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Excerpted From: Shoba Sivaprasad Wadhia and Margaret Hu, Decitizenizing Asian Pacific American Women, 93 University of Colorado Law Review 325 (Winter, 2022) (215 Footnotes) (Full Document)


WadhiaAndHuThis Article contends that a careful examination of immigration exclusion laws in the United States, especially the Page Act of 1875, is critical to contextualize the concept of decitizenizing Asian Pacific American (APA) women in the United States. “Decitizenship” can be understood as the limitation or removal of either full citizenship rights or access to communities of citizens and social realms. Decitizenizing is distinct from denaturalization. While decitizenizing processes strip an individual of full and substantive citizenship rights, denaturalization strips an individual of formal citizenship rights. For example, decitizenship includes the use of surveillance, where “acts of citizenship can be constrained, regulated, and observed.” Decitizenship processes can stem from a variety of sources, including limiting access to full citizenship from legal barriers and cultural and political restrictions to power and belonging.

The mass murder of six women of Asian descent on March 16, 2021, in Atlanta sheds light on how the decitizenizing of APA women can operate. From a historical standpoint, more than a century earlier, the Page Act of 1875 barred entry of Asian women immigrants on the premise that they were lewd, immoral, and undesirable. Conversations about these stereotypes and the Page Act resurfaced in the wake of the Atlanta shootings. How the Page Act excluded Asian women from immigration and citizenship based on presumed immorality has both legal and extralegal significance. The historic stain left by the Page Act has continued stigmatizing APA women through a hybrid form of exclusion that incorporates elements of legal, cultural, socioeconomic, and political marginalization.

Part I presents the background for the Atlanta Massacre. It summarizes how the wave of recent attacks against the APA community results from a confluence of circumstances, including an extreme immigration enforcement climate, rising xenophobia exacerbated by the global pandemic, and disinformation campaigns that underscored racial and economic tensions. The pandemic and these other factors, however, do not fully explain the disproportionate brunt of the attacks borne by APA women.

Part II argues that APA women are disproportionately represented in the recent spike of hate crimes because of the entrenchment of highly gendered prejudices--prejudices embedded within the earliest origins of U.S. immigration enforcement policy and immigration exclusion laws. By failing to connect the history of immigration law to modern-day violence against APA communities, we risk forfeiting an understanding of this relationship and, consequently, incorrectly dismissing the violence as only random, isolated incidents. Historical and legal contextualization establishes the recent surge of APA hate crimes as part of a greater pattern of interwoven legal and racially motivated injustices.

Part III contends that the processes of decitizenizing APAs generally, and APA women in particular, are largely invisible and deprives APA women of full and substantive citizenship rights, even for those who are technically U.S. citizens. Civil rights laws and other antidiscrimination remedies prohibit certain categories of discrimination that do not adequately capture discrimination based on foreignness--a type of discrimination that widely affects APA women. Moreover, these laws are particularly impotent when the APA community is not viewed as one that faces social injustice and when APA women are not considered a subset that is particularly vulnerable to discrimination.

This Article concludes that the marginalization of APA women is the result of past and present immigration laws and enforcement policies, and the degrading stereotypes integrated within such policies that are designed to decitizenize women of Asian descent. The massacre of Asian and APA women in Atlanta on March 16, 2021, illuminates that the combination of legal marginalization and cultural stigmatization can be fatal. It critiques how decitizenizing processes lead to the justification and excusal of forms of legal and social discrimination that are uniquely aimed at Asian and APA women. Reversing the decitizenizing process can start with analyzing the historical genesis of the discrimination, as well as acknowledging how an extreme immigration enforcement climate exacerbates exclusion from full citizenship.

[. . .]

According to the 2019 U.S. Census statistics, AAPI women were comprised of 11.9 million Asian women and 803,000 Native Hawaiian or other Pacific Islander women. Together, AAPI women represent almost 3.9 percent of the U.S. population and approximately 7.62 percent of the total population of women in the United States. Black women form 12.9 percent of the total population of women in the United States, while Hispanic or Latina women form 18 percent of the total population of women in the United States. Government data from 2020 also show significant growth in Asian populations. Given that Asian Americans are easy to physically identify and are now among the highest-growth population for recent immigrants, the dynamics of exclusion remain acute for this group. The legal structure of exclusion means that Asians became the group least likely to be able to form a critical mass within the U.S. population. Had there not been an artificial depression in immigration from Asian exclusion laws, the number of Asians in the United States would be far higher.

In other words, for almost a century, Asians faced an artificially constructed barrier to immigration to the United States. Chinese exclusion laws, national origin quotas, and other laws blocked Asian access to durable status, including U.S. citizenship, until 1965. It was not until the amendments to the Immigration and Nationality Act of 1965, a part of the historic legislation passed in the wake of the civil rights movement of the 1960s, that the overtly racialized immigration laws were repealed.

Anti-Chinese sentiment is often conflated with, or used as a proxy for, broader anti-Asian sentiment. That is, historically and today, anti-Chinese stereotypes and policies have the effect of creating more expansive anti-Asian attitudes and prejudices. The hypersexualization of Chinese women embedded within the Page Act of 1875, for instance, is then projected onto and synonymized with APA women generally.

Civil rights laws in the United States do not account for many of the types of discrimination harms that the women victims in Atlanta seemed to suffer. For these victims, those harms were rooted in the fact that the murderer associated sexual immorality with the population of innocent Asian and APA women. The women, targeted by their murderer by their race and gender, were involuntarily defined by the stigma of hypersexualization, which can be traced not only to cultural stereotypes but also the historical stigma embedded within U.S. immigration law.

Antidiscrimination law currently includes only one statute that specifically defines immigration-related foreignness discrimination as a legally cognizable harm. The antidiscrimination provision of the Immigration and Nationality Act, section 1324b, recognizes that a perception of foreignness can lead to employment-based discrimination. However, this statute is limited in scope, as it only applies to immigration-related employment discrimination. Further, other antidiscrimination laws, such as the Civil Rights Act of 1964, do not extend to intersectionality theories.

Overall, there is limited legal recourse to protect against many types of discrimination and decitizenizing harms suffered by Asian and APA women in the United States. To address this, at the very least, antidiscrimination law should be expanded to encompass the concept of foreignness discrimination. Additionally, decitizenizing processes should be contextualized within broader lines of inquiry: pretextual national security justifications for targeting Asian and APA communities historically; relationships between race and citizenship, and immigration exclusion; and intersectionality theories of discrimination. By starting with the Page Act of 1875 as a frame for analyzing the Atlanta Massacre, one can better understand why Asian and APA women in the United States may fall outside the social, cultural, and political bounds of those who may secure the privileges of full citizenship.

Associate Dean for Diversity, Equity, and Inclusion; Samuel Weiss Faculty Scholar, Clinical Professor of Law, Director/Founder, Center for Immigrants' Rights Clinic, Penn State Law,

Associate Dean for Non-JD Programs; Professor of Law and International Affairs, Penn State Law and School of International Affairs, Institute for Computational and Data Sciences, Institute for Network and Security Research, The Pennsylvania State University - University Park.

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