How the Fight for Birthright Citizenship Shaped the History of Asian American Families

In August 1895, 24-year-old Wong Kim Ark returned home to San Francisco after a visit to China. He carried a departure statement attesting to his identity and legal status as a United States citizen born on American soil. But John H. Wise, collector of customs, refused to acknowledge this status, arguing that because Wong’s parents weren’t naturalized, he was ineligible for birthright citizenship. Wise ordered Wong deported, citing the 1882 Chinese Exclusion Act, which prohibited the immigration of Chinese laborers for ten years and barred Chinese people from becoming naturalized citizens.

Wise wasn’t the first to raise concerns about the legal status of children of Chinese ancestry born in the U.S. Nativist objections to these individuals’ birthright status (known as the jus soli principle) first emerged with debates over the 1866 passage of the 14th Amendment, which stated that all persons born or naturalized in the U.S. were citizens. Some white observers in the American West interpreted the amendment as an avenue for individuals of Chinese ancestry to procure citizenship but not equal civil rights, including the right to vote.

If Wise successfully stripped Wong of citizenship, his children (who were born in China but eligible on the basis of the jus sanguinis, or “right of blood,” principle) would lose their status as citizens, too. With no legal pathway to naturalization, they’d be permanent aliens if they chose to live in the U.S. On a broader scale, all children whose parents weren’t naturalized at the time of their birth would risk losing their citizenship.

Wong’s case would also have strengthened the U.S. government’s efforts to close a significant loophole in the Chinese Exclusion Act, which allowed immigration by certain exempted classes, including merchants, teachers, students, diplomats, tourists and U.S. citizens. If birthright children of Chinese ancestry (and their children in turn) were no longer considered citizens, they would lose their legal standing to reenter the U.S. after traveling abroad unless they belonged to one of the other exempted classes.

Far from simply accepting his deportation, Wong mounted a legal challenge while detained on a series of steamships off the coast of San Francisco. His case eventually reached the Supreme Court, which ruled in his favor in 1898, reaffirming the 14th Amendment’s declaration that “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.”

Wong’s troubles didn’t end with his victory in court. His continued struggles “demonstrate that the U.S. government was simply unwilling to accept that the native-born children of Chinese immigrants were Americans,” says Amanda Frost, an expert on constitutional, immigration and citizenship law at American University.

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Born in San Francisco’s Chinatown in 1870, Wong was 8 years old when his parents, Wee Lee and Wong Si Ping, decided to return to China. They were among the thousands of Chinese immigrants who’d come to the U.S. from the Guangdong province, seeking economic opportunities for themselves and their families. For many years, Si Ping ran a combined butcher shop and general store. But he and his wife had no legal pathway to secure U.S. citizenship, and they, like many immigrants with children born in the U.S., remained a mixed-status family permanently.

Wong’s parents were barred from becoming naturalized citizens by the 1878 In re Ah Yup case, which concluded that Chinese immigrants did not fall under the categories eligible for naturalization: “free white persons,” “aliens of African nativity … and persons of African descent.” The decision had implications for Wong’s later legal battle, too. While white and Black children stripped of their citizenship under the precedent set by Wise would be able to apply for naturalization, Asian ones would not, meaning they’d be reclassified as permanent aliens. In the early 1920s, in the Ozawa and Thind cases, the Supreme Court affirmed the exclusion of immigrants from certain parts of Asia from naturalization.

Life for Chinese Americans wasn’t easy at the turn of the 20th century. Many faced substantial racial discrimination. White residents across the West, at times supported by law enforcement, targeted immigrants, insisting the “Chinese Must Go.” In July 1877, the year before Wong’s family left the U.S., violent anti-Chinese riots broke out in San Francisco’s Chinatown. On top of these attacks, politicians and labor leaders advanced racist depictions of Chinese children as filthy, diseased and inherently inferior. They depicted the Chinese American family as the antithesis of the healthy, white American settler family the nation aspired to.

Though his parents resettled in China, Wong continued to travel between China and the U.S. As a child, he returned to the U.S. with his uncle and took up employment as a dishwasher and cook in a mining camp in the Sierra Nevada. In 1889, Wong visited China again and married 17-year-old Yee Shee. The couple conceived their first child, Wong Yook Fun, before Wong returned to the U.S. in 1890. Settling in his birthplace of San Francisco, Wong worked as a laborer and cook. He likely supported his family back in China by sending them money.

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Wong next saw his wife and son in December 1894, when he visited China and conceived a second child. Upon his return to the U.S. in August 1895, he was stopped by the collector of customs.

At the time, the Department of Justice was in search of a test case to challenge Chinese Americans’ birthright citizenship. In many ways, Wong was an ideal candidate. He was an adult day laborer with far more limited resources and social capital than the minor litigants in previous cases. Additionally, Wong’s parents, wife and children did not reside in the U.S., so the family would not be separated if he were deported.

In October, Wong successfully filed a writ of habeas corpus in district court. His lead attorney, Thomas D. Riordan, was on retainer with the Chinese Consolidated Benevolent Association, an organization that assisted immigrants. Riordan argued that Wong was unlawfully “imprisoned, detained, confined and restrained of his liberty” by Wise and D.D. Stubbs, general manager of the Occidental and Oriental Steamship Company. More broadly, Wong’s team argued that the 14th Amendment extended citizenship to all children born within the territorial jurisdiction of the U.S.

On the opposing side, the federal government was represented by U.S. District Attorney Henry S. Foote and legal scholar George Collins, a staunch advocate of stripping Chinese Americans of U.S. citizenship. The U.S. didn’t challenge the authenticity of Wong’s identity, paper documents or birthplace, as it routinely did in other cases. Instead, the government claimed Chinese children born to noncitizens were ineligible for birthright citizenship because they, like their parents, were the subjects of a foreign power.

The government’s argument was skillfully designed to exclude Wong under the 14th Amendment, which requires individuals eligible for birthright citizenship to be subject to U.S. jurisdiction. Congress had specifically designed the clause to deprive Native Americans of birthright status.

District Judge William W. Morrow ruled in Wong’s favor, leading the Department of Justice to appeal to the Supreme Court, which heard arguments in the case in early March 1897. U.S. Solicitor General Holmes Conrad presented the government’s arguments with the support of Collins, who prepared an amicus curiae brief, taking on the role of “friend” to the court as he continued to lobby against citizenship for Chinese Americans.

The legal arguments on both sides hinged on interpretations of the meaning of the word “jurisdiction” in the 14th Amendment. The majority held that anyone required to obey U.S. law was under the nation’s jurisdiction; the minority, meanwhile, argued that birthright citizenship should not apply to “the children of foreigners, happening to be born to them while passing through the country.” Ultimately, the court voted 6 to 2 in Wong’s favor.

In a majority opinion issued on March 28, 1898, Justice Horace Gray upheld the right of birthright citizenship for children born to alien immigrants, regardless of their parents’ legal status or race. The ruling reinscribed the principle of birthright citizenship in constitutional terms and clarified that it extended to the children of immigrants who were legally barred from the U.S. and prohibited from naturalization.

While United States v. Wong Kim Ark secured birthright citizenship for all children born in the U.S., it did not guarantee them equality within the nation’s borders. Nor did it guarantee women with birthright citizenship full protection from losing that citizenship. Over the next three decades, Congress employed naturalization law to strip women who married foreigners of their citizenship. The government also used the legislation as an anti-miscegenation measure, targeting women who married men of other nationalities.

Though legislation passed in the 1920s allowed wives whose husbands were eligible for naturalization to retain their citizenship, these measures didn’t apply to Asian men, who remained ineligible for naturalization. As a result, an unknown number of Puerto Rican, Mexican, European, Black and Asian women—including birthright citizens—lost their citizenship. It was only in 1931 that the law was amended, give women greater independent nationality rights.

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Following the Supreme Court’s ruling in Wong Kim Ark, children and wives of Asian ancestry, including birthright and derivative citizens (individuals who derive their status as citizens from their spouses or naturalized or birthright parents), continued to be denied admission at the U.S. border. Immigration authorities routinely compelled these women and children to prove their identity, paternity, age, command of English and knowledge of American customs. Family members were asked upward of 100 questions in some cases—Wong’s sons included.

Litigation was expensive for family members in the U.S., who had to pay for and arrange legal support, as well as reconfigure their time, energy and emotions to testify for arriving relatives, with no guarantee of admission. Detention was particularly difficult for unaccompanied minors, who struggled to manage without their family and find enough food amid stiff competition with older children and adults at San Francisco Bay’s Angel Island.

“Wong Kim Ark’s victory in the Supreme Court was only the start of his family’s struggle to establish their right to U.S. citizenship,” says Frost. “Wong Kim Ark was also arrested and nearly deported by immigration officials in 1901, three years after he was the named plaintiff in the Supreme Court case establishing birthright citizenship.”

In October 1910, Wong’s eldest son, Wong Yook Fun, was detained at Angel Island. Immigration authorities insisted Yook Fun could not establish himself as Wong’s son. He was deported in January 1911 despite his father’s accompanying testimony. Shortly thereafter, in 1913, Wong visited his family in China for the first time since 1905.

Wong’s other sons also sought entry to the U.S. They traveled on the heels of new federal immigration laws and legislative attempts to bar children of Asian ancestry from U.S. citizenship. During the 1910s and 1920s, American legislators submitted a handful of unsuccessful bills stripping children born to “foreign parentage” or parents ineligible for naturalization of birthright citizenship. The bills were specifically targeted at the birthright citizen children of Japanese immigrants in hopes of taking away their rights to home and property ownership. Congress didn’t pass the bills, but anti-Japanese sentiment during World War II brought new challenges for Japanese Americans, chief among them forcible incarceration as suspected “enemy aliens.”

Federal immigration law in the 1920s increasingly linked the right to family reunification with citizenship and exempted status. Following congressional approval for national quota laws in 1921 and 1924, male adult citizens in theory retained legal pathways to reunite with their families. But mixed-status Asian American families composed of birthright citizen children and noncitizen parents continued to face the threat of separation, leading some to choose voluntary deportation instead. Some women with birthright citizenship who married Asian noncitizens were encouraged to seek divorces to reinstate their citizenship and secure entry at the border.

In the early 1920s, federal courts upheld the right to family reunification for Asian wives and children of exempted classes such as merchants, granted they maintained their exempted status, but not for the Chinese wives of U.S. citizens, who were deemed to be “of a race or persons ineligible to citizenship.” On the ground, federal judges used their discretion to admit or deny wives traveling under more complex circumstances, including with children or while pregnant. Widowed wives of Asian ancestry were also separated from their birthright citizen children while awaiting deportation.

Asian children, including unaccompanied minors, and wives of U.S. citizens were routinely denied entry to the U.S., even if they could prove their identity, legal status and family relations. As Yukako Otori, a historian at Tokyo University of Foreign Studies, says:

There was a considerable gap between the Supreme Court’s affirmation of the jus soli principle and its implementation on the U.S. border. With the expansion of eugenics and medicalized border policing, child migrants, if deemed inadmissible for health reasons, became more likely to face deportation from the United States. This included children who were born in the country but returning from abroad, and those whose fathers were already naturalized and eligible to confer derivative citizenship on his foreign-born children upon their arrival.

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In 1924, Wong’s third son, Wong Yook Sue, traveled to the U.S. Like his father, he was married to a woman who remained in China. Yook Sue was denied admission. His father provided testimony through a translator, as he had for his eldest son. Yook Sue successfully appealed his case and was allowed to enter the U.S. as a citizen. Decades later, in 1960, he would admit to being Wong’s paper son—an immigrant who purports to be related to a U.S. citizen in order to gain admission—rather than his biological child. The scholar Bethany Berger suggests it’s possible that others who claimed Wong as their father were also paper sons. Yook Sue’s confession underlined how Wong was willing to test the limits of federal law despite the pains it had caused him already, and the ways Chinese exclusion continued to remake the American family through paper children.

In 1925, another of Wong’s sons, Wong Yook Thue, secured admission to the U.S. as a citizen with the aid of his father and brother. The following year, in 1926, Wong’s youngest son, 11-year-old Wong Yook Jim, arrived in San Francisco with his eldest brother, Yook Fun, who had been deported from the United States in 1911. Based on family data, historian Beatrice McKenzie posits that Yook Jim may have been Wong’s grandson. Yook Jim was detained at Angel Island and eventually released after Wong hired a lawyer and testified alongside Yook Sue.

Three of Wong’s four “sons” successfully immigrated to the U.S. But they, like their father, continued to live as laborers in a society that practiced both legal and social segregation. They also traveled back and forth from China, where Wong himself likely returned for the final time in 1931. Together, their stories highlight the transnational nature and odyssey of citizenship and Asian American families in U.S. history.

Hardeep Dhillon | | READ MORE

Hardeep Dhillon is a child of immigrants, a storyteller and a historian. Currently a fellow at the American Bar Foundation, she will join the University of Pennsylvania’s faculty in fall 2023.