Legal Foundations of US Citizenship and Immigration
Core Concepts of Sovereignty and Citizenship
Sovereignty
Sovereignty is the right and ability to defend borders and the right and ability to decide what happens within those borders. Westphalian sovereignty is the international law principle establishing that each state has exclusive sovereignty over its territory, domestic affairs, and population, free from external interference. Emerging from the 1648 Peace of Westphalia, this framework emphasizes non-intervention and territorial integrity, forming the basis of the modern international order. This concept is relevant to the course because it is the basis for allowing the immigration process to be discretionary, as each country has the possibility to decide whom they let in.
Citizen vs. Alien
A citizen is a person with full, permanent, and constitutional rights in the U.S., while an alien (or noncitizen) is a foreign-born person who has not naturalized and may have limited rights. Citizens hold voting rights and passport privileges, whereas aliens are subject to federal immigration regulations, potential removal, and restrictions on certain rights.
Assimilation
Plenary Power
Plenary power is the broad, exclusive, and largely unreviewable authority of the federal government to control the nation’s borders by determining who may enter and who must leave the United States. Originating from the “Plenary Trilogy” of Supreme Court cases in the late 19th century, this doctrine establishes that the power to exclude and deport is an inherent attribute of national sovereignty. This explains why the immigration process studied in this course is so discretionary.
Fourteenth Amendment
Ratified in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Habeas Corpus
Naturalization
Exclusion and Deportation
Polyculturalism
A theory that affirms cultures are not distinct things that exist side by side; rather, they are living and evolving. People may appear to be part of distinct groups, but the boundaries of those groups are porous. If we accept that the world is polycultural, then the idea of the U.S. as exceptional is hard to sustain. The U.S. is not any more a “nation of immigrants” than any other place, but here this idea has been raised to the level of a national mythology. This complicates racial categorization as a basis for law or policy. Rather than treating Indian students at Yale as aliens, we might consider that the university received seed money from Elihu Yale, one-time governor of Madras, whose wealth came from the expropriated labor of Indian peasants.
Due Process
Birthright Citizenship
Naturalization
Whiteness
Slavery created a need to justify the subjugation of African people, where religion and skin color were insufficient. The ability to produce a “white performance” meant one could then experience “white privilege.” Petitioners pointed either to their own personal adoption of white values or their group’s assimilation into Western European and Christian traditions.
As a matter of law, who is considered a “citizen” and who is considered an “alien” depends on who is classified as white. Whiteness functions as a defining principle of legal membership and belonging. Legal definitions of citizenship historically centered whiteness as the standard for inclusion. At the same time, whiteness only exists and is defined in opposition to non-white, racialized groups. The exclusion and racialization of others help construct and reinforce the meaning of whiteness. In this way, racialized groups define the boundaries of whiteness, and whiteness defines the boundaries of citizenship and alienage.
Comparative Racialization (Laura Gomez)
Comparative racialization, as defined by Laura Gomez, is the process by which racial groups are constructed and positioned in relation to one another within a racial hierarchy, rather than being defined independently. The essential logic of In re Rodriguez was that Mexicans were “white enough,” despite not being truly white. The Court emphasized prior collective naturalization, but the broader social and political context was more important. A labor shortage was critical, and the decision reflected larger forces surrounding immigration, including Asian exclusion. Mexican Americans were incorporated into European and Christian traditions and were effectively granted an “honorary white” status. This positioned them differently from African Americans and effectively made them complicit in policing the “one-drop rule” applied to Black Americans. Under that rule, one drop of Black blood meant Blackness, as seen in Plessy v. Ferguson. In contrast, one drop of European ancestry for Mexicans could provide some degree of white status. Through this process, Mexicans participated in reaffirming a racial hierarchy by claiming whiteness and distinguishing themselves from other racialized groups. Comparative racialization thus explains how racial meanings and statuses are shaped relationally within a system structured by white supremacy.
Racialization of Religion (Bayoumi)
Race and religion are interconnected in the construction of racial categories and hierarchies. Religion plays a role in creating racial divisions, and the ability to perform whiteness has been tied to religious identity. As Tehranian explains, adopting dominant religious and cultural norms can function as a performance of whiteness. Bayoumi argues that religion can operate as a proxy for race when political conditions require it. In this way, religion becomes a mechanism for determining racial status.
Strict Scrutiny
Interest Convergence
Manifest Destiny
Family Preference System
Key Laws and Policies
Chinese Exclusion Act
In the early 1800s, a small number of merchants arrived from China. In the mid-1800s, migration increased due to the 1848 Gold Rush and the construction of the transcontinental railroad between 1863 and 1869. By the 1880s, one-tenth of California’s population was of Chinese descent. The increasing number of Chinese immigrants, combined with the post–Civil War economic depression and widespread racism, led to exclusion, racial hostility, and violence. Many white workers saw the Chinese as economic competition. This, along with racist rhetoric from government officials, led to legal discrimination; for example, Chinese people were not allowed to testify against whites in court.
The Chinese Exclusion Act was the first major U.S. federal law to prohibit a specific ethnic group from entering the country. The law suspended the immigration of Chinese laborers and required residents to obtain re-entry permits. It also stopped all naturalization of Chinese immigrants. The law was extended in 1892 and made indefinite in 1902. In 1888, re-entry certificates were declared invalid under the Scott Act. In 1892, the Geary Act required Chinese laborers to carry proof of lawful residence or face deportation. These laws were finally repealed in 1943. This legislation introduced a new role for immigration officials: deciding who was admissible (“merchants, students, teachers”) versus excludable (“laborers”). This created a “Good Immigrant” vs. “Bad Immigrant” dichotomy that continues to shape national mythology.
Treaty of Guadalupe Hidalgo
Executive Orders: Bracero Program and EO 9066
Executive Order 9066 (Japanese Internment): “Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War… to prescribe military areas… from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restriction the Secretary of War… may impose in his discretion.”
Key Cases
Wong Kim Ark
The Plenary Trilogy: Chae Chan Ping, Ekiu, and Fong Yue Ting
How do these cases collectively create the building blocks for plenary power? The Plenary Trilogy establishes the foundations of federal authority in immigration law.
- Chae Chan Ping v. United States (1889): Chae Chan Ping left the U.S. with a re-entry permit, but the law changed while he was abroad, and he was denied re-entry. The Court held that the federal government’s power to exclude is absolute, exclusive, and not subject to judicial review, based on the inherent nature of sovereignty.
- Nishimura Ekiu v. United States (1892): Ekiu was excluded as “likely to become a public charge.” The Court upheld her exclusion, stating that whatever process Congress provides is considered due process of law for immigration matters.
- Fong Yue Ting v. United States (1893): This case involved Chinese laborers arrested for lacking residency certificates under the Geary Act. The Court held that the power to deport rests on the same grounds as the power to exclude and is equally absolute. It established that deportation is not “punishment” in the constitutional sense, so criminal due process protections do not apply.
Prerequisite Cases: Ozawa, Thind, Rodriguez, and Mohriez
What are the four rationales the Supreme Court used to determine eligibility to naturalize in the racial prerequisite cases? (Haney Lopez)
- Common Knowledge: Appealing to popular, everyday conceptions of race.
- Scientific Evidence: Relying on theories from ethnologists and anthropologists (e.g., “Caucasian”).
- Congressional Intent: Examining the original purpose of Congress when passing naturalization laws.
- Legal Precedent: Resting on previous court decisions regarding racial status.
Ozawa v. United States (1922): The Court ruled Japanese people were not “white” because they were not “Caucasian,” rejecting a literal skin-color test.
United States v. Thind (1923): Only months later, the Court repudiated its reliance on science when an Asian Indian man argued he was “Caucasian.” The Court ruled he was not “white” because the “common man” would not recognize him as such.
In re Rodriguez (1897): A Texas court held Mexicans were eligible to naturalize based on legal precedent (treaties) rather than racial classification.
Ex parte Mohriez (1944): Held that Arabians were “white” based on common knowledge and legal precedent, following decades of fluctuating litigation.
Japanese Internment Cases: Hirabayashi, Korematsu, and Ex Parte Endo
How did the courts justify Japanese-American internment? The Supreme Court justified these actions by deferring to the political branches and invoking war powers.
- Hirabayashi v. United States (1943): Upheld a military curfew, reasoning that the danger of espionage during wartime justified race-based distinctions.
- Yasui v. United States (1943): Upheld the validity of the curfew as applied to a U.S. citizen.
- Korematsu v. United States (1944): Upheld the exclusion order. While stating racial classifications are subject to strict scrutiny, the Court deferred to military judgment, allowing war powers to override constitutional protections in practice.
- Ex Parte Endo (1944): The Court ordered the release of a “concededly loyal” citizen, ruling that the government could not detain citizens once their loyalty was established, though it avoided ruling on the broader constitutionality of the internment program itself.