Migrants have been crossing into U.S. borders for years in search of safety and employment. Since last year, the governors of Texas and Florida have offered “free rides” and “free flights” to send them to other cities, claiming that those who support welcoming immigrant policies should share the responsibility of caring for them. As Gaza faces a humanitarian catastrophe, former President Trump, whose Muslim ban was upheld by the Supreme Court in 20181 and overturned by President Biden in 2021, has recently vowed to expand the Muslim ban and bar Gaza refugees if he wins the presidency in 2024. The fate of the Deferred Action for Childhood Arrivals program will likely be decided for a third time by the Supreme Court, this time by a Court with a conservative super majority. As the U.S. moves into a post-pandemic phase, anti-Asian racism and violence continue to persist and spread.
Against this backdrop, many commentators blame white nationalism for xenophobia against Asians, Latinx, and Muslims, and see the granting of legal status to undocumented migrants and turning noncitizens into citizens as the key to their equality. Ming Hsu Chen, who recognized the paramount importance of access to formal citizenship for equality in her 2020 book Pursuing Citizenship in the Enforcement Era, finds this an insufficient explanation and solution to inequality. In Colorblind Nationalism and the Limits of Citizenship, she goes on to argue for the decentering of formal citizenship in the pursuit of equality, advocating for a new imagination of the relationship between race, citizenship, and membership that recognizes multi-layered membership. Bridging critical race theorists’ critique of colorblindness and critical immigration scholars’ critique of nationalism, she identifies the pivotal role of colorblind nationalism in producing inequality and shows how it “limits formal citizenship as an antidote for inequality.” (P. 950.)
Echoing the critiques of the Black/White paradigm in critical race theory, Chen centers her discussion on the inequality facing “racialized foreigners” (immigrants and citizens perceived as foreigners because of their race),2 particularly Asians, Latinx, and Muslims. The article is a timely intervention into racial and citizenship inequality in today’s America, where the talk of colorblindness prevails, especially after the Court overturned race-based affirmative action in admissions,3 dividing Asian Americans and pitting them against racial minorities. Speaking in the distinct voice of people of color, Chen – herself an American citizen born to parents of Chinese heritage who immigrated to Taiwan and then the United States – shows us what can be seen through “looking to the bottom,” a method proposed by Mari J. Matsuda.4
Three Walls, Three Pretenses, and Colorblind Nationalism
Immigrant exceptionalism is often invoked to deny equality to noncitizens, but equality is not a privilege common to all citizens. Not all citizens enjoy full membership in the United States; some of them are limited to partial citizenship, lacking substantive citizenship, that is, “the social, cultural, economic and political belonging thought to accompany the rights and benefits of formal citizenship.” (P. 947-48.) On the spectrum of noncitizens at the one end and substantive citizenship at the other, Chen identifies three walls that stand in the way of racial equality. The first wall is located at the borders, while the second and the third walls are situated beyond the borders.5
Policies and practices of immigration restrictions constitute the first wall, guarding against the entry of foreigners. The racism of the first wall is manifested in the Trump administration’s Muslim travel ban, which explicitly banned travel and refugee resettlement from seven majority-Muslim countries, and the Covid-19 pandemic measures, which barred Chinese (the Chinese ban)6 and South American asylum seekers from entering the U.S., but opened a door for Ukrainian migrants fleeing the war zone. Beyond the first wall is the second wall of racialized barriers to citizenship. Historically, racial exclusion has been enforced through a series of racial prerequisite cases that “naturalized Whiteness as the normative American identity and a requirement for citizenship.” (P. 970.) Its legacy can be found in modern naturalization practices that disproportionately delay and deny the applications of racial minorities.
A third wall awaits naturalized immigrants and their children and U.S.-born children of immigrants, denying them substantive citizenship. Examples of their unequal status compared with other U.S. citizens are many, of which the Japanese internment during World War II is a well-known example. The revitalization of denaturalization is another example that has not yet received much scholarly attention. Chen notes that, while denaturalization had functioned to exclude political dissidents in the early twentieth century and Mexican Americans during the Great Depression, the denaturalization provisions stayed on the books but remained relatively dormant until the Trump administration invoked them to denaturalize Muslim Americans and deport them on flimsy grounds (such as misspelled surnames). Claiming that the denaturalization cases let “nationalism prevail within the nation,” Chen concludes that “citizenship is conditioned on beliefs, race, religion, and prior legal status.” (P. 976.)
While the manifestations of inequality are sometimes purposefully and overtly racist and xenophobic, Chen draws our attention to the ways in which racist tropes are covertly invoked in the language of nationalism. White supremacy is not a necessary component of nationalism, but “the articulations of liberal national interest can downgrade the interests of other nations as nationalism seeks to guard against foreign threats to national security, public health, and national identity.” (P. 948.) She identifies three pretenses that provide facially race-neutral justifications for de facto racial exclusion: national security, public health, and economic protectionism.
The pretense of national security is evident in the cases of Muslims (racialized as “Arab terrorists”) and Asians (racialized as the Japanese “enemy race” during World War II and as “Chinese spies” in recent years). Public health concerns have served to legitimize the exclusion of Chinese (blamed for the “China virus”) and Latinx (racialized as “illegal aliens”) during the pandemic, despite the availability of Covid tests and vaccines. Asians and Latinx have also been excluded under the guise of prioritizing American economic interests and protecting the jobs of American citizens. The Trump administration’s Chinese ban during the pandemic, based on the mixed grounds of guarding public health, preserving the economy, and protecting against espionage, illustrates how the three pretenses can function together to justify racialized exclusion. Hence, “[n]ationalism becomes the ultimate pretext for racism.” (P. 1001.) Colorblind nationalism “rationalizes exclusion as an exercise of the nation’s right to sovereignty.” (P. 984.)
The Perpetual Foreigners
Asian Critical Race Theory has shed light on the “perpetual foreigner syndrome” suffered by Asian Americans when it emerged to challenge the dominant Black/White paradigm of Critical Race Theory.7 Arguing that “liberal interpretations of colorblind equality can merge foreignness with the biases of sovereignty, democratic self-governance, and social closure to reinforce inequality” (P. 961-62), Chen extends the wisdom of Asian critical race theory on foreignness to include Muslim and Latinx Americans. White immigrants follow the idealized path to first-class citizenship, enjoying “the white premium,” as exemplified by the acceptance of East European refugees after World War II and Ukrainian migrants after the outbreak of the Russian-Ukraine War. Denied the “citizenship premium” (P. 991), Asian, Latinx, and Muslim immigrants remain socially excluded as second-class citizens after naturalization. For them, “once an immigrant, always an immigrant.” (P. 990.) Perpetual foreigners they are.
Chen’s discussion of birtherism brilliantly demonstrates how foreignness is, in my words, selectively stored in the blood, blending jus sanguinis with jus soli citizenship. She offers three manifestations of birtherism, all of which are facially race neutral: (1) the attempts to abolish birthright citizenship; (2) the restrictions on birthright citizenship for the children of legal nonimmigrants, including travel restrictions for pregnant women visiting the U.S.; (3) the inconsistent exclusion of U.S.-born children of noncitizens from running for elected office. Chen’s vivid comparison of white men born outside the U.S. and non-white people born on U.S. soil in the legal test of loyalty for the presidential office is illuminating.
As the child of white parents, John McCain (born on a U.S. military base in the Panama Canal Zone) overcame the presumption of doubt. Yet, Barack Obama (born to a White American citizen mother and an international student father from Africa) and Kamala Harris (born to parents who were both non-white international students) suffer from Americans’ mistrust of foreigners, despite the fact that they were born on U.S. soil. She further points out the gender dimension of the birthers’ challenge of Obama’s eligibility for the presidency: the erasure of the citizenship of Obama’s White U.S.-born mother by her husband’s foreign nationality, which demonstrates the legacy of the marital expatriation of U.S. female citizens. (P. 986-88.) The foreign stains in Obama’s and Harris’s bloodlines are sticky with the stench of political disloyalty.
Of particular note is Chen’s watchful eye on precedents for the Court’s treatment of racialized foreigners. She sees white supremacy in United States v. Wong Kim Ark,8 a case brought by a U.S.-born Chinese that established birthright citizenship, and points to the Court’s concerns that a contrary holding would deny citizenship to people of European parentage. (P. 981 n.145.) She also sees the disparagement of Chinese Americans as “a race so different from our own that we do not permit those belonging to it to become citizens of the United States” in Plessy v. Ferguson.9 (P. 970 n.88.) Although she presents her observations in the footnotes, I find them to be excellent examples of how White supremacy was affirmed when birthright citizenship was granted to U.S.-born Chinese, and how racial discrimination against Blacks as inferior citizens and Chinese as unqualified outsiders finds manifestation in the same decision.
The Cure That Equality Laws Do Not Offer: Multi-layered Membership
Drawing from cell biology, Robert Chang and Keith Aoki have claimed that “In the same way that the cell wall or membrane serves a screening function, the border operates to exclude that which is dangerous, unwanted, undesirable.”10 Chen’s article is a valuable addition to Chang & Aoki’s thesis. It shows not only how the cell wall screens and excludes racialized foreigners, but also how foreignness and inequality penetrate through the cell wall. Yet, constitutional and statutory equality laws against discrimination based on race and national origin have failed to protect racialized foreigners from discrimination justified in the name of colorblind nationalism. Chen proposes two steps toward remedying this inequality. The first step is to recognize the harm. The second step is to move away from binary categories and toward multi-layered conceptions of membership by creating spaces for alternative sources of belonging.
Acknowledging that “[c]itizenship is necessarily a boundary drawing exercise” (P.1011), Chen advocates for migration along the citizenship spectrum to facilitate racialized foreigners’ democratic and social engagement, which in turn will boost their political, social, and economic inclusion. Her proposal calls for opportunities such as political participation and civilian services provided at the federal and state levels. Specifically, she identifies the practical role that state and local governments can play in broadening the conception of community and enabling the inclusion of marginalized groups.
On her list is noncitizen voting in local elections, which existed in fifteen cities across four states as of the time of her writing. (P.1010.) Recent legal developments on noncitizen voting present a mixed picture. New York city passed a noncitizen voting law in 2022, but it was subsequently struck down by a state supreme court. D.C.’s noncitizen voting law, also passed in 2022, is similarly facing legal challenge in court. A look at noncitizen suffrage outside the U.S. offers some hope. Noncitizens can vote in local elections in South Korea (the only Asian country that grants noncitizens the right to vote at the subnational level), Spain, Sweden, and other countries. Some of these countries have residency requirements or European Union residency requirements.
On a personal note, I was an international student at the University of Michigan Law School, Ann Arbor when 911 happened. Dearborn, one of the largest Arab American communities, was nearby. At that time, Asians were not the primary targets of hate crimes, surveillance, and deportation. Still, we knew that Yellow was closer to Brown than Black when it came to “foreign threats.” We smelled racism when being singled out for additional security checks at the airport. Some of us fulfilled the “affirmative racial duty”11 to display “patriotism” by hanging U.S. national flags on apartment windows. The feelings of mistrust, unwelcome, exclusion, and insecurity linger today. The anti-Asian hate in the midst of, and in the aftermath of, the Covid-19 pandemic revitalizes these feelings and fears.
For racialized actual foreigners like me who have no intention of seeking U.S. citizenship, “the perpetual foreigners” syndrome remains harmful because it constitutes and reflects our status as secondary foreigners. For Taiwanese like me who wish to claim our national identity when crossing national borders and when on temporary visas in the U.S., the denial of my country’s statehood has resulted in numerous troubling instances where I have been unable to find an appropriate nationality or country box to check. This denial of statehood produces distinct harms outside the experience of many noncitizen Asians, proving Chen’s point that the Asian race is as diverse as it can be. (P. 994.)
The Taiwanese category has never been included in the U.S. census form. Whereas liberals fought against the inclusion of the citizenship question in the 2020 Census and succeeded in the court challenge to have it removed,12 Taiwanese Americans strived to make Taiwanese count and matter in and through the 2020 Census. The Census 2020 “Write in Taiwanese” Campaign seeks the acceptance of Taiwanese as members of the political community whose racial identity does not suffer misrecognition or nonrecognition. I wrote in “Taiwanese” on the 2000 census form more than two decades ago as an international student. I dream of a space for the racial belonging of Taiwanese in Chen’s aspirational future for the U.S.: “a more equal nation for those who reside in the United States, regardless of prior citizenship status or race.” (P. 1010-11.)
- Trump v. Hawaii, 585 U.S. ___ (2018).
- Chen defines the term “racialized foreigners” in the article as “immigrants and naturalized citizens who are perceived as foreign, by virtue of racial formation, despite having formal U.S. citizenship via naturalization or birthright.” (P. 947 n.5.)
- Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).
- Matsuda claims that those with experiences of discrimination speak with a distinct voice and possess a perspective that critical scholars should adopt to understand injustice and pursue justice. I see Chen’s work as an exercise of looking to the bottom, although she does not claim to apply this method in this work. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987).
- To be precise, Chen does not specifically use the term “the first wall.” She does explicitly identify the second and the third walls. (P. 969.) Her idea of the second wall is elaborated in detail in Ming H. Chen & Zachary New, Silence and the Second Wall, 28 S. Cal. Interdisc. L.J. 549 (2019).
- Connecting the present to the history of Chinese exclusion, Chen wondered if the China ban should be considered Muslim ban 4.0 or Chinese exclusion 2.0. (P. 965 n.70.)
- In his pioneering work that laid the ground for what is now known as Asian Critical Race Theory (AsianCrit) (a strand of Critical Race Theory that emphasizes the unique racial experience of Asians in America), Robert Chang identifies the sense of “’foreignness’ that distinguishes the particular type of racism aimed at Asian American.” Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-structuralism, and Narrative Space, 81 Calif. L. Rev. 1241, 1258 (1993). Frank Wu casts the stereotyping of Asian Americans as foreigners as the “perpetual foreigner syndrome,” which can be expressed in everyday social interactions, addressed in public policy, or occur in the brutal form of hate crimes. Frank H. Wu, Where Are You Really From? Asian Americans and the Perpetual Foreigner Syndrome, 6 C.R.J. 14 (2002).
- United States v. Wong Kim Ark, 169 U.S. 649 (1898).
- Plessy v. Ferguson, 163 U.S. 537 (1896).
- Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National Imagination, 85 Calif. L. Rev. 1395, 1411 (1997).
- Devon W. Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev. 1259, 1287 (2000).
- Department of Commerce v. New York, 588 U.S. ___ (2019).
