Tag Archives: racism

How Did We Get Here? The Origins of Immigration Restrictions: The Chinese Exclusion Act

As promised, here is the start of my historical examination of immigration rule changes, and we begin with the Chinese Exclusion Act of 1882. For those interested in the text of the act itself it can be found here.

For a little background, the first restriction on immigration to the US was actually the Page Act of 1875. This act too focused on Asian immigrants attempting to limit people being brought over for forced labor or prostitution. In practice that latter provision was a significant limiting factor on Chinese women coming to the United States, less because of most emigrating Chinese women actually being prostitutes than officials being overly skeptical towards claims of virtue. This association of the Chinese with crime was one of the major arguments used by anti-Chinese restrictionists in the years leading up to the exclusion act’s passage and parallels modern arguments about immigrant criminality. To explore this (and other major restrictionist arguments) the internet has made easily accessible wonderful resources such as arguments made before the California State Senate (the state with the highest Chinese population) by State Senator Creed Haymond. On page 4 he argues:

The State of California has a population variously estimated at from seven hundred thousand to eight hundred thousand, of which one hundred twenty-five thousand are Chinese…The evidence demonstrates beyond cavil that nearly the entire immigration comes from the lowest orders of the Chinese people, and mainly those having no homes or occupations on the land, but living on boats on the rivers, especially those in the vicinity of Canton.

This class of the people, according to the castes into which Chinese society is divided, are virtually pariahs—the dregs of the population. None of them are  admitted into any of the privileges of the orders ranking above them. And while rudimentary education is encouraged, and even enforced among the masses of the people, the fishermen and those living on the waters and harbors of China are excluded by the rigid and hoary constitutions of caster from participation in such advantages.

It would seem to be a necessary consequence, flowing from this class of immigration, that a large proportion of criminals should be found among it; and this deduction is abundantly sustained by the facts before us, for of five hundred and forty-five of the foreign criminals in our State Prison, one hundred and ninety-eight are Chinese—nearly two-fifths of the whole—while our jails and reformatories swarm with the lower grade of malefactors.

(Emphasis mine).

Continue reading “How Did We Get Here? The Origins of Immigration Restrictions: The Chinese Exclusion Act” »

US immigration law creates hundreds of mini-dictators, empowered to enforce racist policy without question

Donald Dobkin is a Canadian-American immigration lawyer who, a few years back, authored a Georgetown Immigration Law Journal article titled Challenging the Doctrine of Consular Nonreviewability in Immigration Cases. The whole article is worth reading, but the short story is:

  • US consular officers are entitled to deny you a non-immigrant visa if you cannot prove to them you won’t immigrate to the US
  • Because this is considered a question of fact, under US law, this decision cannot be questioned or overturned, not even by the Secretary of State or the President
  • Courts have held that under very limited circumstances, they can review non-factual issues that affected the visa application outcome
  • However, the end result is that for the vast majority of people refused a non-immigrant visa to the US, there is no appeal mechanism and no check on US consular officers’ power to disrupt or destroy foreigners’ lives

One interesting thing I learned is that the doctrine of consular nonreviewability (sometimes mockingly called consular absolutism; John Lennon supposedly once referred to US consular officers as “absolute monarchs”) has its roots in the 1889 case Chac Chan Ping v. United States (often simply called the Chinese Exclusion Case). This is the case which first held that the government has the right to do whatever it likes to foreigners trying to enter the US, for whatever reason. Consequent immigration law doctrine in the US has built on the foundation of the Chinese Exclusion Case, especially in the area of consular nonreviewability. As Dobkin quotes one scholar saying:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

(For non-Americans, Dred Scott and Plessy v. Ferguson are two famous US Supreme Court cases which respectively held that black people have no rights and that racial segregation is constitutional.)

Immigration law’s roots in racism go deep. Beyond the US, virtually every modern Western country rooted in the common law tradition originally adopted immigration controls in order to exclude foreigners from the wrong racial backgrounds. See for instance the UK closing its borders to Commonwealth citizens because they received too many black and Asian immigrants, Australia adopting a “White Australia” legal regime to keep out Asian immigrants, or Canada pursuing immigration controls in the 19th century to restrict Chinese immigration.

And the best traditions of immigration law continue today. In Olsen v. Albright, former US consular officer Robert Olsen sued the State Department for wrongful dismissal after he refused to enforce a visa policy that discriminated against people who “look poor” or were born into the wrong race.  Given how well-documented the racist nature of State’s visa policy was, the judge had no choice but to agree with Olsen — but given the doctrine of consular nonreviewability, he had no power to overturn the denial of visas to anyone who, as one visa refusal documented, “Looks + talks poor.”

Dobkin notes that in many European countries, including Germany, judicial review of visa decisions is enshrined in law. The catastrophic effects which US judges and consular officers fear from permitting judicial review have not materialised. Dobkin suggests that this is because:

  1. Pursuing judicial review is costly, so applicants will only pursue it if they strongly believe the consular officer was wrong
  2. More importantly, the risk of facing judicial review forces consular officers to get visa decisions right

One interesting point Dobkin highlights is that unfortunately for foreigners, immigration law cases tend to be decided precisely when anti-immigrant sentiment runs high: you get a lot more immigration lawsuits when immigration law enforcement is at its peak. This bias means that immigration legal precedents favourable to immigrants are relatively rare, and likely accounts for the long survival of the Chinese Exclusion Case.

There are of course rare instances where the courts do decide to review a consular officer’s decision, and Dobkin cites quite a few. These are worth a separate post, which I will publish in due time. But they do not materially change the picture: US immigration policy enthrones consular officers as dictators, capable of punishing people for reasons as trivial as wearing the wrong coat or being from the wrong ethnic origin. Not even the President or Supreme Court can overturn their decision. And there is no real reason for this, except for the US immigration legal system’s peculiar attachment to consular nonreviewability, a doctrine rooted in racism, and one that plenty of other developed countries are fine doing without.

The painting featured at the top of this post depicts the deportation of Acadians from Canada in 1755.

Pure versus applied racialism among restrictionists

Post by Vipul Naik (regular blogger and site founder, launched site and started blogging March 2012). See:

Immigration restrictionists draw upon a diverse collection of arguments against immigration. While some restrictionist arguments stress the number of immigrants, others outline concerns about the characteristics of immigrants (more here). The characteristics-based arguments include IQ deficit, dysfunctional immigrant culture, and skills mismatch. There are other arguments that stress the harms of hetereogeneity per se.

One type of reasoning used in characteristics-based arguments, that has historically been the subject of much controversy, is racialist reasoning. [The topic of race seems to draw strong moral reactions, including accusations of racism and unhelpful stereotypes. I’ll try my best to avoid moralism on the issue in this blog post, though it may not be hard to see where I stand.]

“Racialist” arguments, per my understanding, are arguments that use race as a fundamental unit of analysis in the study of social phenomena, and typically do so in a manner that treats race as something more than a “social construct” but rather as something that has a biological and/or internal cultural component. This is a broad brush definition that may not fit all cases, but it’s a good start. For many people, racialism is the same as racism, while others argue that racism is much narrower than racialism, and it’s possible to be racialist without being racist.

I want to add to this understanding of racialism by distinguishing two types of racialism: pure racialism, where race is treated as a morally salient end in itself, and applied racialism, where race is only used as a proxy, or statistical predictor, of other phenomena. In the context of immigration restrictionism, a pure racialist argument may say, “Immigrants are of the wrong/bad/other race, therefore we should close our borders.” An applied racialist argument may say, “Immigrants are of this race, and we know that this race, statistically, has a lower average IQ or higher crime rate or votes the wrong way or is a drain on the welfare state. Therefore, we should close our borders.”

A small but not insignificant fraction of restrictionist groups and websites employ racialist arguments against immigration. Foremost among these is VDARE, which is focused on making the case against immigration to the US, and uses racialist reasoning, along with many other forms of reasoning, to argue against immigration. The American Renaissance website is focused on racialism and also advocates for immigration restrictions. There are many other websites that use racialist arguments against immigration. Alternative Right is one such website.

In so far as these arguments are applied racialist arguments, they can be addressed more directly by considering both the empirical evidence for the actual harms claimed, as well as keyhole solutions that tackle those harms. Continue reading “Pure versus applied racialism among restrictionists” »

Accusations of racism in the immigration debate

One of the tactics that many people on the pro-immigration side of the immigration debate adopt is to point out the unsavory “racist” and “eugenicist” associations that some immigration restrictionists have, or might have. I’m going to argue here that focusing on these associations, whether or not they are true, does not do much to advance the case for open borders, and detracts from the substantive debates. Continue reading “Accusations of racism in the immigration debate” »