untitled

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 1 8-FEB-23 10:47

From the Chinese Exclusion Act to the Muslim

Ban: An Immigration System Built on

Systemic Racism

Tina Al-khersan* & Azadeh Shahshahani**

NTRODUCTION

................................................. 131

I. A

PEN

OOR

HITE

MMIGRANTS

................ 133

II. C

LOSING THE

OOR FOR

ONWHITE

MMIGRANTS

......... 136

III. J

USTIFYING THE

XCLUSION OF

ONWHITE

MMIGRANTS

... 136

A. The Portrayal of Nonwhite Immigrants as Economic Threats . 136

B. The Portrayal of Nonwhite Immigrants as National Security

Threats ................................................ 140

C. The Racialization of Muslim Immigrants as Nonwhite ...... 143

IV. T

UPREME

OURT

’

ISTORY OF

XCLUSION

: F

ROM

HAE

HAN

ING TO THE

USLIM

.................. 148

V. T

UMAN

MPACT OF THE

USLIM

................ 152

ONCLUSION

................................................... 155

NTRODUCTION

On January 27, 2017, the first version of President Donald Trump’s

travel ban [hereinafter the Muslim Ban or the Ban] went into effect. It

targeted nationals from Muslim majority countries including Iran, Iraq,

Libya, Somalia, Sudan, Syria, and Yemen.

It also indefinitely barred Syrian

refugees, cut the total number of refugees allowed to be resettled to the

United States by more than half, suspended the refugee admissions program,

and prioritized the admission of non-Muslim religious minorities.

While

the first Muslim Ban was challenged in court, the Executive Order went

through another iteration in March,

until it settled in its final form in Sep-

tember 2017. In this Presidential Proclamation, President Trump indefi-

* Tina Al-khersan is a graduate of the University of Michigan Law School (2022).

** Azadeh Shahshahani is Legal & Advocacy Director at Project South and a past president

of the National Lawyers Guild. The authors would like to thank attorneys Elica Vafaie and

Max Wolson for their review and feedback on the article. The authors would also like to

highlight that while this article was written and accepted for publication prior to President Joe

Biden’s election and subsequent reversal of the Muslim Ban, the premise of the article remains

relevant: systemic exclusion of nonwhite individuals from the United States is a trend that

extends back into the 1800s and continues today. To prevent immigration policies steeped in

white supremacy from being enacted in the future, such a trend must be acknowledged, dis-

cusssed, and then dismantled.

Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

Myth v. Fact: Trump’s Refugee and Immigration Executive Order, H

UMAN

IGHTS

IRST

(Feb. 7, 2017), https://www.humanrightsfirst.org/resource/myth-v-fact-trumps-refugee-and-

immigration-executive-order [https://perma.cc/3W4Q-GXKA].

Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017).

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 2 8-FEB-23 10:47

132 Harvard Law & Policy Review [Vol. 17

nitely prohibited nationals from six Muslim-majority countries from

entering the United States.

This list included Iran, Libya, Somalia, Sudan,

Syria, and Yemen, in addition to North Korea and all government officials

from Venezuela.

A month after the third iteration of the Muslim Ban was

enacted, the portion banning refugees expired, so President Trump issued a

separate Executive Order that slowed down the resettlement process and ef-

fectively dismantled the resettlement program.

This new Refugee Ban im-

posed extreme vetting policies and introduced another 90-day ban on eleven

countries, nine of which have a Muslim-majority population: Egypt, Iran,

Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen.

Despite swift public

outcry that denounced President Trump’s executive orders as xenophobic,

the Supreme Court of the United States upheld the third iteration of the ban

on June 26th, 2018.

Unsurprisingly, the implementation of the Bans resulted in devastating

consequences for refugees and immigrants worldwide. In the short term, the

confusion and chaos that ensued after the first Ban led to the detention of

individuals in airports, stranded refugee families who were due to arrive in

the United States abroad, and even resulted in the expulsion of refugee fami-

lies who had just arrived to the United States.

Subsequent iterations of the

Ban would also indefinitely separate families, prohibit students from contin-

uing their studies, and prevent sick individuals from accessing necessary

medical treatment.

And while the long-term impacts of the Ban are yet to

be fully determined, one notable effect is the drastic decrease in the number

of refugees resettled in the United States, particularly of Muslims

—

a de-

crease that will negatively impact refugee resettlement in the United States

for years to come.

Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017).

Id.

Exec. Order No. 13,815, 82 Fed. Reg. 50055 (Oct. 24, 2017); See Susan Nahvi, Trump’s

Muslim and Refugee Ban: Where are We Now?, F

RIENDS

OMM

’

EGIS

. (Jan. 24,

2018), https://www.fcnl.org/updates/trump-s-muslim-and-refugee-ban-where-are-we-now-

1222 [https://perma.cc/KDN6-EF64].

Id.

Trump v. Hawaii, 323 U.S. 214 (2018).

Jeremy Diamond & Steve Almasy, Trump’s Immigration Ban Sends Shockwaves, CNN,

(Jan. 30, 2017), https://www.cnn.com/2017/01/28/politics/donald-trump-executive-order-im-

migration-reaction/ [https://perma.cc/75T4-RUFA].

E.g., Sabrina Siddiqui, ‘A Hellish Nightmare’: How Trump’s Travel Ban Hit a Syrian

Refugee Family, T

UARDIAN

(Jan. 30, 2017), https://www.theguardian.com/world/2018/

feb/04/syrian -refugee-family-trump-travel-ban-virginia [https://perma.cc/7S3B-ZUU6];

Karen Zraick, Iranian Students Set to Start at U.S. Universities Are Barred From Country, N.Y.

IMES

(Sept. 20, 2019) [hereinafter Zraick] https://www.nytimes.com/2019/09/20/us/ira-

nian-students-visas.html [https://perma.cc/H697-4TH6]; The Muslim Ban: Discriminatory

Impacts and Lack of Accountability, C

. F

ONST

. R

(Jan. 14, 2019) [hereinafter The

Muslim Ban], https://ccrjustice.org/home/get-involved/tools-resources/publications/muslim-

ban-discriminatory-impacts-and-lack [ https://perma.cc/5JNQ-E4PH].

Int’l Rescue Comm., New IRC Analysis of US Refugee Resettlement Shows Vastly

Reduced Arrivals at a Time of Record Global Need and Consistent Popular Support (June 18,

2019) (on file with author); see, e.g., Amanda Holpuch, Trump Has Nearly Destroyed US Refu-

gee Program, Experts Say, T

UARDIAN

(Sept. 28, 2019), https://www.theguardian.com/

world/2019/sep/27/trump-refugee-cap-asylum-program [https://perma.cc/ETW6-5G6Y].

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 3 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 133

In response to the Muslim Ban, thousands of individuals took to the

streets to protest that the Ban did not align with “American values,”

but

this article demonstrates that the Ban is a continuation of U.S. immigration

policies that have long been driven by racism and exclusion. Although immi-

gration to the United States was relatively unrestricted in the first few hun-

dred years after the country’s founding, qualitative and quantitative

restrictions were subsequently enacted to exclude nonwhite individuals from

naturalizing. As immigration policies became increasingly predicated on

one’s whiteness, judges sought to define the concept by creating “tests” based

on common knowledge and science. These tests were designed to exclude

nonwhite immigrants, including Muslims from traveling to the United

States and becoming American long before the enactment of the Muslim

Ban. When whiteness was no longer explicitly the test for allowing immi-

grants into the United States, various administrations used economic or na-

tional security arguments to continue to inhibit nonwhite individuals from

immigrating

—

a tactic that the Muslim Ban adopted. Such racist immigra-

tion policy coming out of the legislative and executive branch has endured

for centuries in part because of the plenary power doctrine, which allows the

Supreme Court to ignore even overt animus under the guise of deferential

review. Together, these arguments prove that despite the public outcry that

erupted after the implementation of the Muslim Ban, the Muslim Ban fit

right in with “American values.”

To work towards an immigration system that does not operate on ra-

cism and exclusion, it is necessary to document and discuss this country’s

dark history. This article attempts to do just that. By no means an exhaustive

summary of racist U.S. immigration policy, this article highlights the ways in

which white supremacy has maintained and defined the U.S. immigration

system, harming countless individuals in the process. Only once we confront

the dark history of the U.S. immigration system and the legal mechanisms

that prop it up will we be able to work towards legal solutions that contribute

to a more inclusive immigration system.

I. A

PEN

OOR

HITE

MMIGRANTS

When European colonization of the United States first began in 1492,

it was accompanied by an era of unrestricted immigration that lasted until

1875.

The first ten presidents believed that immigration benefitted the

See, e.g., Lauren Gambino, Sabrina Siddiqui, Paul Owen & Edward Helmore,

Thousands Protest Against Trump Travel Ban in Cities and Airports Nationwide, T

UARD-

IAN

(Jan. 30, 2017), https://www.theguardian.com/us-news/2017/jan/29/protest-trump-

travel-ban-muslims-airportsl [https://perma.cc/6NRE-LELG]; Joshua Kurtz, Activists Protest

Supreme Court Muslim Ban Decision, HIAS (June 27, 2018), https://www.hias.org/blog/activ-

ists-protest-supreme-court-muslim-ban-decision [https://perma.cc/P5M8-7FPE].

Walter A. Ewing, Opportunity and Exclusion: A Brief History of US Immigration Policy,

. I

MMIGR

. C

OUNCIL

, 2 (Jan. 2012) [hereinafter Ewing], https://www.americanimmigra-

tioncouncil.org/sites/default/files/research/opportunity_exclusion_011312.pdf [https://

perma.cc/PSY2-6WKJ].

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 4 8-FEB-23 10:47

134 Harvard Law & Policy Review [Vol. 17

overall health and prosperity of the country, so they effectively established a

pro-immigration consensus.

Therefore, immigration policy during this

time is often categorized as an open-door policy, one that was driven by the

United States’ need for labor.

However, even during this era of relatively urestricted immigration, the

door was only open to some. Congress’s first act to address immigration was

the Naturalization Act of 1790, which recognized immigrants who were

“free white persons” of “good moral character” as eligible for naturalization.

This resulted in whiteness serving as a proxy for citizenship to the United

States, an idea that would define subsequent U.S. immigration policy for

centuries to come.

The question of who was considered white, however,

was not easily answered and often forced immigrants to prove their racial

identity in order to be eligible to naturalize.

Deciding who would be considered white in the United States and

therefore allowed to naturalize received particular attention when Irish

Catholics began to migrate to the United States.

Throughout the 1700s

and 1800s, Irish migrants arrived to the U.S. to escape famine, comprising

one of the earliest and largest non-English immigrant groups.

However,

many Irish immigrants identified as Catholic, which frustrated American

Protestants who considered Catholics to be nonwhite.

Thus, the arrival of

Irish Catholic immigrants ultimately resulted in the first successful anti-im-

migrant movement in the United States organized by the Know-Nothings.

The Know-Nothings were one of the first white supremacist groups in

the U.S. that opposed immigration and gained enough momentum to enter

the political realm, reaching one million members at their peak.

Not only

did members have to be native-born white Protestants, they also rejected

immigrants based on their religion and took an oath to resist foreign influ-

ences on the country.

Their success came from their ability to link “Ameri-

can values” to the image of an idealized past of the United States

—

an idea

that “Make America Great Again” iterates. Around the same time, the Ku

Klux Klan appeared in the North to defend “the country’s schools, govern-

OGER

ANIELS

, G

UARDING THE

OLDEN

OOR

: A

MERICAN

MMIGRATION

OL-

ICY AND

MMIGRANTS

INCE

1882 6 (2005).

Philip Martin & Elizabeth Midgley, Immigration: Shaping and Reshaping America, P

OP-

ULATION

ULL

., 12 (Dec. 2006) [hereinafter Martin], https://www.prb.org/wp-content/

uploads/2006/12/61.4USMigration.pdf [https://perma.cc/JZJ8-T5KQ].

Naturalization Act of 1790, 1 Stat. 103, 103–04 (1790) (repealed 1795).

Richard A. Boswell, Racism and U.S. Immigration Law: Prospects for Reform After “9/

11?”, 7 J. G

ENDER

ACE

& J

UST

. 315, 319–20 (2003) [hereinafter Boswell].

Benjamin Oppenheimer, Swati Prakash & Rachel Burns, Playing the Trump Card: The

Enduring Legacy of Racism in Immigration Law, 26 B

ERKELEY

AZA

L. J. 1, 7–8 (2016).

Id.

Id. at 9.

A. Cheree Carlson, The Rhetoric of the Know-Nothing Party: Nativism as a Response to

the Rhetorical Situation, 54 S. C

OMM

. J. 364, 364–65 (1989) [hereinafter Carlson].

Id. at 367.

ANIELS

, supra note 14, at 10.

Carlson, supra note 21, at 276.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 5 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 135

ment, and social conduct” against Catholic immigrants.

The Klan’s white

supremacist, nativist ideologies were based on the idea that “American ide-

als” were too weak to withstand outside pressure, which necessarily meant

that any foreigners would subvert American culture.

Contrary to the Klan’s

approach, the Know-Nothings recognized that the country needed immi-

grants to succeed. Therefore, instead of arguing for the outright exclusion of

Catholics, they focused their attention on the assimilation of immigrants and

increasing the waiting time before naturalization.

This nativist rhetoric subsequently transformed into concrete law.

particular, New York and Massachusetts experienced great influxes of Irish

migrants in the 1840s and ‘50s and strengthened their laws to exclude Irish

and Catholic immigrants from entering their borders in fear of them becom-

ing economic burdens.

Their efforts resulted in the most advanced regula-

tory immigration systems among the seaboard states,

and the two states

would successfully transform their nativist states laws into federal ones as

immigration law shifted from state to federal control, resulting in the Immi-

gration Act of 1882.

Despite the initial anti-immigrant rhetoric Irish immigrants faced, both

anti-Irish sentiment and the Know-Nothings dissipated as Irish Catholics

were enveloped into the definition of white.

Germans, Eastern European

Jews, and Italians were also eventually categorized as white, despite facing

similar racialization to that of the Irish when they immigrated to the United

States.

Among the various reasons for the successful assimilation of Euro-

pean ethnic groups were their anti-Black attitudes and the expansion of the

country westward, both of which provided a path for Europeans and white

David Montgomery, Presidential Address: Racism, Immigrants, and Political Reform, 87 J.

. H

IST

. 1253, 1269 (2001) [hereinafter Montgomery].

Carlson, supra note 21, at 368.

Erika Lee, Immigrants and Immigration Law: A State of the Field Assessment, 18 J. A

THNIC

IST

. 85, 88 (1999) [hereinafter Lee].

Id. at 87. States had primary jurisdiction over immigration law prior to 1875. The only

exception was naturalization, which was controlled by the federal government.

Hidetaka Hirota, The Moment of Transition: State Officials, the Federal Government and

the Formation of American Immigration Policy, 99 J. A

. H

IST

. 1092, 1095 (2013) [hereinafter

Hirota].

Id.

While not directly at issue in this article, it is important to note that the Immigration

Act of 1882 created the public charge rule, a rule which was designed to exclude impoverished

Europeans or poor, nonwhite immigrant populations in general. Immigration Act of 1882, 22

Stat. 214 (1882); see generally, Hirota, supra note 29. The Trump administration moved to

expand the rule in 2018, which took effect nationwide in 2020, and the expansions are pre-

dicted to exclude green card applicants primarily from Asia, Latin America, and Africa. See

Hamutal Bernstein, Dulce Gonzalez, Michael Karpman & Stephen Zuckerman, Amid Confu-

sion over the Public Charge Rule, Immigrant Families Continued Avoiding Public Benefits in 2019,

RBAN

NST

. 1, 3 (May 2020), https://www.urban.org/sites/default/files/publication/102221/

amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-

benefits-in-2019_2.pdf [https://perma.cc/D6SQ-E72D].

Oppenheimer et al., supra note 18, at 9; Carlson, supra note 21, at 376–379.

Oppenheimer et al., supra note 18, at 7, 14, 17.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 6 8-FEB-23 10:47

136 Harvard Law & Policy Review [Vol. 17

Americans to form a white, cohesive social group that marginalized other

people including African-Americans, Indians, Asians, and Mexicans.

II. C

LOSING THE

OOR FOR

ONWHITE

MMIGRANTS

As European immigrants were categorized as white and immigration

policy shifted from state to federal control, nativist rhetoric targeted a differ-

ent population: Chinese immigrants.

In 1875, the U.S. passed the Page

Law, which was the first federal immigration law that regulated the admis-

sion of immigrants to the United States.

Specifically, the Page Law re-

stricted the entry of Chinese, Japanese, and other Asian laborers

involuntarily brought to the U.S. While nativism and xenophobia had always

been a part of U.S. immigration history, the Page Law marked the first time

the federal government yielded to nativist demands and restricted immigra-

tion by law.

A federal law emerged at this time for two main reasons: changes in the

racial, religious, ethnic, and cultural composition of the immigrant popula-

tion triggered xenophobic reactions, and the growth of the nation state

equipped the federal government with administrative capacity.

As the

demographics of the immigrant population began to change from European

to Asian migrants, white Americans grew more hostile towards immigrants,

calling for legislation that placed qualitative restrictions on immigrants per-

ceived as threatening. This would ultimately result in devastating legal con-

sequences for Chinese immigrants who were categorized as nonwhite.

this way, the exclusion of Chinese immigrants brought about an end to the

so-called open-door era of U.S. immigration policy.

III. J

USTIFYING THE

XCLUSION OF

ONWHITE

MMIGRANTS

A. The Portrayal of Nonwhite Immigrants as Economic Threats

The difference in legal outcomes for Chinese and Irish Catholic immi-

grants demonstrates the significance the racial category “white” has histori-

cally had on U.S. immigration policy. Because whiteness was not easily

defined when the U.S. began to exclude Chinese immigrants, Chinese im-

migrants were often portrayed as economic threats to justify their race-based

Monica McDermott & Frank L. Samson, White Racial and Ethnic Identity in the United

States, 31 A

. R

. S

. 245, 251 (2005).

Lee, supra note 27, at 89.

Id.

Id. at 88.

Whiteness was still a prerequisite for citizenship at this time. Martin & Midgley, supra

note 15, at 12.; Naturalization Act of 1790, 1 Stat. 103, 103–04 (1790).

Id.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 7 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 137

exclusion. In particular, the discovery of gold in California in 1848 attracted

over 300,000 Chinese laborers.

Before the passage of the Chinese Exclu-

sion Act in 1882, Chinese laborers were welcomed into the U.S. because

they worked in especially harsh conditions for long hours and received low

wages.

As soon as Chinese laborers began to see economic success, how-

ever, exclusionary immigration policy followed, including the Chinese Ex-

clusion Act of 1882.

Not only did the Act suspend the entry of Chinese

laborers for ten years, it rendered Chinese immigrants ineligible for

naturalization.

While the belief that Chinese immigrants were economic threats re-

sulted in restrictive immigration policy, a similar view of the Irish Catholics

did not. Instead, through legislation and court proceedings, the state legiti-

mized the racialization and subjugation of Chinese immigrants, but not of

the Irish Catholics. For example, while the state gave the Irish the ability to

naturalize and the right to vote, it did not do the same for Chinese laborers,

largely under the justification that Chinese individuals did not meet the defi-

nition of “free white persons.”

Among the three racial categories that ex-

isted at that time, courts often grouped Chinese immigrants as Indigenous

or Black instead of white.

Ultimately, the influx of Chinese immigrants forced courts to grapple

with the definition of white, causing whiteness to become more than a race;

whiteness granted individuals the rights and privileges of citizenship that

nonwhite individuals could not attain.

This notion was exemplified in Chae

Chan Ping v. United States, also known as the Chinese Exclusion Case.

Chae

Chan Ping was a Chinese citizen and legal resident of San Francisco who

decided to visit China twelve years after he arrived to the United States.

While he was abroad, an amendment was passed to the Chinese Exclusion

Act, resulting in the denial of his re-entry into the United States.

Although

he subsequently challenged the denial, the Supreme Court rejected his chal-

lenge, acknowledging the Act’s racist rationale in their opinion but accepting

it as legitimate.

In an attempt to define Chinese immigrants as nonwhite and therefore

preclude them from citizenship, Justice Stephen Field emphasized the sup-

posed differences between Chinese immigrants and American citizens. His

Oppenheimer et al., supra note 18, at 19.

Martin & Midgley, supra note 15, at 12.

Id. at 19–20.

The Chinese Exclusion Act would be extended again in 1892 for another ten years and

indefinitely in 1902. Ewing, supra note 13, at 3.

Erin L. Murphy, Prelude to Imperialism: Whiteness and Chinese Exclusion in the

Reimagining of the United States, 18 J. H

IST

. S

. 457, 470 (2005).

Id. at 470–72.

See id. at 460.

Chae Chan Ping v. United States, 130 U.S. 581 (1889); see also United States v. Wong

Kim Ark, 169 U.S. 649 (1898) (demonstrating that even U.S. citizenship could not guarantee

individuals with Chinese ancestry the rights and privileges associated with whiteness).

Chae Chan Ping, 130 U.S. at 581–82.

Oppenheimer et al., supra note 18, at 22.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 8 8-FEB-23 10:47

138 Harvard Law & Policy Review [Vol. 17

unanimous opinion explained that Chinese individuals in the United States

were “adhering to the customs and usages of their own country,” which

made it “impossible for them to assimilate with our people, or to make any

change in their habits or modes of living.”

Well-known figures like Theo-

dore Roosevelt also celebrated the passage of the Act, claiming that Chinese

individuals should be kept out of the country because their presence was

“ruinous to the white race” and threatened democracy.

Throughout the 1900s, other Asian immigrant groups faced discrimi-

natory immigration policies as well, such as the Japanese. For example, in

1907 President Roosevelt persuaded the Japanese government to enter into

the Gentlemen’s Agreement, which resulted in Japan denying passports to

Japanese laborers intending to enter the U.S.

The goal of the informal

agreement was to ease tensions arising within the United States as a result of

the growing presence of Japanese workers. In 1917, this exclusionary policy

was expanded when Congress created a geographic zone known as the

“Asia-Pacific Triangle” specifically designed to prohibit Asians, including

the already barred Chinese, from immigrating to the United States.

Just six years later, the Supreme Court cemented the idea that citizen-

ship was predicated on whiteness in United States v. Baghat Singh Thind.

Here, the Court rejected an Indian immigrant’s right to naturalize on the

grounds that children born to Hindu parents “would retain indefinitely the

clear evidence of their ancestry”

—

an ancestry that the Supreme Court de-

termined was incompatible with whiteness and therefore citizenship.

Prior

to this decision, debates in the courts about the boundaries of whiteness

revolved around two main theories: common knowledge and scientific evi-

dence.

The court in Thind, however, ultimately rejected the role of science

in racial assignments. Because science justified the categorization of some

individuals with dark skin as Caucasian, courts began to discredit science as

the measure of whiteness.

In other words, because science could not guar-

antee whites superiority in a racial hierarchy, courts instead made common

knowledge the arbiter of whiteness, holding that “free white persons” were

Chae Chan Ping, 130 U.S. at 595.

Motoe Sasaki, Excludable Aliens vs. One Nation People: The U.S. Chinese Exclusion Policy

and the Racialization of Chinese in the United States and China, 23 J

APANESE

J. A

. S

TUD

. 27,

33 (2012) [hereinafter Sasaki].

Julia G. Young, Making America 1920 Again? Nativism and US Immigration, Past and

Present, 5 J. M

IGRATION

& H

. S

. 217, 221 (2017).

Boswell, supra note 17, at 324.

United States v. Baghat Singh Thind, 261 U.S. 204 (1923).

Id. at 215.

ANEY

OPEZ

, W

HITE

5–7 (1996).

This transformation occurred over a series of cases, including In re Ah Yup, 1 F. Cas.

223 (C.C.D. Cal. 1878), and Ozaawa v. United States, 260 U.S. 178 (1922). However, the

Thind case best demonstrates the divergence of science and common knowledge in “determin-

ing one’s racial category.” In Thind, the Court believed that the inclusion of brown and Black

individuals meant that science had been manipulated to create a broader category of Cauca-

sians. Thind, 261 U.S. at 213-215.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 9 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 139

words that could be interpreted through the common individual’s

understanding.

To further confine immigration to “western and northern European

stock”

—

an idea that was driven by prominent eugenicists at the time

—

Congress enacted a quota in 1910 that limited the number of eastern and

southern Europeans entering the country.

This discriminatory quota was

made permanent with the passage of the National Origins Act of 1924.

The Act lowered the number of immigrants allowed into the U.S. to

150,000 individuals, as opposed to the previous cap of 350,000, and limited

the percentage of individuals from each nationality to two percent of the

members of that nationality present in the U.S.

A more complex quota

would govern U.S. immigration policy from 1929 until 1952, the year Con-

gress enacted the Immigration and Nationality Act and formally removed

whiteness as a prerequisite for citizenship.

Throughout the mid-1900s, other racist restrictions began to lift. In

1943, Congress repealed the Chinese Exclusion Act,

and in 1963 President

Kennedy proposed immigration reforms that would formally remove na-

tional origin as a barrier to immigration. His quantitative system relied on

skills needed in the United States, family ties to U.S. citizens, and priority

registration. It also included the first cap for immigrants coming from the

Western Hemisphere.

These reforms attempted to end racial and ethnic

exclusion and continue to define today’s immigration system.

Despite this

apparent progress, however, immigration policies to come would continue to

operate on an exclusionary basis but with national security as the

justification.

By using common knowledge to determine who was white, the Court furthered the

notion that whiteness stemmed from physical differences among individuals. This left the

Court to decide which physical differences were not white, paving the way for them to create a

legal construct of whiteness. Id.

Boswell, supra note 17, at 325 (citing U.S. Comm’n On Civil Rights, The Tarnished

Golden Door: Civil Rights Issues In Immigration 8 (1980).

Desmond King, Liberal and Illiberal Immigration Policy: A Comparison of Early British

(1905) and US (1924) Legislation, 1 T

OTALITARIAN

OVEMENTS

& P

. R

ELIGIONS

78, 82

(2000) [hereinafter King].

Boswell, supra note 17, at 325.

King, supra note 61, at 81–82.

This act is also known as the McCarran-Walter Act. Boswell, supra note 17, at 324–25.

Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882), repealed by Act of Dec. 17, 1943,

ch. 344 § 1, 57 Stat. 600 (1943).

Boswell, supra note 17, at 326–27

See Muzaffar Chishti, Faye Hipsman & Isabel Ball, Fifty Years On, the 1965 Immigra-

tion and Nationality Act Continues to Reshape the United States, M

IGRATION

’

NST

.: M

I-

GRATION

NFO

. S

OURCE

(Oct. 15, 2015), https://www.migrationpolicy.org/article/fifty-years-

1965-immigration-and-nationality-act-continues-reshape-united-states [https://perma.cc/

5MW4-38TC].

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 10 8-FEB-23 10:47

140 Harvard Law & Policy Review [Vol. 17

B. The Portrayal of Nonwhite Immigrants as National Security Threats

While the United States appeared to be advancing towards less racist

immigration policies in the mid-1900s, exclusionary policies directed at non-

white individuals were still enacted but now justified under the guise of na-

tional security. During the open-door era of immigration, national security

justifications were less of a concern as colonial leaders in the U.S. believed

that the strength of the country depended on the size of its population.

Therefore, the country looked to immigrants to provide protection and

wealth in case of catastrophic events like war.

While the founders did have

some concerns that immigrants could expose Americans to foreign spies or

use ethnic and racial violence to cause disruption in society, national security

did not define immigration policy.

This changed leading up to the Chinese Exclusion Act, where Chinese

individuals were portrayed as a direct threat to the peace and security of the

United States. U.S. citizens feared that the growing number of Chinese im-

migrants would result in an “Oriental invasion,”

in addition to the “race

suicide” of Anglo-Americans.

Such ideas permeated the Supreme Court,

which also endorsed the idea that Chinese individuals posed a threat to na-

tional security because of their supposed inability to assimilate into Ameri-

can society. Specifically, the Supreme Court espoused the notion that the

growing number of Chinese immigrants would ultimately result in a separate

“Chinese settlement within the state” that had no interest in the U.S. or its

institutions.

Ultimately, nativist rhetoric directed at Asian immigrants paved the

way for immigration policy to be utilized as an instrument of national self-

defense against racially suspect immigrants throughout the mid 1900s.

For

example, in 1942 President Franklin Roosevelt issued Executive Order 9066,

which allowed the military to enact policies necessary to preserve national

security, including the relocation and incarceration of individuals with Japa-

nese ancestry.

Fred Korematsu’s violation of this order resulted in the

landmark case Korematsu v. United States.

Although the Court in Kore-

matsu explained that all legal restrictions curtailing the rights of a single ra-

Robbie Totten, National Security and U.S. Immigration Policy, 39 J. I

NTERDISC

. H

IST

37, 38–39 (2008).

Id. at 46.

See id. at 43.

Chae Chan Ping v. United States, 130 U.S. 581, 595–96 (1889).

For more information on how the usage of the word “invasion” was instrumental in

developing an American national identity and in gatekeeping who belonged, see Erika Lee, The

Chinese Exclusion Example: Race, Immigration, and American Gatekeeping, 21 J. A

. E

THNIC

IST

. 36, 43 (2010).

Id.

Matthew Lindsay, Immigration as Invasion: Sovereignty, Security, and the Origins of the

Federal Immigration Power, 45 H

ARV

. C.R.-C.L. L. R

. 1, 7 (2010).

Exec. Order No. 9,066, 3 C.F.R. 1092 (1943).

323 U.S. 214 (1944).

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 11 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 141

cial group were immediately suspect, they upheld the constitutionality of the

order by using national security as a means to justify racial discrimination.

Recent U.S. presidents have continued to use national security to justify

racist and exclusionary immigration policies. After the September 11, 2001

attacks, national security became the dominant lens through which immigra-

tion policy was viewed under the Bush administration, and funding for im-

migration programs linked to “homeland security” experienced exponential

growth.

Immigration enforcement was also restructured from the local to

federal level, linking immigration to intelligence and law enforcement, which

in turn resulted in a closer connection between immigration and counterter-

rorism campaigns that disproportionately impacted Muslims.

For example,

one of the principal tactics used by the Bush Administration was detaining

noncitizens with possible ties to terrorism.

As evidenced by the “National

Security Entry and Exit Registration System” (NSEERS), these ties were

often assumed on the specious basis of national origin. Initiated in 2002,

NSEERS targeted men from predominantly Arab and Muslim countries in-

cluding Iran, Iraq, Libya, Sudan, Syria, Somalia, North Korea, and

Yemen

—

countries that have all been included in iterations of Trump’s Mus-

lim Ban.

NSEERS operated on the false notion that individuals from a

particular religion or nationality were more likely to commit acts of terror-

ism, but the program unsurprisingly failed to meet its declared objective of

identifying suspects involved in terrorism-related crimes.

Other efforts

under the Bush Administration that connected immigration to national se-

curity and disproportionately impacted Muslims include: the FBI con-

ducting interviews with Muslim and Iraqi immigrants to detect and prevent

Al-Qaeda acts of reprisal, Department of Homeland Security (DHS)

launching Operation Liberty Shield and requiring the detention of asylum

seekers from thirty-three countries where Al-Qaeda was known to operate,

and the Department of Justice (DOJ) designating several thousand men as

Id. at 216, 220.

ICHELLE

ITTELSTADT

, B

URKE

PEAKER

, D

ORIS

EISSNER

, M

UZAFFAR

HISHTI

, T

HROUGH THE

RISM OF

ATIONAL

ECURITY

: M

AJOR

MMIGRATION

OLICY

AND

ROGRAM

HANGES IN THE

ECADE SINCE

9/11, M

IGRATION

’

NST

. 1, 2 (Aug.

2011).

Id. at 5.

Shoba S. Wadhia, Business as Usual: Immigration and the National Security Exception,

114 P

ENN

. L R

. 1485, 1491 (2010).

Id. at 1503.

The NSEERS registration consisted of three main components. First, individuals from

the listed countries were required to be fingerprinted, photographed, and interrogated about

their background when entering or exiting the country. Second, individuals had to re-register

thirty days after their initial registration at a port-of-entry and annually if they stayed in the

United States for over a year. Lastly, individuals were required to register each time they left

the United States. Despite costing American taxpayers more than $10 million annually, there

is no evidence that NSEERS led to the identification of any individual suspected of terrorism,

Instead, it devastated family members and communities. R

IGHTS

. W

ORKING

ROUP

, T

NSEERS E

FFECT

: A D

ECADE OF

ACIAL

ROFILING

EAR

AND

ECRECY

15–16 (May

2012); National Security Entry-Exist Registration System (NSEERS) Freedom of Information Act

(FOIA) Request, C

. F

ONST

. R

(Apr. 15, 2019), https://ccrjustice.org/home/what-

we-do/our-cases/national-security-entry-exit-registration-system-nseers-freedom.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 12 8-FEB-23 10:47

142 Harvard Law & Policy Review [Vol. 17

“priority absconders” because they hailed from “countries in which there

ha[d] been al-Qaeda terrorist presence or activity.”

Moreover, in 2003, immigration-related functions once carried out by

the DOJ’s Immigration and Naturalization Service were transferred to DHS,

solidifying the fact that the administration viewed immigration as a national

security issue.

The creation of DHS was the largest reorganization of fed-

eral government responsibilities since the creation of the Defense Depart-

ment post-World War II, centralizing 22 federal agencies,

expanding U.S.

Customs and Border Protection (CBP), and creating U.S. Immigration and

Customs Enforcement (ICE).

During its initial stages, DHS even released

a memo explaining that the Department considered in their analysis race,

ethnicity, and an individual’s connections to countries associated with acts of

terrorism when there was a compelling government interest, demonstrating

that profiling individuals based on their nationality was permissible and even

preferred during the Bush Administration.

The Obama Administration also manipulated immigration law in the

name of national security.

Critics of the Obama Administration have

drawn attention to the ways in which his administration conflated immigra-

tion with counterterrorism programs and utilized lower due process protec-

tions afforded to immigrants to heighten surveillance and racially and

religiously profile individuals.

Additionally, Muslims during President Ba-

rack Obama’s tenure were subjected to preventive detention, exclusion based

on their political views, and potentially unconstitutional racial profiling.

And while the NSEERS program was indefinitely suspended in 2011, the

Obama administration continued to disproportionately detain and deport

Muslims, in addition to denying them immigration benefits, by portraying

lawful activities that they engaged in as dangerous.

In using national secur-

ity as a justification for the targeting of Muslims, U.S. policy positioned

ITTELSTADT ET AL

., supra note 78, at 6–7.

Wadhia, supra note 80, at 1513.

Dara K. Cohen, Mariano-Florentino Cu´ellar & Barry R. Weingast, Crisis Bureaucracy:

Homeland Security and the Political Design of Legal Mandates, 59 S

TAN

. L. R

. 673, 676

(2006).

History of ICE, U.S. I

MMIGR

. & C

USTOMS

’

(July 12, 2022), https://www.ice.gov/

features/history [https://perma.cc/FT47-5H9S].

Wadhia, supra note 80, at 1513 (citing Memorandum from Tom Ridge, Sec’y. of the

Dep’t of Homeland Security, on The Department of Homeland Security’s Commitment to

Race Neutrality in Law Enforcement Activities (June 1, 2004)).

Sudha Setty, Obama’s National Security Exceptionalism, 91 C

.-K

ENT

. L. R

. 91, 106

(2016) [hereinafter Setty]. See also Desir´ee Colom´e-Men´endez, Joachim A. Koops & Daan

Weggemans, A Country of Immigrants No More? The Securitization of Immigration in the Na-

tional Security Strategies of the United States of America, 7 G

LOBAL

. 1 (2021) (analyzing the

National Security Strategies published between 2002 and 2017 to explain how the Obama

administration reintroduced immigration as a security issue for the U.S.).

Setty, supra note 88. For a more detailed analysis of how the Obama administration’s

counterterrorism programs impacted Muslim, Arab, and South Asians, see also, Sudha Setty,

Country Report on Counterterrorism: United States of America, 62 A

. J. C

OMP

. L. 634 (2014).

Setty, supra note 88, at 108.

ENTER

UMAN

IGHTS AND

LOBAL

USTICE

, N.Y.U., A

SIAN

. L

EGAL

. & E

DUC

. F

UND

, U

NDER THE

ADAR

: M

USLIMS

EPORTED

, D

ETAINED

AND

E-

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 13 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 143

Muslim populations within the U.S. as a suspect and foreign group deserv-

ing of government discipline, a belief the Muslim Ban was predicated on.

C. The Racialization of Muslim Immigrants as Nonwhite

Despite Islam being a religion with adherents from countless racial and

ethnic backgrounds, Muslims immigrating to the U.S. have been racialized

as nonwhite and precluded from citizenship since the Naturalization Act of

1790.

In particular, the cases that reached the Supreme Court in the early

1900s highlight the problems that arose for Muslims when the courts at-

tempted to establish who was white by law.

As demonstrated in cases

where Christian, Middle Eastern immigrants were categorized within the

statutory definition of whiteness and were therefore able to naturalize,

Christianity often served as a proxy for whiteness.

Although early Muslim

migrants tried to persuade judges they were white, they were unsuccessful

due to Orientalist views that framed Islam as incompatible with Christianity

and therefore whiteness.

NIED ON

NSUBSTANTIATED

ERRORISM

LLEGATIONS

2 (2011), https://chrgj.org/wp-con-

tent/uploads/2016/09/undertheradar.pdf [https://perma.cc/VK8G-S8AJ].

Khaled Beydoun, “Muslim Bans” and the (Re)Making of Political Islamophobia, 2017 U.

. L. R

. 1733, 1741–47 (2017) (arguing that the Naturalization Act of 1790 operated as a

per se ban on Muslims as a person’s faith served as a proxy for whiteness or otherness) [herein-

after Beydoun].

Because race is a social construct, it is in part a legal construct as well. The law has been

used to create racial boundaries, define racial identities, and assign relative privilege and/or

disadvantage in society. One way the law has created race is by defining the meaning of white

and nonwhite, choosing which traits code as what race, and assigning that to individuals.

OPEZ

, supra note 57, 1–24. Although Islam is a religion and not a race, Islamophobia is often

classified as racism because it is a structural, racial project that maintains the race-based subor-

dination of marginalized groups and upholds white supremacist thought. In fact, the facial lens

on which Islamophobia operates is why a set of physical traits and characteristics can label

someone as Muslim, despite their actual religion or nationality. E

RIK

OVE

, I

SLAMOPHOBIA

AND

ACISM IN

MERICA

2–4 (2017). Outside of the law, the racialization of Muslims is less

determined by the absence of ethnic and racial uniformity among them, but more on the

narrow gaze of those who do the racializing. See Neil Gotanda, The Racialization of Islam in

American Law, 637 A

NNALS

. A

CAD

. P

. & S

. S

. 184, 13–14 (2011). Anti-Muslim

racism often implies that Muslim identity, and any negative characteristics associated with

Islam, are innate and unchangeable. Anna Sophie Lauwers, Is Islamophobia (Always) Racism?, 7

RITICAL

HIL

. R

ACE

306, 306 (2019).

Beydoun, supra note 92, at 1743.

Id. at 1742–43. Initially, Orientalist thought positioned immigrant Muslims as threats

to domestic interests. However, as Black Muslims who embraced Islam adopted a liberation

ideology against White Supremacy, Orientalist thought merged with anti-Black sentiment,

and Islam became associated with militant Blackness, radicalism, and violence. Its adherents,

therefore, were categorized as anti-American individuals who threatened democracy and for-

eign interests. For more information, see, Sahar Aziz, Orientalism, Empire, and The Racial

Muslim, in O

VERCOMING

RIENTALISM

: E

SSAYS IN

ONOR OF

OHN

L. E

SPOSITO

221

(Tamara Sonn, ed., 2021). The current racialization of Muslims often operates on two tropes:

the “Muslim terrorist” and the “good Muslim.” The good Muslims are model minorities who

can assimilate in the United States while the Muslim “terrorists” remain permanently foreign

due to their supposed opposition to U.S. goals and foreign policy. This racialization is similar

to that the Chinese faced in U.S. history, when they were perceived to be unable to assimilate

into U.S. life because of their race. See generally Gotanda, supra note 93.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 14 8-FEB-23 10:47

144 Harvard Law & Policy Review [Vol. 17

As courts began to use religion as a proxy for whiteness, they simultane-

ously grappled with how skin color impacted one’s categorization as white,

facing particular difficulty in classifying dark-skinned Arabs who were also

Christian. For example, in the 1913 case Ex parte Shahid, William Shahid

was an Arab Christian who attempted to rebut the notion that he was Mus-

lim.

The judge, however, viewed Shahid’s skin, which he described as the

color “of a walnut,” as proof that Shahid was in fact Muslim.

The judge

came to this conclusion by interpreting “free white persons” to mean the

same it did in 1790, limiting whiteness to Christian Europeans and their

descendants.

In this way, Ex parte Shahid helped create a legal white iden-

tity through a two-step process: first by deciding who was and was not

white, and second by subjugating nonwhites and excluding them from privi-

leges like the right to naturalize.

To be able to articulate what whiteness meant, the judge in Ex parte

Shahid also offered the idea that whiteness was an inherited and a commonly

recognized truth

—

one that Muslims did not belong to.

100

This notion was

solidified in the 1942 case In re Ahmed Hassan,

101

where the petitioner at-

tempted to prove his whiteness using both common knowledge and science,

despite the role of science being rejected earlier in United States v. Baghat

Singh Thind and Ex parte Shahid. Ultimately, the court in In re Ahmed Has-

san ruled that Arabs were not white for a variety of reasons, among them

being that they hailed from the “Mohammedan world,” could not assimilate

or intermarry due to their Muslim beliefs, and their skin color differed from

the Europeans.

102

In this case, the judge relied on both skin color and the

trope that Islam was incompatible with Christianity to delineate the bounda-

ries of whiteness. Thus, regardless of what test a judge was relying on in

delineating the boundaries of whiteness, judges were reluctant to conclude

that Muslims could or should be categorized as white under the law.

205 F.812, 813 (E.D.S.C. 1913).

Ex parte Shahid, 205 F. 812, 813 (E.D.S.C. 1913).

Id. at 814 (the judge determined the meaning of “free white persons” to be “all persons

belonging to the European races, then commonly counted as white, and their descendants.”

He went on to stipulate that this definition “would not mean a ‘Caucasian’ race; a term gener-

ally employed only after the date of the statute and in a most loose and indefinite way.” Ac-

knowledging the difficulties that arose with defining whiteness through “ocular inspection,”

however, he relied on geography as it was “at least capable of uniform application” and

“avoid[ed] the uncertainties of shades of color and invidious discriminations as the race of

individuals.”).

OPEZ

, supra note 57, at 19–20.

100

See Ex parte Shahid, 205 F. at 814, 816. The inheritability of whiteness was made clear

through the judge’s determination that only the descendants of Europeans were white. While

he acknowledged the illogical definition he proposed, explaining that whiteness “may not,

ethnologically or physiologically speaking, be a very clear and logical construction,” he still

insisted that whiteness was only supposed to include “fair-complexioned people.” He then

noted that the argument that Jews and Christians would be excluded from such a definition

was “unworthy of consideration,” yet did not extend the same courtesy to Muslims.

101

48 F. Supp. 843, 845 (E.D. Mich. 1942).

102

Id.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 15 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 145

Moreover, while the “free white persons” citizenship requirement was

formally removed in 1944, legal barriers implemented in recent history con-

tinue to categorize Muslims as nonwhite, thereby precluding them from cer-

tain rights and privileges granted to white people. This is perhaps most

salient with the implementation of the NSEERS program. In total, the pro-

gram targeted 25 countries, of which all but two were Muslim majority.

103

Targeting such a broad geographic region demonstrated that national secur-

ity did not serve as the sole justification of each country’s inclusion, especially

when considering the fact that most of the countries were allies of the

United States.

104

Instead, an individual’s “blood relationship” to Islam incited

the creation of the registration system,

105

playing on the notion presented in

Ex parte Shahid that whiteness was inheritable. By making the defining cri-

terion of registration the inheritability of Islam, the registration positioned

Islam as an innate and unchanging characteristic, one that negated whiteness

and inclusion in the U.S. permanently.

106

The Muslim Ban went one step further than the NSEERs program by

prohibiting Muslims from even entering the country, demonstrating that le-

gal barriers designed to racialize and exclude Muslims from the country were

becoming harsher and more effective. On January 27, 2017, President

Trump issued the first iteration of the Muslim Ban through an Executive

Order titled “Protecting the Nation from Foreign Terrorist Entry into the

United States.”

107

The Order restricted the entry of immigrants and nonim-

migrants from countries with predominantly Muslim populations, and its

stated purpose was to protect Americans from indiviuals who had hostile

attitudes toward the United States.

108

Countries were supposedly selected

based on terrorist threats they posed to the U.S.

109

A bipartisan group of

experts, however, argued that the order would in fact harm the country’s

national security and foreign policy interests.

110

One consular officer even

described Trump’s proposed waiver process as fraudulent.

111

103

These countries included: Iran, Iraq, Libya, Sudan, Syria, Egypt, Tunisia, Algeria,

Morocco, Somalia, Eritrea, Yemen, Kuwait, Saudi Arabia, United Arab Emirates, Qatar,

Oman, Bahrain, Lebanon, Jordan, Pakistan, Indonesia, Bangladesh, Afghanistan, and North

Korea. Moustafa Bayoumi, Racing Religion, 6 T

ENTENNIAL

. 267, 273 (2006).

104

Id. at 283.

105

Id.

106

See id. at 278.

107

Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

108

Id.

109

Id.

110

Experts argued that the Ban furthered ISIS and al-Qaida’s narrative that the West is

the enemy of Islam and responded to political rhetoric instead of data, among other things.

Nina Totenberg, Why Dozens of National Security Experts Have Come Out Against Trump’s

Travel Ban (Apr. 24, 2018), https://www.npr.org/2018/04/24/604949251/why-dozens-of-na-

tional-security-experts-have-come-out-against-trumps-travel-ban [https://perma.cc/DE8C-

ZKS9].

111

Id.; Jeremy Stahl, “The Waiver Process is Fraud”, S

LATE

(June 15, 2018), https://

slate.com/news-and-politics/2018/06/trump-travel-ban-waiver-process-is-a-sham-two-consu-

lar-officers-say.html [https://perma.cc/H9AR-64SY].

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 16 8-FEB-23 10:47

146 Harvard Law & Policy Review [Vol. 17

The Trump administration justified the Muslim Ban using section

212(f) of the Immigration and Nationality Act,

112

which allows the President

to suspend the entry of immigrants if their entry is found to be “detrimental

to the interests of the United States.”

113

While the Ban states that the na-

tional security standards to process visas, immigration petitions, and the

background checks of the banned countries were lacking, Trump’s historic

targeting of Muslim majority countries and Islamophobic comments demon-

strate that his immigration policy was also a reflection of his nativist attitude

towards Muslims.

114

Specifically, his nativist attitude and resulting policies

draw on historical immigration trends that privilege the “free white persons”

and weaponize the law to subjugate nonwhite groups and exclude them from

the rights and privileges that are granted to white individuals.

115

Just like

Justice Field argued in 1882 that it was impossible for Chinese individuals to

assimilate into American culture, President Trump has consistently argued

that Islam itself is incompatible with American society, portraying Muslims

as outsiders, enemies, and others who should not be offered citizenship.

116

furtherance of this narrative, Trump has publicly questioned the allegiance of

American Muslims to the United States, insinuating that Muslims are una-

ble to uphold American civic values and assimilate into the United States.

117

For example, the stated purpose of the first iteration of the Muslim Ban

included the line: “The United States cannot, and should not, admit those

who do not support the Constitution, or those who would place violent ide-

ologies over American law,”

118

making the assumption that individuals from

the banned countries espoused violent ideologies that were in direct opposi-

tion to the U.S. Constitution. This rhetoric portrays Muslims as intrinsically

un-American.

119

Yet in contrast, the first Muslim Ban also prioritized refu-

gee claims of religious-based persecution so long as the individual belonged

to a minority religion in the individual’s country.

120

Given that the countries

were predominantly Muslim, this meant that Christians and other non-

Muslim religious minorities would be prioritized for admittance to the

United States. Less than a week after the first Ban was issued, Trump explic-

itly stated that persecuted Christians would be given priority over other refu-

112

Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017).

113

Notably, various administrations prior to Trump have used the Immigration and Na-

tionality Act (INA) to justify racist immigration policy in the name of national security. See

ATE

M. M

ANUEL

, C

ONG

. R

ESEARCH

ERV

., R44743, E

XECUTIVE

UTHORITY TO

X-

CLUDE

LIENS

: I

RIEF

1 (2017) (citing P.L. 82–414, § 212(e), 66 Stat. 188 (June 27,

1952)).

114

Young, supra note 53, at 228–29.

115

Nadine Naber & Junaid Rana, The 21st Century Problem of Anti-Muslim Racism,

ADALIYYA

(July 25, 2019), https://www.jadaliyya.com/Details/39830 [https://perma.cc/

7B3A-KLA3].

116

Ruth Braunstein, Muslims as Outsiders, Enemies, and Others: The 2016 Presidential Elec-

tion and the Politics of Religious Exclusion, 5 A

. J. C

ULTURAL

. 355, 357–58 (2017).

117

Id.

118

Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017).

119

Braunstein, supra note 116, at 357–58.

120

Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017).

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 17 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 147

gees,

121

emphasizing that religion continued to serve as a proxy for whiteness

and therefore eligibility for citizenship.

Trump has also made many claims suggesting he views immigrants

from regions including Latin America, the Middle East, and Africa to be a

cultural threat to white Americans,

122

echoing Theodore Roosevelt’s claim

that the Chinese were “ruinous to the white race,”

123

except this time applied

to a much larger group of potential nonwhite immigrants. Trump has also

drawn direct comparisons to migration patterns in Europe, claiming that

immigration is changing Europe’s fabric and causing it to lose its culture

—

phenomenon that he wants to avoid in the United States.

124

When discuss-

ing the “American culture” that he is concerned about losing, Trump often

defines it in reference to popular white supremacist symbols like confederate

statues, making his rhetoric popular among white nationalists.

125

Then in January 2020, Trump expanded the ban to six more countries

that have significant Muslim populations, including Nigeria, Eritrea, Sudan,

Tanzania, Kyrgyzstan, and Myanmar.

126

The reasoning given for the expan-

sion was that the six countries were not meeting certain baseline standards

for security criteria and had deficiencies in sharing terrorist, criminal, or

identity information, leading to national security concerns.

127

However, crit-

ics were quick to point out several anomalies in the proclamation, proving

that it selectively applied criteria for deciding which countries to ban.

128

For

example, DHS initially labeled 47 countries as inadequate for their “identity-

management protocols, information-sharing practices, and risk factors;”

however, only seven of those countries became the target of the Muslim

121

Daniel Burke, Trump Says US Will Prioritize Christian Refugees, CNN (Jan. 30, 2017),

https://www.cnn.com/2017/01/27/politics/trump-christian-refugees/index.html.

122

See generally Jayashri Srikantiah & Shirin Sinnar, White Nationalism as Immigration

Policy, 71 S

TAN

. L. R

. O

NLINE

197 (2019).

123

Sasaki, supra note 52, at 27, 33.

124

Srikantiah & Sinnar, supra note 120, at 199 (quoting Donald J. Trump (@realDonald-

Trump), T

WITTER

(June 19, 2018, 6:52 AM).

125

Id. at 198. In a tweet, he explained that he was “sad to see the history and culture of our

great country being ripped apart with the removal of our beautiful statues and monuments.”

Libby Cathey, Trump’s History of Defending Confederate ‘Heritage’ Despite Political Risk: Analy-

sis, ABC N

EWS

(June 11, 2020), https://abcnews.go.com/Politics/trumps-history-defending-

confederate-heritage-political-risk-analysis/story?id=71199968 [https://perma.cc/D28R-

88NS]. White supremacist groups today continue to use nativist arguments motivated by ra-

cially oriented beliefs to unify their base against immigration to the United States. In particu-

lar, popular white supremacists Stephen Bannon and Sebastian Gorka, who were formally part

of the Trump administration, believe that Islam is an enemy ideology that the United States is

engaged in war with because Islam inherently opposes fundamental American Judeo-Christian

values. This echoes what Protestant Americans first argued when Catholic immigrants began

to arrive on the shores of the United States. See Jeffrey Haynes, Donald Trump, “Judeo-Chris-

tian Values,” and the “Clash of Civilizations”, 15 R

. F

AITH

& I

’

. 66, 68 (2017).

126

Proclamation No. 9983, 85 Fed. Reg. 6699 (2020).

127

Id.

128

See Harsha Panduranga, Faiza Patel & Michael W. Price, Extreme Vetting and the

Muslim Ban

RENNAN

. F

UST

—

13 (Oct. 2, 2017), https://

www.brennancenter.org/sites/default/files/2019-08/Report_extreme_vetting_full_10.2_0.pdf

[https://perma.cc/9WJT-BF8X].

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 18 8-FEB-23 10:47

148 Harvard Law & Policy Review [Vol. 17

Ban.

129

Moreover, DHS still recommended a travel ban for some countries

like Somalia even though they met all baseline requirements.

130

Lastly, the

main adviser behind the ban was Stephen Miller, whose leaked emails put on

full display his affinity for ending nonwhite immigration to the United

States due to his belief that nonwhite immigration constituted an attack on

the country.

131

Overall, the lack of objective data used to fashion the Muslim

Ban, combined with the authorship by white supremacists, demonstrates

that the Muslim Ban is a subjective immigration policy designed to exclude

Muslim, or nonwhite populations

—

one that is in line with the historical

racist and exclusionary policies the country has long operated on.

IV. T

UPREME

OURT

’

ISTORY OF

XCLUSION

: F

ROM

HAE

HAN

ING TO THE

USLIM

Given the exclusionary history of U.S. immigration policy, it is not sur-

prising that the Supreme Court in Trump v. Hawaii upheld the Muslim Ban

despite its overtly racist nature.

132

In justifying the outcome of the case amid

national outcry, the majority largely relied on the plenary power doctrine, a

doctrine that has racist underpinnings and has long been used to exclude

nonwhite immigrant groups. The plenary power doctrine affords the federal

government practically unchecked power to make decisions related to immi-

gration policy,

133

and scholars posit that its origins lie in Chae Chan Ping v.

United States.

134

The Court in Chae Chan Ping upheld the Chinese Exclusion Act of

1882, finding that the federal government had the right to exclude immi-

grants on any basis, including race and nationality,

135

as national security

decisions were “conclusive upon the judiciary.”

136

Four years later in Fong Yue

Ting v. United States,

137

the Court expanded its deferential stance when it

upheld a federal statute that made Chinese laborers presumptively deport-

able, determining that the lack of due process the petitioners faced was con-

stitutionally irrelevant because of Congress’s plenary power over

immigration.

138

Together, these early cases formed the backbone of the ple-

nary power doctrine and the Court’s extreme deference with regards to im-

129

Id. at 14.

130

Id.

131

Harsha Panduranga, Trump’s Expanded Travel Ban: New countries, Same Bigotry,

RENNAN

. F

UST

. (Feb. 11, 2020), https://www.brennancenter.org/our-work/analy-

sis-opinion/trumps-expanded-travel-ban-new-countries-same-bigotry [https://perma.cc/

S5QZ-XVWH].

132

138 S. Ct. 2392 (2018).

133

David S. Rubenstein & Pratheepan Gulasekaram, Immigration Exceptionalism, 111

NW. U. L. R

. 583, 584, 594 (2017).

134

Id. at 595.

135

Id.

136

Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889).

137

149 U.S. 698, 728 (1893).

138

Rubenstein & Gulasekaram, supra note 133, at 584, 594.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 19 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 149

migration policy, leading to a concept known as immigration

exceptionalism.

139

Since its racist inception, the plenary power doctrine has been used to

uphold racist and exclusionary immigration policies that target nonwhite

populations.

140

For example, federal courts have used the doctrine to justify

deportations based on national origin, excluding or deporting people based

on their political beliefs, denying individuals the right to due process in de-

portation proceedings, and allowing indefinite detention pending deporta-

tion.

141

The doctrine also justified the detention of Muslim, Middle Eastern,

and South Asian immigrants after September 11, 2001;

142

the federal gov-

ernment’s holding of American Indian resources in trust; and its avoidance

of extending constitutional protections to the residents of external U.S. colo-

nies.

143

Most relevant to this article, however, is the application of the ple-

nary power in Trump v. Hawaii, which mirrors the application of the

doctrine in Korematsu.

144

The Court in Trump v. Hawaii found that the Executive Order author-

izing the Muslim Ban did not exceed the President’s authority, was facially

neutral, and would survive even if the President’s intent was examined as the

order was based on legitimate purposes.

145

While the Court in Trump

claimed to overrule a narrow version of Korematsu, it actually embraced the

decision’s logic by relying on the plenary power to justify judicial passivity in

the immigration context in the face of overt animus.

146

In both Korematsu

and Trump, the Court argued that the judiciary did not have the institutional

139

The plenary power doctrine is the reason that immigration law is often described as

operating outside the purview of mainstream constitutional law, leading to what some describe

as immigration exceptionalism. For more information, see generally, Hiroshi Motomura, Immi-

gration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory

Interpretation, 100 Y

ALE

L.J. 545 (1990) (tracking the rise of the plenary power as the domi-

nant principle of immigration law and how that led to phantom norm decisions); David A.

Martin, Why Immigration’s Plenary Power Doctrine Endures, 68 O

KLA

. L. R

. 29 (2015) (ar-

guing that the plenary power has remained a defining feature of immigration law despite the

wide condemnation of Chae Chan Ping v. United States because of the Court’s concern that

lower courts would undervalue governmental interests if given wider authority to review); Ru-

benstein & Gulasekaram, supra note 133 (reconciling immigration exceptionalism across con-

stitutional dimensions including rights, federalism, and separation of powers).

140

See Robert S. Chang, Whitewashing Precedent: From the Chinese Exclusion Case to

Korematsu to the Muslim Travel Ban Cases, 68 C

ASE

W. R

. L. R

. 1183, 1192–1202

(2018).

141

Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The “Plenary

Power” Justification for On-Going Abuses of Human Rights, 10 A

SIAN

L.J. 13, 24 (2003).

142

Id. at 20–24.

143

Id. at 27–28.

144

Neal Kumar Katyal, Trump v. Hawaii: How the Supreme Court Simultaneously Over-

turned and Revived Korematsu, 128 Y

ALE

L.J. F. 641, 645 (2019).

145

Trump v. Hawaii, 138 S. Ct. 2392, 2410, 2418, 2420–21. (2018).

146

Erik K. Yamamoto & Rachel Oyama, Masquerading Behind a Fa¸cade of National Secur-

ity, 128 Y

ALE

L. J. 688 (2019) (citing Anil Kalhan, Trump v. Hawaii and Chief Justice Roberts’s

“Korematsu Overruled” Parlor Trick, A

. C

ONST

. S

’

(June 29, 2018), https://

www.acslaw.org/acsblog/trump-v-hawaii-and-chief-justice-robertss-korematsu-overruled-par-

lor-trick [https://perma.cc/BY3M-M7P3]).

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 20 8-FEB-23 10:47

150 Harvard Law & Policy Review [Vol. 17

competence necessary to review other branches’ decisions when it came to

matters of national security.

147

While the Court in Korematsu focused on its

lack of military expertise, the Court in Trump explained that it could not

substitute its own assessment for that of the Executive’s predictive judge-

ment.

148

Moreover, both majorities refused to consider the broader context

behind the policies, did not thoroughly examine the evidence, allowed for

improper information to go uncorrected, and rejected the dissent’s character-

ization of the facts, which recognized the racial animus and is discussed later

in this section.

149

In this way, the Court intentionally refused to examine the

exclusionary motives behind the policies, despite their overt racist nature that

treated an entire religious group and nationality as suspect.

150

In granting such wide deference to the executive branch in cases like

Trump, Korematsu, Fong Yue Ting, and Chae Chan Ping, the Court has taken

an active role in creating a racist immigration system that excludes entire

groups of nonwhite individuals. What’s worse is that while attorneys and

advocates may have previously experienced discomfort in citing to a widely

repudiated case like Korematsu to justify the Court’s blind deference to the

executive, attorneys can now openly cite Trump without fear of similar repri-

sal, creating new precedent that allows the judicial branch to more easily

defer to the executive regarding racist and exclusionary immigration policies

that infringe on fundamental liberties.

151

Inevitably, such extreme deference

will continue to allow immigration policy to operate on an exclusionary basis

even in the presence of explicit animus.

In light of the plenary power doctrine’s historically exclusionary applica-

tion, the doctrine has recently shown signs of erosion amidst changing views

among the legislature, judiciary, and the public at large.

152

In response, jus-

tices on the Supreme Court must find a new way to balance deference to

executive actions regarding immigration, with the explicit animus that some-

147

Katyal, supra note 144.

148

Id.

149

For a detailed analysis of the similarities between Korematsu and Hawaii see generally

id. (arguing that while Korematsu was overturned in Hawaii, the outcome of Hawaii recreated

the doctrine under another name and maintains the Court’s extreme deference given to the

Executive Branch).

150

Moreover, the majority invoked Kleindienst v. Mandel in their opinion to explain that

the Court does not look beyond potentially legitimate reasons offered by the executive branch

in cases that involve immigration supposedly impacting national security. Trump v. Hawaii,

138 S. Ct. 2392, 2419 (2018) (citing 408 U.S. 753 (1972)). Kleindienst, however, involved a

challenge to decisions made by federal officials that denied entry to individual foreign nationals

whereas the Muslim Ban prevents an entire group from entering the country. Earl M. Maltz,

The Constitution and the Trump Travel Ban, 22 L

EWIS

& C

LARK

L. R

391, 399 (2018).

151

See Yamamoto & Oyama, supra note 146, at 716.

152

Id. at 720–21. While the plenary power doctrine has received steady criticism over

time, some argue that the plenary power remains intact because the Supreme Court is con-

cerned that lower courts will undervalue governmental interests if given greater authority to

review political branch decisions. For a more thorough discussion, see David A. Martin, Why

Immigration’s Plenary Power Doctrine Endures, 68 O

KLA

. L. R

. 29 (2015).

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 21 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 151

times motivates such actions.

153

Countless scholars and practitioners of im-

migration law have proposed solutions regarding how to challenge the

application of the plenary power doctrine to better respond to explicit ani-

mus driving executive actions. For example, instead of granting total or no

deference to the political branches, Sahlini Bhargava Ray has proposed an

intermediate solution for courts. She suggests that courts use a mixed mo-

tives framework to invalidate a contested law where the same law would not

be promulgated but for animus.

154

In this scenario, a plaintiff would plead

animus with particularity, while the defendants would have an opportunity

to rebut a claim of animus with evidence of a sufficient legitimate purpose.

Ray’s proposed solution would thus allow the executive to enact policy when

its motives are legitimate and sufficient, while allowing courts to inhibit the

executive from enacting policy in which the illegitimate motive is necessary

for the executive action.

155

Similar anti-animus frameworks have been pro-

posed by other scholars, including Shawn E. Fields, who has advocated for

an intent inquiry that would allow courts to reject any immigration decision

made with “invidious, unconstitutional norms.”

156

Such a framework, he ar-

gues, would likely strike down immigration policies that violate constitu-

tional norms.

157

Others have argued that the Trump opinion left room to push for

heightened judicial scrutiny where immigration and foreign affairs are not

directly involved and where the government curtails fundamental liberties

due to national security reasons.

158

Perhaps the most compelling example of

such a view emerges from Justice Sonia Sotomayor’s dissent in Trump v.

Hawaii. In her dissent, Justice Sotomayor first provides a historical overview

of President Trump’s anti-Muslim statements to demonstrate how the exec-

utive used national security as a fa¸cade for its anti-Muslim animus, explain-

ing that a “reasonable observer would conclude that the Proclamation was

motivated by anti-Muslim animus.”

159

In the face of such discriminatory mo-

tives, Justice Sotomayor explained that future courts should not be precluded

from examining the motivation behind executive actions when plaintiffs af-

153

Karla McKanders, Deconstructing Invisible Walls: Sotomayor’s Dissents in an Era of Im-

migration Exceptionalism, 27 W

. & M

ARY

J. W

OMEN

& L. 95, 97 (2020).

154

Sahlini Bhargava Ray, Plenary Power and Animus in Immigration Law, 80 O

HIO

L.J. 13, 61 (2019) (arguing that judges should be able to consider statements the President

utters in public discourse, addressing the oft cited concern posed in Mandel that the Execu-

tive’s stated reasons should be taken at face value, and that courts should consider whether a

more deferential motive standard should apply to religious discrimination challenges to immi-

gration law by applying a “but-for” motive standard).

155

Id. at 67.

156

Shawn E. Field, The Unreviewable Executive? National Security and the Limits of Ple-

nary Power, 84 T

ENN

. L. R

. 731, 775 (2017).

157

Id.

158

Yamamoto & Oyama, supra note 146, at 718–19 (citing Hiroshi Motomura, Immigra-

tion Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Inter-

pretation, 100 Y

ALE

L.J. (1990)).

159

McKanders, supra note 153, at 101 (citing Trump v. Hawaii, 138 S. Ct. at 2434–36).

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 22 8-FEB-23 10:47

152 Harvard Law & Policy Review [Vol. 17

firmatively make a showing of bad faith, triggering a heightened level of

judicial review.

160

Scholars like Karla McKanders have convincingly argued

that Justice Sotomayor’s dissent is thus a step towards a more stringent stan-

dard of review for executive actions when freedom of religion and the Estab-

lishment Clause are implicated, requiring courts to examine whether an

executive policy is pursuing legitimate state interests.

161

A more stringent

standard of judicial review may allow for a more thorough examination of

the executive branch’s actions and may thus better balance the constitutional

rights of nonwhite immigrants.

With the mounting criticism against the plenary power doctrine, it is

possible that an era of blind deference and immigration exceptionalism may

soon come to an end. In the absence of such change, blind deference to

previous executive actions provide a forewarning of the harmful conse-

quences exclusionary executive actions can have on individuals around the

world, as seen with the devastating human impact from the Chinese Exclu-

sion Act to the Muslim Ban. Advocates should thus continue to push for

heightened scrutiny that balances individual interests with legitimate govern-

ment concerns in a framework that acknowledges the need to honor the

rights of noncitizens and citizens alike. Moreover, such legal solutions

should be driven by a heightened sense of urgency. For as long as policies

driven by animus are subject to incredibly deferential review, people will

continue to suffer at the hands of the U.S. government.

V. T

UMAN

MPACT OF THE

USLIM

The outcome of Trump v. Hawaii and the Muslim Ban disrupted the

lives of individuals worldwide. Even after the initial chaos subsided, immi-

grants continued to be confronted with the fallout of the Ban. In some cases,

the Ban indefinitely separated family members like the Ghazouls. The

Ghazouls arrived in the United States one day before the enactment of the

Muslim Ban.

162

They initially left their hometown Homs, Syria on foot in

2014 and applied for refugee status upon reaching Jordan.

163

Their daughter,

however, had just married and did not immediately file her application for

refugee status.

164

This decision marked the indefinite separation of the

160

Id. at 105.

161

Id. at 109. Other scholars have also demonstrated how the equal protection doctrine

with regards to immigrants is exceptional because of the plenary power doctrine. The level of

scrutiny for equal protection depends on whether an immigrant is present in the United States

lawfully and whether a state or federal classification is at play, undermining the doctrine of

equal protection for immigrants. For more information see Jenny-Brooke Condon, Equal Pro-

tection Exceptionalism, 69 R

UTGERS

U. L. R

. 563 (2017).

162

Sabrina Siddiqui, ‘A Hellish Nightmare’: How Trump’s Travel Ban Hit a Syrian Refugee

Family, T

UARDIAN

(Jan. 30, 2017), https://www.theguardian.com/world/2018/feb/04/

syrian-refugee-family-trump-travel-ban-virginia [https://perma.cc/7S3B-ZUU6].

163

Id.

164

Id.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 23 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 153

Ghazouls from their daughter, who remains in Jordan.

165

The Ghazouls re-

present but one family among hundreds. Research carried out by the Bridge

Initiative analyzed 549 cases and found that the Ban resulted in the separa-

tion of one in four children from their parents, one in ten from their siblings,

and one in three individuals from their partners.

166

In other cases, the Muslim Ban kept individuals from accessing life-

saving medical treatment, and only those with the most severe medical cases

were granted waivers for themselves or family members.

167

Shaima Swileh, a

Yemeni national, was in Egypt when she applied for an I-130 visa to come

the United States with her husband and son Abdullah Hassan, a two-year-

old who was suffering from a genetic brain condition and was on a ventilator

in San Francisco.

168

While Shaima’s husband and son were U.S. citizens, she

was not.

169

Although her visa application was going well, Shaima was in-

formed in January 2018 that her application would not proceed unless she

qualified for a waiver because of the Muslim Ban.

170

As Abdullah’s condition

worsened, Shaima’s husband made the difficult decision to bring Abdullah

to the United States for care without his wife. Eventually, Shaima’s story was

covered by mainstream media, and three members of Congress wrote a letter

requesting an expedited decision on the visa waiver.

171

Abdullah died one

week after Shaima was reunited with her only child.

172

Had there not been

media intervention, it is likely that Shaima would not have been able to

reunite with her son and husband.

Moreover, students, and particularly Iranians, were unable to pursue

their higher education in the United States, despite having valid visas. While

students with F-1 visas were technically exempt from the Muslim Ban, they

faced heightened scrutiny when interacting with CBP.

173

In most of the de-

ported students’ cases, CBP questioned whether or not the students’ work

165

Id.

166

The Muslim and African Bans, B

RIDGE

(July 2, 2019), https://bridge.georgetown.edu/

research-publications/reports/the-muslim-and-african-bans/ [https://perma.cc/FQ4D-

X5VD].

167

The Muslim Ban, supra note 10.

168

Keith Allen & Chris Boyette, The Family of a Boy on Life Support Is Trying to Get an

Expedited Visa for His Mother to See Him, Group Says, CNN (Dec. 18, 2018), https://

www.cnn.com/2018/12/17/us/oakland-child-life-support-yemeni-mother-travel-ban/index.

html [https://perma.cc/WHQ3-K97Z].

169

Id.

170

Sandra E. Garcia, Yemeni Mother Gets Travel Ban Waiver to Visit Dying Son in Califor-

nia, N.Y. T

IMES

(Dec. 18, 2018), https://www.nytimes.com/2018/12/18/us/yemen-mom-

travel-ban-dying-son.html?action=Click&module=RelatedCoverage&pgtype=Article&region=

footer [https://perma.cc/5MJ2-Y3BT].

171

Christina Caron, Son of Yemeni Mother Dies Soon After She Won Visa Battle with U.S. to

See Him, N.Y. T

IMES

(Dec. 29, 2018), https://www.nytimes.com/2018/12/29/world/abdullah-

hassan-yemeni-toddler-dies.html [https://perma.cc/6U4R-QNLN].

172

Id.

173

Caleb Hampton, ‘Treated like a Terrorist’: US Deports Growing Number of Iranian Stu-

dents Valid Visas from US Airports, T

UARDIAN

(Jan. 14, 2020), https://www.theguard-

ian.com/us-news/2020/jan/14/they-treated-me-like-a-terrorist-the-vetted-iranians-blocked-

from-the-us [https://perma.cc/3JM9-MG25].

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 24 8-FEB-23 10:47

154 Harvard Law & Policy Review [Vol. 17

violated U.S. sanctions on Iran’s government, while others said CBP accused

them of hiding connections with the Iranian government.

174

To obtain a visa,

the students had already gone through an extensive vetting process and in

some cases were willing to accept single-entry visas that would prohibit them

from seeing family members for years. Despite this, many were sent home

and had their student visas cancelled,

175

and some students were even banned

for five years from returning to the United States, a trend that immigration

lawyers say began in 2019 and intensified amid political tensions between

the United States and Iran in early 2020.

176

For example, Mohammed Elmi

was 31 years old when he was on his way to join his wife in California and

start his PhD.

177

In preparing for the move, he had left his job and depleted

most of his savings.

178

Yet upon arrival to the United States, Elmi was held

for over twenty-four hours, searched, and repeatably questioned, with many

of the questions having surfaced during the visa application process months

earlier.

179

Even so, Elmi was told that he could go back to Iran voluntarily or

be deported and subsequently banned for five years. Left with no option,

Elmi flew back to Iran without a job, money, or his wife.

180

The Muslim Ban also detrimentally impacted immigration trends

worldwide. By fiscal year 2018, Muslim arrivals experienced the sharpest de-

cline in resettlement, even though many refugees originate from Muslim-

majority countries.

181

Just in fiscal year 2017 to 2018, admissions of Chris-

tian refugees were down 36% while admissions of Muslim refugees declined

by 85%.

182

The two non-Muslim countries included in the third iteration of

the ban, Venezuela and North Korea, were not impacted to a similar extent

as the restrictions against Venezuela were limited to certain governmental

officials while immigration from North Korea to the U.S. was already in-

174

Id. Other Iranian students were chained and detained in U.S. Immigration and Cus-

toms Enforcement facilities where they were forced to strip naked, questioned about their

opinions on political events in the Middle East, denied the opportunity to speak with family

members, asked to sign documents saying they planned to overstay their visas, and had their

electronics confiscated. Caleb Hampton & Caitlin Dickerson, ‘Demeaned and Humiliated’:

What Happened to These Iranians at U.S. Airports, N.Y. T

IMES

(Jan. 25, 2020), https://

www.nytimes.com/2020/01/25/us/iran-students-deported-border.html [https://perma.cc/

DN2X-4HZ9].

175

Karen Zraick, Iranian Students Set to Start at U.S. Universities Are Barred From Coun-

try, N.Y. T

IMES

(Sept. 20, 2019), https://www.nytimes.com/2019/09/20/us/iranian-students-

visas.html [https://perma.cc/AS6H-RVEH].

176

Jihan Abdalla, Iranian Students with Valid Visas Turned Back at US Borders, A

AZEERA

(Feb. 4, 2020), https://www.aljazeera.com/news/2020/02/iranian-students-valid-

visas-turned-borders-200202163132629.html [https://perma.cc/7BBX-XNXC].

177

Hampton, supra note 173.

178

Id.

179

Id.

180

Id.

181

Int’l Rescue Comm., New IRC Analysis of US Refugee Resettlement Shows Vastly

Reduced Arrivals at a Time of Record Global Need and Consistent Popular Support (June. 18,

2019) (on file with the author).

182

Id.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 25 8-FEB-23 10:47

2022] From the Chinese Exclusion Act to the Muslim Ban 155

credibly limited.

183

The Muslim Ban’s negative impact also extended beyond

the refugee community. By December 2018, approvals for immigrant visas

from the 48 majority Muslim countries had fallen by 30% while nonimmi-

grant visa approvals were down 18%.

184

In addition, short-term visas granted

to Iranians fell from 1,650 per month in fiscal year 2017 to 501 the following

year.

185

As demonstrated, the Muslim Ban has had a detrimental impact on

Muslim communities worldwide, and it will continue to be felt by these

communities long after it is reversed

—

families may very well remain sepa-

rated, students may not be able to continue their studies, and individuals will

not be able to gain back the time that they lost

—

largely due to their classifi-

cation as nonwhite. To fundamentally alter the future of the U.S. immigra-

tion system and halt the exclusion of individuals labeled as nonwhite, the

legal field must be willing to not only acknowledge the system’s racist his-

tory, but must also commit to working towards solutions that dismantle the

racist system in place to make way for a more inclusive one.

ONCLUSION

As evidenced, anti-immigrant sentiment directed towards nonwhite in-

dividuals has existed in the United States since the first non-Protestant im-

migrants began arriving on the shores of the country. These nativist

sentiments were transformed into exclusionary immigration policies directed

at individuals categorized as nonwhite, demonstrated by the difference in

treatment of Chinese immigrants compared to Irish immigrants. For the

next century, immigration policy continued to exclude nonwhite individuals

through qualitative and quantitative restrictions. In order to justify these re-

strictions, nonwhite immigrants were portrayed as economic and national

security threats to the United States.

Among the subsequent immigrant groups deemed to be non-white

were Muslims. Judges relied on “tests” related to common knowledge and

science to create legal boundaries of whiteness that Muslims did not belong

to, demonstrating that Muslims were excluded from entry into the United

States long before the Muslim Ban. The Ban, therefore, is simply an exten-

sion of racist U.S. immigration policy that excludes individuals deemed non-

white. Despite the overt racist nature of the Ban, legal challenges to the Ban

and other immigration policies rooted in white supremacy have largely not

succeeded due to immigration exceptionalism that arises from the plenary

power doctrine, a doctrine that the Supreme Court has relied on for centu-

ries to exclude nonwhite immigrants.

183

The Muslim Ban, supra note 10.

184

David J. Bier, Trump Cuts Muslim Refugees 91%, Immigrants 30%, Visitors by 18%,

ATO

NST

. (Dec. 7, 2018), https://www.cato.org/blog/trump-has-cut-christian-refugees-64-

muslim-refugees-93 [https://perma.cc/9RFY-C9XJ].

185

Chishti et al., supra note 67.

\\jciprod01\productn\H\HLP\17-1\HLP103.txt unknown Seq: 26 8-FEB-23 10:47

156 Harvard Law & Policy Review [Vol. 17

Although Donald Trump lost the 2020 election, racist immigration

policy in the U.S. exists beyond one presidential administration

—

it has deep

roots in the U.S. immigration system that continue to shape immigration

policies implemented today. To change the course of immigration policy,

there must be an honest reckoning with this country’s dark immigration his-

tory, one that not only acknowledges its racist nature but also posits legal

arguments that challenge the application of the plenary power doctrine, es-

pecially in the presence of evident animus. Until this is accomplished, the

United States will continue to uphold white supremacist policies that ex-

clude individuals deemed nonwhite, harming countless people in the process.