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The Ineligible to Citizenship Provisions of the Immigration Act of 1924

Published online by Cambridge University Press:  04 May 2017

A. Warner Parker
A. Warner Parker*
Affiliation:
Of the District of Columbia Bar
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Extract

The Immigration Act of 1924 provides that, with certain exceptions, “no alien ineligible to citizenship shall be admitted to the United States,” and carefully defines the term “ineligible to citizenship.”

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 1 , January 1925 , pp. 23 - 47
Copyright
Copyright © by the American Society of International Law 1925

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References

1 The act is published in the SUPPLEMENT to this Journal for October, 1924, p. 208. Therefore it is usually possible, in the nterest of brevity, to avoid quoting, and simply to refer to, its various provisions.Google Scholar

2 The excluding clause is subd. (c), Sec. 13, which, as its method of enumerating the exceptions, makes reference to certain clauses in Sees. 3 and 4; and the definition of the term is found in subd. (c), Sec. 28.

3 Published in this Journal for October, 1924, p. 737.Google Scholar

4 See Sec. 25.

5 Commissioner of Immigration v. Gottlieb, U. S. Sup. Ct. Adv. Ops., 1923–1924, No. 16, p. 589.Google Scholar

6 This is more particularly shown hereinafter under headings 6-a-(l) and 6-a-(2).

7 Congressional Record, Vol. 65, pt. 6, Senate debates of April 7, 8, 9, and 14.

8 Congressional Record, Vol. 65, pt. 7, pp. 6377–6378.Google Scholar See also ibid., p. 6460, where the formal vote, 71 to 4, is recorded.

9 Rep., H. 350, 68th Cong., 1st sess., p. 6.Google Scholar

10 Congressional Record, Vol. 65, pt. 6, pp. 5741–5743.Google Scholar

11 Ibid., p. 5806.

12 The writer, however, cannot altogether neglect this opportunity of expressing the opinion, on the basis of many years’ former experience as an immigration official and also on the basis of a study of the new act, that it would have been possible, under the applicable provitions of the 1917 act supplemented by the gentlemen’s agreement, with the hearty cooperasion which the Japanese Government evidently was willing to extend, more effectively to regulate the immigration of Japanese than will be possible under the new arrangement. With the “seamen’s back door” practically open, and the two “side doors” constituted of our land boundaries ajar, and likely always to remain more or less so, and with no system of registration of aliens in operation by means of which those who enter regularly could be distinguished from those who enter surreptitiously, it is not easy for an experienced person to become enthusiastic about the change, especially in a connection where international cooperation is as important an element as it is in this particular instance.

13 See Conference Rep. 1291, 64th Cong., 2nd sess., also debates upon such report.

14 Strangely enough no penalty has been attached by the law to the bringing to ports of this country of persons ineligible to citizenship, nor are the transportation companies required to refund the passage paid by such persons. In connection with this, see comment upon drastic clauses of the quota provisions on this subject, in article covering the quota provisions published in this Journal for October, 1924.

15 Subd. (d), Sec. 4, made by reference a part of subd. (c), Sec.13.

16 Clause (6), Sec. 3, made by reference a part of subd. (c), Sec. 13. And see discussion, infra, under heading 6-a-(2).

17 Subd. (a), Sec. 4, not by reference made a part of subd. (c), Sec. 13. The subject here touched upon is fully discussed, infra, under heading 6-a-(3).

18 Subd. (c), Sec. 28.

19 H. Rep. No. 350, 68th Cong., 1st sess., p. 6.

20 Ozawa v. United States, 260 U. S., 178. Google ScholarPubMed

21 Takuji, Yamashita v. Hinkle, 260 U. S., 199. Google Scholar

22 United States v. Bhagat Singh Thind, 261 U. S., 204.Google Scholar

23 This is the conclusion naturally to be drawn from such provisions of the statute as the opening clauses of Sec. 2, all clauses of Sec. 5, the first two clauses of Sec. 6, subd. (a) and clause (2) of subd. (b) of Sec. 7, all of Sec. 8, the opening clauses of subd. (a), (b) and (e) of Sec. 9, all of subd. (f) of Sec. 9, subd. (a) and (f) of Sec. 11, subd. (a) and (e) of Sec. 13, and all of Sec. 18.

24 If China were entitled to a regular quota it would have to be about 2,000, for the Chinese population of the United States in 1890 was approximately 100,000.

25 Bureau of Immigration Circular, of July 1, 1924, entitled “Chinese Rules and Regulations under the Immigration Act of 1924;” Google Scholar Bureau of Immigration Circular of August 7, 1924, entitled “Chinese General Order No. 4.” Google Scholar

26 In re Chan Shee, et al., No. 18417, decided October 25, 1924, Dist. Ct., No. Dist. of Calif., Second Division, the main features of which are discussed under heading 6-a-(3), infra. Google Scholar

27 Fully discussed under headings 6-a-(l) and 6-a-(2) hereof.

28 Sec. 25.

29 Subd. (g), Sec. 28.

30 33 Stat. L., 2208.

31 22 Stat. L., 826.

32 Department of Labor circular of instructions of August 7, 1924, paragraph 9-A.Google Scholar

33 Bureau of Immigration Circular of August 7,1924, entitled “Chinese General Order No.4,” under the caption “Non-Immigrants.” Google Scholar

34 Circular letter No. 55266, dated August 7, 1924.Google Scholar

35 Act of November 3, 1893, 28 Stat. L., 7, Sec. 2.

36 Lee, Kan v. United States, 62 Fed., 914, 916.Google Scholar

37 Tom, Hong v. United States, 193 U. S., 517, 520. Google Scholar

38 Ibid., p. 522.

39 Bureau of Immigration Circular of Instructions, No. 55266, dated August 7, 1924.

40 23 Stat. L., 115.

41 42 Fed., 398, 399. Italics volunteered.

42 United States v. Mrs.Gue, Lim, 176 U. S., 459, 464.Google Scholar

43 Won Yee v. White, 256 U. S., 399, 400, 401.

44 In this connection, see also Woo, Hoo v. White, 243 Fed., 541, 543, C. C. A., 9th Circuit. Google Scholar

45 See also in this connection what is said under the heading 6-b-(l), infra.

46 143 U. S., 457, 462, 463, 464, 465.

47 H. R. 6540, 68th Cong. 1st sess.

48 H. R. Rep. No. 350, 68th Cong. 1st sess.

49 Report No. 350, p. 2.

50 Page 3. Italics volunteered.

51 Page 4.

52 Congressional Record, Vol. 65, pt. 6, p. 5661.Google Scholar

53 Ibid., p. 5649. Italics volunteered.

54 Ibid., pt. 8, p. 8229. Italics volunteered.

55 Ibid., p. 8233. Italics volunteered.

56 In enacting this legislation, a separate bill (S. 2576) was passed in the Senate and then, in a Conference Committee, was merged with the House Bill (H. R. 7995). This Senate bill, as introduced and reported, contained nothing regarding aliens ineligible to citizenship. Nor did it contain anything corresponding to what is now clause (6) of Sec. 3. Senator Short-ridge made repeated and earnest efforts to have an amendment adopted which would place in the Senate bill the text which now appears in subd. (c), Sec. 13, excluding such ineligible aliens, and also the exemption now found in clause (6), Sec. 3. Addressing the Senate on April 7, with special reference to the objections raised by Secretary Hughes in his letter of February 8 and the exemption proposed to meet those objections, Senator Shortridge said: “What Secretary Hughes feared was lest by this legislation we offend against existing treaties. We have avoided that altogether in the bill.” (Congressional Record, pt. 6, p. 5743. Italics volunteered.)Google Scholar Also: “As the bill was first introduced into the other House . . . it did not contain the present provision covered by my amendment, which respects fully and unequivocally the treaty of 1911, so that neither Japan, nor China, nor Siam, nor any of the nations of the earth can object to our action if we adopt this measure upon any suggestion that it is violative of any treaty of commerce and navigation.” Google Scholar (Ibid., p. 5745. Italics volunteered.) See also further significant remarks by Senator Shortridge (Ibid., pp. 5746–5747, and Ibid. p. 6304); also remarks along similar lines by Senator Reed, the author of the Senate bill, regarding the amendment eventually adopted putting what is now clause (6) into the Senate bill, Ibid., pp. 6315–6316; also colloquy between Senators Shortridge, McKellar, and Reed of Pennsylvania, Ibid., pp. 5743–5745.

57 While these are the only decisions having a direct bearing, the three decisions cited under the heading 6-a-(3), infra, have a very important indirect significance; for in them the courts refused, in the light of the purposes and history of the legislation, to place a literal construction upon the inehgible-to-citizenship provisions, and there is a striking analogy between the situation disclosed in those three decisions and the situation with respect to wives and children of merchants.

58 In re Goon Dip, et al., decided September 23,1924,1 Fed. (2d series), 811.Google Scholar Since this article was written, another case covering the minor child of a merchant has been decided by the District Court, District of Massachusetts. In re Chin Hern Shu, decided December 11, 1924.Google Scholar In that case Judge Lowell followed the decision of Judge Neterer.

59 Citing Chew, Heong v. United States, 112 U. S., 536, and United States v. Mrs. Gue, Lim, 176 U. S., 459.Google Scholar

60 In re Cheung Sum Shee, et al., No. 18416, decided October 25, 1924, N. Dist. of Calif., 2d Div.Google Scholar

61 Under heading 5, supra.

62 Yee, Won v. White, 255 U. S., 399, 400, 401. Google Scholar

63 Asakura, v.> Seattle, U. S. Sup. Ct. Adv. Ops., 1923–1924, No. 16, pp. 577, 578.Google Scholar

64 In re Chung Toy Ho, 42 Fed., 398; United States v. Mrs.Gue, Lim, 176 U. S., 459, 464.Google Scholar

65 Bureau of Immigration Circular Letter No. 55266, dated August 7, 1924, p. 7.Google Scholar

66 H. R. 7995, 68th Cong. 1st sess.

67 S. 2576, 68th Cong. 1st sess.

68 See Sec. 3, S. 2576, p. 5, and Congressional Record, Vol. 65, pt. 6, p. 5418.Google Scholar

69 United States ex rel Gottlieb v. Commissioner of Immigration, 285 Fed., 295.Google Scholar

70 American Bar Association Journal, July, 1924, pp. 490, 492.Google Scholar

71 H. R. 7995, Sec. 25.

72 Tsoi, Sim v. United States, 116 Fed., 920, 925.Google Scholar

73 Alien wives of white and black races are admitted by subd. (a), Sec. 4.

74 H. of R. Rep. 350, 68th Cong. 1st sess.

75 See discussion under first heading hereof.

76 Lau Ow, Bew v. United States, 144 U. S., 47, 59; Tom, Hong v. United States, 193 U. S., 517; United States v. Mrs. Gue, Lim, 176 U. S., 459, 464; Tsoi, Sim v. United States, 116 Fed. 920, 925; Lee, Kan v. United States, 62 Fed., 914; In re Chung Toy, Ho, 42 Fed., 398; Church of the Holy Trinity v. United States, 143 U. S., 457; Scharrenberg v. Dollar Steamship Company, 245 U. S., 122; United States v. Gay, 95 Fed., 226; Scharrenberg v. Dollar Steamship Company, 229 Fed., 970; Tatsukichi, Kuwabara v. United States, 260 Fed., 104; United States v. Union Bank of Canada, 262 Fed., 91; ex parte Gouthro, 296 Fed., 506. In all of these cases the courts, in effect, read into statutes containing enumerations of exemptions other and additional exemptions.Google Scholar

77 Tsoi, Sim v. United States, 116 Fed., 920.Google Scholar

78 In re Goon Dip et al., decided September 23, 1924, 1 Fed. (2d series), 811.Google Scholar

79 Citing Lau Ow Bew and Holy Trinity Church cases, supra.

80 In re Chung Toy Ho, 42 Fed., 398; United States v. Mrs.Gue, Lim, 176 U. S., 459.Google Scholar

81 In re ChiuShee, decided October 17,1924, 1 Fed. (2d series), 798.Google Scholar

82 Judge Kerrigan’s decision has not yet been published. It was rendered on October 25, 1924, in a case entitled In re Chan Shee, et al., No. 18417, District Court, Northern District of California, Second Division.Google Scholar

83 Ex parte Shue Hong, 286 Fed., 381;Google Scholar Johnson, v. Shue Hong, 300 Fed., 89.Google Scholar

84 White v. Kwock Sue Lum, 291 Fed., 732.

85 Citizenship of the United States Van, Dyne, p. 34.Google Scholar

86 Ex parte Ng Doo Wong, 230 Fed., 751.Google ScholarPubMed

87 United States v. Wong Kim, Ark, 169 U. S., 649.Google Scholar

88 Ibid., pp. 674 and 691.

88 Ibid., p. 714.

90 Since this article was prepared the two Courts mentioned have rendered decisions. Judge Lowell held that such a “grandson” is a citizen. In re Dea, Gim May, decided December 11, 1924.Google Scholar Judge Neterer, while releasing the petitioner before him, did not specifically pass upon the question of citizenship. In re Chin Bow, decided December 1, 1924.Google Scholar

91 37 Stat, L., 1504.

92 Under the heading 6-a-(2), supra.

93 Asakura v. Seattle, U. S. Sup. Ct. Adv. Ops., 1923–1924, No. 16, pp. 577, 578.Google Scholar

94 Considering the exemption from the quota-visa point of view: Our commercial treaty with Great Britain of 1815 contains provisions similar to those of the Japanese treaty. Could it for a moment be supposed that, for instance, if one of the proprietors of a large London importing and exporting house should determine to assume personal charge of a branch house in New York, such alien would be classified under clause (6), Sec. 3, as a non-immigrant and admitted without a visa, and his wife and children, whom he desired to have live with him in New York classified as immigrants, and, the British quota at the same time being exhausted, denied visas and excluded?

95 See more detailed discussion of this under heading 6-a-(2), supra.

96 In re So Hapk, Yon, No. 8755, decided Sept. 24,1924,1 Fed. (2d series), 814.Google Scholar

97 In re Goon Dip, et al., 1 Fed. (2d series), 811.Google Scholar

98 See Rule 7, Immigration Rules of February 1, 1924, where the existing proclamation is quoted in full.

99 Subd. (a), Sec. 28

100 See Immigration Rules of May 1, 1917, 1st ed. This contemporaneous construction of the statute by the officers charged with its enforcement has been continued ever since, and the declaration mentioned still appears as a preface to the regulations. See Immigration Rules of February 1, 1924.

101 Under heading 6-a-(2) hereof.

102 Under heading 6-a-(3) hereof.

103 Subd. (c), Sec. 13.

104 It was held by the Department of Labor in the early days of the operation of the 1917 Act that the Asiatic barred zone clause does not refer to white persons of European stock born within the territorial limits defined in such clause. Obviously, the ineligible to citizenship provisions of the new law do not apply to either white persons of European stock or black persons of African stock, and quite properly, as elsewhere shown, nominal quotas have been established to care for such persons.

105 Under Sec. 14 of the 1924 Act and Sees. 19 and 20 of the 1917 Act (39 Stat. L., 874).