16' This unfamiliarity
156. Id. at 18. New York, for example, has an international set of standards for pharmacy licensing.
157. Id. at 9.
158. This juncture would seem to be an appropriate occasion for applying the doctrine announced in Sei Fujii v. California, 38 Cal. 2d 718, 242 P.2d 617 (1952), that is, of
looking beyond ostensibly lawful restrictions to determine the de facto discriminatory
effect of the state's action in order to evaluate its validity in terms of due process and
equal protection. See notes 64-67 & accompanying text supra.
159. See notes 107-13 & accompanying text supra.
160. See generallu Hearings on H.R. 9895 Before the Subcomm. on Equal Opportunities of the House Comm. on Education & Labor, 93d Cong., 2d Sess. (1974); Immigration Symposium, 13 SAN DIEGO L. REv. 1 (1975).
161. Some measure of the impact of language disability is provided in the following
testimony of Tuei Doong of the Inter-Group Council which includes the Asian Workshop, Washington, D.C.:
Inadequate language skill is a permanently damaging disadvantage. Low-level
language skills is [sic] sufficiently precise and flexible for most simple purposes of
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has a direct adverse effect upon their capacity to earn a living in their
new homes.162 It relegates even those who have received professional
to second-class jobs, frequently
training in their countries of origin
16 3
outside their professional field.
communications, but is inadequate and unsuitable for increasingly elaborate, abstract, and subtle needs of communication in higher education and in skills of professional occupations.
The equipment for learning in a modem society is largely linguistic, and if the
equipment in a modern society is largely linguistic, and if the equipment is deficient, then the content of that which is learned and the ability to learn, will correspondingly be deficient.
What is the impact of all this? Urban Associates Inc. (1970), a consultant firm
under contract with the U.S. Department of Health, Education & Welfare on an
ethnic minorities study, has estimated that more than 63,000 Asian American pupils
are in need of bilingual/bicultural education programs, with the greatest needs
among the Chinese, Philippino, and Korean populations.
Hearings on H.R. 9895 Before the Subcomm. on Equal Opportunities of the House
Comm. on Education & Labor, 93d Cong., 2d Sess. 130 (1974) [hereinafter cited as
Hearings on H.R. 9895].
162. The problem is aptly described as follows:
[T]here are small numbers of employment positions which do not require English
as a means of communication. The non-English speaking immigrants are therefore
limited in their scope of possible income sources. The non-English speaking
Chinese immigrants, in particular, are restricted to menial jobs in the few existing
Chinese owned and operated restaurants, laundries and grocery stores. Many work
10-14 hours a day, 6-7 days a week, often in more than one job. There is no free
time to learn English language and advance to better-paying employment opportunities. These immigrants, then, are caught in a viscious [sic] circle of menial labor
at long hours for low wages with no immediate end in sight.
Id. at 108.
163. Particularly among Filipinos, many professionals have been drawn to the
United States, part of the larger process of "brain drain" to this country from abroad in
recent decades. Yet for these immigrants, lacking command of English, the experience
is frequently one of disillusionment. A Filipino community agency worker explained:
Unfortunately, not all immigrants have the facility for the English language. Even
Filipinos who have a basic introduction to the rudiments of English grammar have
a gap in their bargaining power in the labor market in terms of articulation and
fluency that needs retraining and, in a few cases, polishing up.
* * , [T]hey might be employed as professionals, but not always as lawyers or
judges; as dentists, but not as physicians or social scientists; as managers in selfemployed retail trade, but not as sales managers or school administrators; as file
clerk or typists, but not as receptionists or secretaries.
Id. at 40-41. Similar evidence exists with respect to other groups. For example:
There is a Korean Medical Doctors Association of Southern California, with the
membership counting about 30, and another professional organization called the
Korean Dentist Society. Only two or three of them have engaged in the medical
field, according to the organization officers. Few of them run grocery stores, most of
them work in other business offices as general clerks, two restaurant owners, even
machinists and janitors.
Id. at 93 (testimony of Royal F. Morales, Project Director, Asian American Community
Mental Health Training Center, Los Angeles).
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These impediments to full participation of Asian immigrants in
American society foster isolation of Asian communities in the United
States, the very sort of isolation which stereotypes Asians as alien to
the American way of life. They force Asians into inferior roles, rendering it more difficult for them to move outward and upward. Most
significantly, they result in waste of human resources, a loss both to
the Asians themselves and to society at large.
The burden upon Asian immigrants in the United States is no
longer legal, but social. It is, however, equally detrimental despite its
changed nature. The Asian immigrant coping with his new circumstances, ignorant of the ways of the bureaucracy and isolated by the
language barrier, lacks the means to utilize existing social services
which might help to alleviate the burden. Private groups and agencies
exist which fill the gap to some extent, but these are chronically underfunded. 16 4 With no way out, they remain unemployed, relegated to
menial and low-paying jobs, or underemployed in semi-professional
positions which fail to utilize them to do the work for which they are
qualified.
On the one hand, those who lack professional training and easily
marketable skills must usually accept jobs of a kind not covered by
federal minimum wage statutes, and without fringe benefits. Excepted from the Fair Labor Standards Act of 1966, for example, are
laundry workers in small, largely intrastate laundries and "any employee of a retail or service establishment who is employed primarily
in connection with the preparation or offering of food or beverage for
human consumption.' 6 5 Those with professional training, on the
other hand, must live with the daily frustration of working at a job
where they cannot utilize fully, or even utilize at all, their expertise.
There have been federal initiatives to address this new aspect of an
old problem. Starting in 1972, Congress authorized funding for an
Asian American program to be undertaken by the United States Civil
Rights Commission. 16 6 The program is designed to assist Asian
164. This was a major theme throughout the hearing on H.R. 9895. Id.
165. Fair Labor Standards Act of 1966, Pub. L. No. 89-601, tit. II, § 201, 29 U.S.C. §
213(a)(2) (1970). Immigrant Chinese women are also the victims of illegal sweatshops,
primarily in New York and San Francisco, which contract with large-scale clothing
manufacturers to produce the garments which these manufacturers design and market.
The women are paid by the piece, 50¢ or 60¢ for each garment. In 10 hours' work, an
experienced worker can earn a maximum of $12 per day. The women receive no benefits such as sick pay, health insurance, etc. Hearings on H.R. 9895, supra note 161, at
49-50.
166. Act of Oct. 14, 1972, Pub. L. No. 92-496, § 6, 86 Stat. 814. See 2 U.S. CODE
CONG. & AD. NEWS 3624 (1972). See also Hearings on H.R. 14,989 Before a Subcomm.
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Americans by serving as a soundingboard for their complaints of discrimination. It will likewise appraise the laws and policies of the federal government to determine whether Asian Americans are being
denied their rights and will make recommendations to appropriate
agencies; and it also will become a clearinghouse through which information relevant to the civil rights of Asian Americans may be disseminated. This program could greatly expand the opportunities of
Asian Americans to enjoy better education, housing, and job opportunities.
In 1974, Representative Patsy Mink introduced a bill entitled "The
New Americans Education and Employment Assistance Act." 167 This
bill was a direct attempt to ease the process of adjustment for all
immigrants coming to this country, and it would have been effective
in meeting the particular needs of the new Asian immigrants just described. Its objective was to grant funds for disbursement by the Secretary of the Department of Health, Education, and Welfare (HEW)
168
to those states having concentrations of immigrant populations.
Grants were to be provided, to the extent funds were available, to
"gateway cities," those with a population of 50,000 or more having
more than five percent immigrant population. 16 9 These grants were
to be used to carry out programs of education, health, housing, job
training, orientation, public assistance, and other activities for the
benefit of immigrants.170 A very significant provision of the Act was
to establish job referral programs in gateway cities to place immigrants in jobs available in states other than that in which the gateway
city is located. A grant of up to $250 was authorized for each immigrant seeking employment and to each member of his immediate
family to relocate from a gateway city to any state other than that in
which the gateway city is located.171
It might be objected that this bill is inconsistent with the
requirement of the Immigration and Nationality Act that nonpreference aliens be admitted only upon establishment by the Secretary of
Labor that the existing labor force at the alien's destination is
of the Senate Comm. on Appropriations,92d Cong., 2d Sess. 2116 (1972); Hearings on
H.R. 12,652 Before Subcomm. No. 5 of the House Comm. on the Judiciary, 92d Cong.,
2d Sess. 40 (1972); Hearings Before the Subcomm. on Constitutional Rights of the
Senate Comm. on the Judiciary, 92d Cong., 2d Sess. 25 (1972).
167. H.R. 9895, 93d Cong., 2d Sess. (1974). The bill was reintroduced last year. H.R.
2522, 94th Cong., 1st Sess. (1975).
168. H.R. 9895, 93d Cong., 2d Sess. § 4 (1974).
169. Id., § 3(3) (1974).
170. Id., §§ 5, 6 (1974).
171. Id., § 8(c), (d) (1974).
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[Vol. 26:373
inadequate. 172 The bill, however, goes beyond the narrow objective
of assuring that immigrants will not become public charges. Its
purpose is to promote affirmatively the full participation of
immigrants in American society. 173 A further objection might be that
the bill gives immigrants assistance in employment that is not
available to American citizens who face much the same kind of
economic and occupational hardship. This, however, would fail to
recognize that the problem of the immigrant is unique and the responsibility of the Congress toward the immigrant, by virtue of its exclusive power in immigration matters, is special. As to any objection
to the bill's cost, it need only be recognized that the benefit in terms
of fully utilizing the resources of the immigrants who come to the
United States, as well as the relief the bill would provide to those
states and cities that bear a disproportionate burden of the present
high social cost of receiving immigrants, more than justify the bill's
expense.
Stated simply, from the Asian immigrant's point of view, true
equality in the United States remains elusive so long as the law is
merely passive in conferring equality. Discrimination will persist in a
system that is indifferent to the social realities confronting Asian immigrants. The New Americans Education and Employment Assistance
Act died in committee. The need for it, however, persists, and Congress sooner or later must rise to it.
V.
CONCLUSION
Asian immigrants have been present in the United States in significant numbers for a century, but American law has accorded them
equality only since the Second World War. First to fall were exclusionary immigration laws, then bars to eligibility for American citizenship. With these came an end to racially grounded barriers to
land ownership, access to natural resources, and public and private
employment in certain occupations. For those who remained resident
aliens, however, nonracial discrimination continued under laws relating to public and private employment and professional licensing
which distinguished between citizens and aliens. Only in the last de172.
Immigration and Nationality Act of 1965, Pub. L. No. 89-236, 8 U.S.C. §
1182(a)(14) (1970).
173. Representative Patsy Mink, addressing this point, stated: "[E]ven though a family may be able to assure financial support... does not mean that that family can cope
with the social cultural changes which that individual is going to be faced with when
they do arrive ...." Hearings on H.R. 9895, supra note 161, at 21.
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407
cade have many of these statutes fallen before fourteenth amendment
challenges. A remaining area of controversy is the licensing of alien
professionals.
The end of exclusionary immigration laws was followed by a discriminatory quota system which kept Asian immigration to a trickle.
With the 1965 amendments to the Immigration and Nationality Act,
however, came a tide of Asian immigrants to the United States, no
longer saddled with the old de jure discrimination but now confronted by a de facto discrimination that is in part a product of their
unfamiliarity with the language and ways of their new country. A
special category are the refugees from Indochina.
The modern challenge in securing equality for these new Asian
immigrants in the United States is to assist them affirmatively in entering fully the mainstream of American life. Congress, vested with
exclusive authority in immigration matters, has the power-and the
responsibility-to do this. The price of inaction will be the waste of a
valuable human resource.