February 09, 2005

In the Last Hour of Chinese New Year

by PG

I thought I'd post on a couple of cases I saw today that had to do with non-Chinese Asian people.

The first was one that I'd thought settled, that of Tuan Anh Nguyen's petition not to be deported from the U.S. "as an alien convicted of two crimes involving moral turpitude and an aggravated felony." Nguyen, the son of American citizen Joseph Alfred Boulais and a Vietnamese woman, came to the U.S. with his father when he was six, but because his parents were unmarried and the citizenship was his father's instead of his mother's, the Supreme Court held that he was not a citizen.

But nope, Nyuyen's back, this time at the Fifth Circuit (as he committed the crimes in Texas). This case is much more civil procedure than constitutional law, so I'm going to cheat and just copy what the court said:

We review de novo a dismissal of a 28 U.S.C. 2241 petition for writ of habeas corpus. The question we are called to answer is whether an alien, subject to a removal order, holds a due process interest in discretionary relief under 212(c) when his pre-AEDPA five-year eligibility bar was activated during the pendency of the removal proceeding before the BIA. We determine that he does not.

The second case is an old one, but one of more peculiar interest to me. In it, the Supreme Court conceded that Indians -- Gandhi, not Sitting Bull -- are Caucasians genetically, but the Naturalization Act, which applied "to aliens, being free white persons, and to aliens of African nativity and to persons of African descent," did not apply to Indians, even high caste Punjabis like Bhagat Singh Thind.

What we now hold is that the words "free white persons" are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word "Caucasian" only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.
I'm also doubtful as to whether the aspiring citizen was really a Hindu; his middle name and Punjab origin make it more likely that he was Sikh (and thus technically not a "high" caste person, as Sikhs claim not to believe in such hierarchies), and other sites identify him as such. But I wouldn't expect a 1923 American judge to be able to tell a Sikh from a Jain from a hole in the ground.

February 9, 2005 11:55 PM | TrackBack
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