Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.
Supreme Court briefFeb 25, 2026
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No. 25-365
IN THE
Supreme Court of the United States
_____________
DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES, ET AL.,
Petitioners,
v.
BARBARA, ET AL.,
_____________
Respondents.
On Writ of Certiorari to the United States Court of
Appeals for the First Circuit
_____________
BRIEF OF AMICI CURIAE NATIONAL ASIAN
PACIFIC AMERICAN BAR ASSOCIATION, ET
AL. IN SUPPORT OF RESPONDENTS
_____________
WENDY M. FENG
Counsel of Record
SEYFARTH SHAW LLP
999 Third Avenue, Suite 4700
Seattle, Washington 98104
Telephone: (206) 946-4910
wfeng@seyfarth.com
Attorneys for Amici Curiae
LORI CHEN
OWEN R. WOLFE
ANDREW R. ESCOBAR
SEYFARTH SHAW LLP
RAHAT N. BABAR
EDGAR CHEN*
CHRIS M. KWOK*
NATIONAL ASIAN PACIFIC
AMERICAN BAR ASSOCIATION
*Not admitted before this Court
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................... iii
IDENTITY AND INTERESTS
OF AMICI CURIAE .................................................. 1
LIST OF AMICI CURIAE ........................................ 3
SUMMARY OF ARGUMENT .................................. 7
ARGUMENT ............................................................. 9
I.
THE HISTORICAL CONTEXT
UNDERLYING WONG KIM ARK
REFUTES PETITIONERS’ ARGUMENTS ...... 9
A. Chinese Migrants Arrived in the
United States Before the Civil War ............ 9
B. The Fourteenth Amendment Was
Intended to Confer Birthright
Citizenship on All Children Born in
the United States, Including Children
of Chinese Migrants .................................. 11
C. Rising Anti-Chinese Sentiment Led to
Exclusionary Laws .................................... 14
D. Chinese Migrants Faced Widespread
Violence Due to the Anti-Immigrant
Sentiments of the Time ............................. 18
II. AGAINST THE BACKDROP OF
CHINESE EXCLUSION, THIS COURT
NONETHELESS HELD THAT WONG
KIM ARK WAS A U.S. CITIZEN .................... 19
i
III. WONG KIM ARK’S PARENTS ARE NOT
ANALOGOUS TO PRESENT-DAY
IMMIGRANTS ................................................. 24
CONCLUSION ....................................................... 33
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Chae Chan Ping v. U.S.,
130 U.S. 581 (1889) ..................................... 10, 28
Chin Bak Kan v. United States,
186 U.S. 193 (1902) ........................................... 23
Chy Lung v. Freeman,
92 U.S. 275 (1875) ............................................. 15
Dep’t of Homeland Sec. v. Thuraissigiam,
591 U.S. 103 (2020) ........................................... 28
Fong Yue Ting v. United States,
149 U.S. 698 (1893) ............................... 27, 28, 29
Ho Ah Kow v. Nunan,
12 F. Cas. 252 (C.C.D. Cal. 1879) ..................... 15
Kwock Jan Fat v. White,
253 U.S. 454 (1920) ..................................... 29, 30
Lau Ow Bew v. United States,
144 U.S. 47 (1892) ............................................. 29
Lem Moon Sing v. United States,
158 U.S. 538 (1895) ..................................... 28, 29
In re Look Tin Sing,
21 F. 905 (1884) ................................................. 22
Ozawa v. United States,
260 U.S. 178 (1922) ........................................... 26
iii
People v. Hall,
4 Cal. 399 (1854)................................................ 18
Quock Ting v. United States,
140 U. S. 417 (1891) .................................... 21, 22
Tape v. Hurley,
66 Cal. 473, 9 P. 129 (1885) .............................. 14
Thind v. United States,
261 U.S. 204 (1923) ........................................... 26
Tuan Ahn Nguyen v. INS,
533 U.S. 53 (2001) ............................................. 30
United States v. Wong Kim Ark,
169 U.S. 649
(1898) ................. 7, 8, 9, 11, 20, 21, 22, 23, 24, 27
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ........................................... 15
Statutes
8 U.S.C. § 1153........................................................ 31
8 U.S.C. § 1401.................................................. 22, 31
8 U.S.C. § 1427........................................................ 25
Chinese Exclusion Act of 1882, ch. 126, 22 Stat.
58.................................................................. 17, 26
Geary Act, ch. 60, 27 Stat. 25 (1892) ..................... 17
Immigration Act of 1917, ch. 29, 39 Stat. 874 .. 17-18
iv
Naturalization Act of 1790, ch. 3, § 1,
1 Stat. 103 .................................................... 24, 26
Page Act of 1875, ch. 141, 18 Stat. 477 (repealed
1974) ............................................................ 15, 16
Scott Act, ch. 1064, 25 Stat. 504 (1888) ........... 17, 28
Other Authorities
Amanda Frost, “By Accident of Birth”: The
Battle over Birthright Citizenship After
United States v. Wong Kim Ark, 32 YALE
J.L. & HUMAN. 38-76 (2021) .............................. 19
Angell Treaty, China-U.S., Nov. 17, 1880, 22
Stat. 826, available at
https://www.govinfo.gov/content/pkg/STATU
TE-22/pdf/STATUTE-22-Pg826.pdf#page=1 .... 17
Beth Lew-Williams,
The Chinese Must Go (2021) ............................. 19
Burlingame-Seward Treaty, China-U.S., July
28, 1868, 18 Stat. 147 art. VI, available at
https://www.loc.gov/resource/
rbpe.23602400/ ................................ 17, 24, 26, 30
CAL. CONST. of 1879, art. XIX................................. 14
Characteristics of H-1B Specialty Occupation
Workers, Fiscal Year 2023 Annual Report to
Congress October 1, 2022–September 30,
2023, U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, (March 6, 2024),
https://www.uscis.gov/sites/default/files/docu
v
ment/reports/OLA_Signed_H-1B_Characteristics_Congressional_Report_FY20
23.pdf ................................................................... 2
Chinese Labor and the Iron Road,
NATIONAL PARK SERVICE,
https://www.nps.gov/gosp/learn/historycultur
e/chinese-labor-and-the-iron-road.htm (last
updated Apr. 29, 2025) ...................................... 10
CONG. GLOBE,
39th Cong., 1st Sess. (1866) .................. 11, 13, 14
Foreign Affairs Manual, U.S. DEP’T OF STATE, 9
FAM 402.10-10(A)(U) (Sept. 29, 2022) ............. 26
Green Card Processes and Procedures, U.S.
CITIZENSHIP AND IMMIGRATION SERVICES,
https://www.uscis.gov/green-card/green-cardprocesses-and-procedures (last updated Oct.
19, 2022) ............................................................ 32
I am a Lawful Permanent Resident of 5 Years,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
https://www.uscis.gov/citizenship/learnabout-citizenship/citizenship-andnaturalization/i-am-a-lawful-permanentresident-of-5-years (last updated Jan. 24,
2025) .................................................................. 25
ICE Releases 2024 SEVP Annual Report,
IMMIGRATION AND CUSTOMS ENFORCEMENT
(June 5, 2025),
https://www.ice.gov/news/releases/icereleases-2024-sevp-annual-report .................... 26
vi
International Travel as a Permanent Resident,
U.S. Citizenship and Immigration Services,
https://www.uscis.gov/green-card/after-wegrant-your-green-card/international-travelas-a-permanent-resident (last updated Sept.
12, 2025) ............................................................ 27
Janet Lau, Stanley Hom Lau: Paper Son, PRIZED
WRITING,
https://prizedwriting.ucdavis.edu/stanleyhom-lau-paper-son (last visited Jan. 26,
2026) .................................................................. 31
Jill H. Wilson, Optional Practical Training
(OPT) for Foreign Students in the United
States, CONGRESSIONAL RESEARCH SERVICE
(May 30, 2025),
https://www.congress.gov/crsproduct/IF12631 ................................................ 26
Karthick Ramakrishnan et al., By The Numbers:
Immigration, AAPI DATA (Jan. 9, 2025),
https://aapidata.com/featured/by-thenumbers-immigration/ ........................................ 2
Kelly Wallace, Forgotten Los Angeles History:
The Chinese Massacre of 1871, LOS ANGELES
PUBLIC LIBRARY (May 19, 2017),
https://www.lapl.org/collectionsresources/blogs/lapl/chinese-massacre-1871 .... 18
Kevin Waite, The Bloody History of Anti-Asian
Violence in the West, NATIONAL GEOGRAPHIC
(May 10, 2021), available at
https://www.nationalgeographic.com/history/
vii
article/the-bloody-history-of-anti-asianviolence-in-the-west .......................................... 18
Laura A. Lee, History Rewritten: The Story of
Quock Mui Jeung, 11 ASIAN PACIFIC
AMERICAN LAW JOURNAL No. 1, pg. 77
(Spring 2006) ..................................................... 30
Rights and Responsibilities of a Green Card
Holder (Permanent Resident), U.S.
CITIZENSHIP AND IMMIGRATION SERVICES,
https://www.uscis.gov/green-card/after-wegrant-your-green-card/rights-andresponsibilities-of-a-green-card-holderpermanent-resident (last updated Sept. 12,
2025) .................................................................. 32
S. REP. NO. 689 (1877), available at
https://babel.hathitrust.org/cgi/pt?id=coo.319
24073426482 ...................................................... 16
Senate Roll Call Vote on the 14th Amendment,
U.S. SENATE,
https://www.senate.gov/artandhistory/history
/common/image/RollCall_681866_14thAmend
ment.htm (last visited Jan. 26, 2026) ............... 12
Table 14, OFFICE OF HOMELAND SECURITY
STATISTICS (Aug. 20, 2025),
http://ohss.dhs.gov/topics/immigration/yearbo
ok/2024/table14.................................................... 2
Table 17, OFFICE OF HOMELAND SECURITY
STATISTICS (Oct. 2, 2024),
http://ohss.dhs.gov/topics/immigration/yearbo
ok/2023/table17.................................................... 2
viii
Tax information and responsibilities for new
immigrants to the United States, INTERNAL
REVENUE SERVICE,
https://www.irs.gov/individuals/international
-taxpayers/tax-information-andresponsibilities-for-new-immigrants-to-theunited-states (last updated Oct 3, 2024) .......... 32
Tom Rea, The Rock Springs Massacre, WYO
HISTORY (November 8, 2014), available at
https://www.wyohistory.org/encyclopedia/roc
k-springs-massacre............................................ 18
Tracy Lachica Buenavista, Deferred Action for
Childhood Arrivals (DACA) and
Undocumented Asian Americans and Pacific
Islanders, ASIAN AMERICAN AND PACIFIC
ISLANDER RESEARCH COALITION (2014),
https://www.higheredimmigrationportal.org/
wp-content/uploads/formidable/13/Buenavista-ARCAAPI-DACA-Brief-1.pdf ...................................... 2
Who Needs to Register, SELECTIVE SERVICE
SYSTEM, https://www.sss.gov/register/whoneeds-to-register/ (last visited Jan. 26, 2026) .. 32
ix
IDENTITY AND INTERESTS OF AMICI CURIAE1
The National Asian Pacific American Bar
Association (NAPABA) and 48 of its affiliated bar
associations respectfully submit this amicus curiae
brief in support of Plaintiffs-Respondents’ position
and affirmance of the preliminary injunction order
enjoining Executive Order 14160, 90 Fed. Reg. 8449
(January 20, 2025), titled “Protecting the Meaning
and Value of American Citizenship” (“EO 14160”).
The below-listed amici curiae are non-profit
legal professional organizations representing the
interests of over 80,000 Asian American, Native
Hawaiian, and Pacific Islander (AANHPI)
attorneys, judges, law professors, and law students.
NAPABA’s mission is to raise the visibility of, and
advocate for, AANHPI legal professionals and the
communities they represent, including but not
limited to the AANHPI affinity bar organizations
submitting this brief as amici curiae. Since its
inception in 1988, NAPABA has served as the
national voice for AANHPIs in the legal profession,
promoting justice, equity, and opportunity for Asian
Pacific Americans.
If the injunction is vacated, EO 14160 will
disproportionately harm Asian Americans, who
make up a large share of the U.S. immigrant
1 Pursuant to Supreme Court Rule 37.6, amici curiae state that
no counsel for a party authored this brief in whole or in part,
and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief.
No person other than amici curiae, their members, or their
counsel made a monetary contribution to this brief’s
preparation or submission.
1
population. Specifically, 65% of Asian American
adults in the United States are immigrants. 2 Asian
immigrants of all legal statuses account for a
substantial percentage of our overall immigrant
population. They account for more than 88% of
individuals holding H-1B visas; 3 a significant
portion of refugees and asylees who fled persecution
and pledged their allegiance to the United States; 4
and an estimated 15% of undocumented
immigrants. 5 Finally, over 108,000 Asian Americans
were eligible for protections under the Deferred
Action for Childhood Arrivals (DACA) program,
instituted in 2012. 6
Karthick Ramakrishnan et al., By The Numbers:
DATA
(Jan.
9,
2025),
Immigration,
AAPI
https://aapidata.com/featured/by-the-numbers-immigration/.
3 Characteristics of H-1B Specialty Occupation Workers, Fiscal
Year 2023 Annual Report to Congress October 1, 2022–
September 30, 2023, U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
(March
6,
2024),
https://www.uscis.gov/sites/default/files/document/reports/OL
A_Signed_H-1B_Characteristics_Congressional_Report_FY2023.pdf.
4 See Table 14, OFFICE OF HOMELAND SECURITY STATISTICS
(Aug. 20, 2025),
http://ohss.dhs.gov/topics/immigration/yearbook/2024/table14;
Table 17, OFFICE OF HOMELAND SECURITY STATISTICS (Oct. 2,
2024),
http://ohss.dhs.gov/topics/immigration/yearbook/2023/table17.
5 Id.
6 Tracy Lachica Buenavista, Deferred Action for Childhood
Arrivals (DACA) and Undocumented Asian Americans and
Pacific Islanders, ASIAN AMERICAN AND PACIFIC ISLANDER
RESEARCH
COALITION
(2014),
https://www.higheredimmigrationportal.org/wp-content/uploads/formidable/13/Buenavista-ARC-AAPI-DACA-Brief1.pdf.
2
2
Under EO 14160, children of these categories
of immigrants would be excluded from citizenship,
despite being born, raised, and educated in the
United States, with strong familial and cultural ties
to the United States, and despite knowing no other
country of allegiance. Accordingly, amici have a
strong interest in the outcome of this case. They also
have an interest in educating the profession and the
broader public about the legal history relating to
Asian migration to the United States and how those
experiences and the resulting caselaw have uniquely
shaped modern-day immigration and civil rights
law. Amici have a further interest in assisting the
Court to understand this history and ensure that the
promises of the Fourteenth Amendment are not
unfairly denied to Asian Americans and other
communities.
LIST OF AMICI CURIAE
Alabama Asian Bar Association
Arizona Asian American Bar Association
Asian American Bar Association of the Greater Bay
Area
Asian American Bar Association of Greater Chicago
Asian American Bar Association of New York
Asian American Bar Association of Ohio
Asian American Criminal Trial Lawyers
Association
3
Asian American Lawyers Association of
Massachusetts
Asian Bar Association of Washington
Asian Pacific American Bar Association of Central
Ohio
Asian Pacific American Bar Association of Colorado
Asian Pacific American Bar Association of Los
Angeles County
Asian Pacific American Bar Association of
Pennsylvania
Asian Pacific American Bar Association of Silicon
Valley
Asian Pacific American Bar Association of Solano
County
Asian Pacific American Bar Association of South
Florida
Asian Pacific American Bar Association of Tampa
Bay, Inc.
Asian Pacific American Women Lawyers Alliance
Asian/Pacific Bar Association of Sacramento
California Asian Pacific American Bar Association
Dallas Asian American Bar Association
Filipino American Lawyers Association of Chicago
4
Filipino American Lawyers Association of New
York
Filipino American Lawyers of San Diego
Filipino Bar Association of Northern California
Filipino Lawyers of Washington
Georgia Asian Pacific American Bar Association
Greater Orlando Asian American Bar Association
Japanese American Bar Association
Korean American Bar Association of Northern
California
Korean American Bar Association of San Diego
Korean American Bar Association of Southern
California
Korean American Bar Association of Washington,
DC
Minnesota Asian Pacific American Bar Association
Missouri Asian American Bar Association
National Asian Pacific American Bar Association
National Asian Pacific American Bar Association
Hawaii
National Asian Pacific Islander Prosecutors
Association
5
National Conference of Vietnamese American
Attorneys
National Filipino American Lawyers Association
Oregon Asian Pacific American Bar Association
Pan Asian Lawyers of San Diego
Philippine American Bar Association
Sacramento Filipino American Lawyers Association
South Asian Bar Association - San Diego
South Asian Bar Association of New Jersey
Southern California Chinese Lawyers Association
Thai American Bar Association
Vietnamese
Washington
American
Bar
6
Association
of
SUMMARY OF ARGUMENT
The plain text of the Fourteenth Amendment
and longstanding historical precedent lead to the
inevitable
conclusion
that
EO
14160
is
unconstitutional. In an attempt to justify depriving
millions of Americans of birthright citizenship,
Defendants-Petitioners (“Petitioners”) distort the
holding of United States v. Wong Kim Ark, relying
upon the Court’s statement that Wong Kim Ark was
born to parents who “were at the time of his birth
domiciled residents of the United States, having
previously established and still enjoying a
permanent domicil [sic] and residence therein at San
Francisco.” 169 U.S. 649, 652 (1898). Based on the
Court’s statement, Petitioners assert that the
Supreme Court’s holding was limited “to the
children of those with a ‘permanent domicil[e] and
residence in the United States,’” and argue by
analogy that only children of U.S. citizens or lawful
permanent residents are eligible for birthright
citizenship under the Fourteenth Amendment. See
Pet. Br. at 32-37 (quoting Wong Kim Ark, 169 U.S.
at 652-53).
Petitioners’ reliance on this ancillary factual
assertion in Wong Kim Ark is dubious at best, and it
does not support the constitutionality of EO 14160.
To the contrary, Wong Kim Ark affirms the
fundamental principle that the right to citizenship
enshrined in the Fourteenth Amendment cannot be
revoked on a whim, regardless of the popularity of
anti-immigrant sentiment or the determination of
the Executive Branch at any particular point in
history. That holding is consistent with the plain
7
language of the Fourteenth Amendment. The
holding is also underscored by the Congressional
debates surrounding the Fourteenth Amendment’s
enactment, which make clear that Congress
explicitly considered the children of Chinese
migrants—who, at the time, were widely viewed as
temporary sojourners rather than permanent
residents of the United States—and intended for
them to be covered by the concept of birthright
citizenship enshrined in the Amendment.
Wong Kim Ark tested the strength of the
Constitution at a time when strong anti-Asian
immigrant sentiment resulted in a systematic effort
to drive the Chinese out of the United States. As set
forth below, the concept of a “permanent” domicile
for Chinese migrants in the United States was
illusory in the late 1800s, due to legal restrictions
and heinous violence. Chinese migrants had nothing
close to the legal rights or stability enjoyed by
today’s lawful permanent residents. They had no
pathway to U.S. citizenship, only a pathway back to
China or, in some cases, death.
Even within the socio-political context of that
time, however, and when the “permanency” of his
parents’ domicile was notional at best, this Court
held that Wong Kim Ark had a constitutional right
to citizenship. The children of immigrants born in
the United States today must have the same
protections. Petitioners’ arguments should be
rejected, and the injunction should be affirmed.
8
ARGUMENT
I.
THE HISTORICAL CONTEXT
UNDERLYING WONG KIM ARK
REFUTES PETITIONERS’
ARGUMENTS.
To understand why Petitioners’ arguments
regarding Wong Kim Ark and other cases from the
late 1800s and early 1900s fail, it is important to first
understand the historical context leading up to those
decisions. In that regard, Petitioners repeatedly
invoke the notion that birthright citizenship hinges
on the status of the alien parent, who, through
“domicile,” purportedly becomes “completely subject”
to the United States’ “political jurisdiction” by giving
“direct and immediate allegiance to the Nation and
in return claiming its protection.” Pet. Br. at 2, 11,
14, 18-20. As the history demonstrates, Chinese
migrants, such as Wong Kim Ark’s parents, who
resided in the United States during the era following
the ratification of the Fourteenth Amendment and
wholesale Chinese exclusion, were neither afforded
protections by, nor were they considered as having
given their allegiance to, the United States. Yet
children born on U.S. soil to this disfavored migrant
class were conferred with birthright citizenship.
A.
Chinese Migrants Arrived in the
United States Before the Civil
War.
Chinese migrants first arrived in the United
States in large numbers beginning in 1849,
contributing grueling—and often deadly—labor that
was integral to the expansion and prosperity of the
9
United States, including mining and the building of
the transcontinental railway. 7 The influx of these
laborers from China, and the early immigrant
communities they established, were met by strong
xenophobic sentiment and racial tensions, however.
In 1889, this Court recounted the prevailing hostile
sentiments at the time by summarizing California
politicians’ grievances about Chinese migrants:
[T]he presence of Chinese laborers had
a baneful effect upon the material
interests of the State, and upon public
morals; that their immigration was in
numbers approaching the character of
an Oriental invasion, and was a
menace to our civilization . . . .
Chae Chan Ping v. U.S., 130 U.S. 581, 595-96 (1889).
The Court noted that politicians at the time were
being asked “to take measures to prevent [the
Chinese migrants’] further immigration.” Id. Thus,
as discussed below, by the time Wong Kim Ark was
born in the late 1800s, the social and political
sentiments were culminating in legal—and illegal—
efforts to prevent people like his parents from living,
working, and raising their families in American
society.
See Chinese Labor and the Iron Road, NATIONAL PARK
SERVICE,
https://www.nps.gov/gosp/learn/historyculture/chinese-laborand-the-iron-road.htm (last updated Apr. 29, 2025).
7
10
B.
The Fourteenth Amendment Was
Intended to Confer Birthright
Citizenship on All Children Born
in the United States, Including
Children of Chinese Migrants.
The Fourteenth Amendment was ratified in
1868, nearly two decades after large numbers of
Chinese migrants first began coming to the United
States. While addressing the holding in Dred Scott
v. Sandford, 60 U.S. 393 (1857), which swept away
the prospect of citizenship for anyone of African
descent (whether free or enslaved), Congress did not,
contrary to Petitioners’ argument (Pet. Br. at 2-3,
13-14, 23-24), intend to limit the Citizenship Clause
of the Fourteenth Amendment only to the newly
freed former slaves and their children. In fact, the
Congressional debates surrounding the Fourteenth
Amendment confirm that Congress specifically
considered the application of the Citizenship Clause
to the children of Chinese migrants, and intended
that the Citizenship Clause would cover those
children.
As this Court recounted in greater detail in
Wong Kim Ark (see 169 U.S. at 698-99), Senator
Edgar Cowan of Pennsylvania objected to the
proposed text of the Citizenship Clause because it
would provide for birthright citizenship to any child
born in the United States. 8 In response, Senator
John Conness of California stated that “[t]he
proposition before us,” i.e., the Citizenship Clause,
“relates simply in that respect to the children
8 CONG. GLOBE, 39th Cong., 1st Sess. 2890 (1866), available at
https://babel.hathitrust.org/cgi/pt?id=chi.11948493&seq=120.
11
begotten of Chinese parents in California, and it is
proposed” by the Citizenship Clause “to declare that
they shall be citizens.” 9 Senator Conness continued
that the proposal before Congress was “to
incorporate…in the fundamental instrument of the
nation…that the children of all parentage whatever,
born in California, should be regarded and treated
as citizens of the United States, entitled to equal
civil rights with other citizens of the United
States.” 10 Senator Conness’ views prevailed; rather
than amend the text, as Senator Cowan apparently
wished, the Fourteenth Amendment, with the
Citizenship Clause included, passed the Senate 3311. 11
Although Petitioners take a partial quote
from another portion of the Congressional debate
out of context (Pet. Br. at 3, 24), that exchange
actually reinforces the point that birthright
citizenship was intended to cover all children born
in the United States. Specifically, Senator Benjamin
Wade of Ohio proposed that the Senate amend the
text of the Fourteenth Amendment to omit the word
“citizen,” due to uncertainty about the meaning of
that term, and to instead provide for “equal rights
and protection of person and property to all persons
born in the United States or naturalized under the
9 Id. 2890-91.
10 Id.
See Senate Roll Call Vote on the 14th Amendment, U.S.
SENATE,
https://www.senate.gov/artandhistory/history/common/image/
RollCall_681866_14thAmendment.htm (last visited Jan. 26,
2026).
11
12
laws thereof.” 12 Senator Wade stated that any
persons born in the United States would “[m]ost
assuredly…be citizens of the United States, unless
they went to another country and expatriated
themselves….” 13
At that point, Senator William Fessenden of
Maine interjected with the hypothetical that
Petitioners misquote in part: “[s]uppose a person is
born here of parents from abroad temporarily in this
country.” 14 Senator Wade responded by stating that
“[t]he Senator says a person may be born here and
not be a citizen. I know that is so in one instance, in
the case of children of foreign ministers, who reside
‘near’ the United States, in the diplomatic
language.” 15 In other words, Senator Wade stated
that all persons born in the United States would be
citizens, even if their parents were only here
temporarily, unless they renounced their citizenship
or fell into recognized exceptions, such as the
children of diplomats, invading armies, and those
born on foreign public ships. 16
Far from signaling that Congress “agreed”
that birthright citizenship did not apply to children
born to those in the United States temporarily
12 CONG. GLOBE, 39th Cong., 1st Sess. 2768-69 (1866), available
at https://babel.hathitrust.org/cgi/pt?id=osu.32437011560394&seq=7.
13 Id. 2769.
14 Id. (emphasis added). When misquoting this portion of the
debate, Petitioners omitted the word “suppose.” See Pet. Br. 3,
24.
15 CONG. GLOBE, 39th Cong., 1st Sess. 2769 (1866), available at
https://babel.hathitrust.org/cgi/pt?id=osu.32437011560394&seq=7.
16 See id.
13
(contra Pet. Br. at 3, 24), the debates around the
Fourteenth Amendment confirm that birthright
citizenship would extend to the children of Chinese
migrants and others widely considered to be
sojourners, 17 even if the parents were only in the
country temporarily.
C.
Rising Anti-Chinese Sentiment
Led to Exclusionary Laws.
Mounting anti-Chinese sentiment in the
United States in the late 1800s was accompanied by
aggressive legislative efforts to exclude Chinese
migrants from living and working in American
society, underscoring that Chinese migrants with a
purported “domicile” in the United States did not
have legal status, rights, or protections.
California, where a significant portion of the
Chinese immigrant community lived, systematically
imposed draconian measures on persons of Chinese
ancestry, including a constitutional ban on the
employment of “any Chinese or Mongolian” by any
California company or government agency and the
exclusion of Chinese children from schools. 18 Other
laws that were facially neutral were ultimately
See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 2890, 2892
(1866),
available
at
https://babel.hathitrust.org/cgi/pt?id=chi.11948493&seq=120
(discussing children of Chinese migrants and itinerant
“Gyps[ies]”).
18 See CAL. CONST. of 1879, art. XIX; Tape v. Hurley, 66 Cal.
473, 9 P. 129 (1885) (upholding law permitting the exclusion of
a San Francisco-born child of Chinese descent from attending
California public school).
17
14
found to be
application. 19
discriminatory
in
intent
and
Laws were also enacted seeking, either
directly or indirectly, to prevent the arrival of new
immigrants. For example, a California law
empowered
the
State’s
Commissioner
of
Immigration to, at his discretion, bar the arrival of
any passenger deemed to be “lunatic, idiotic, deaf,
dumb, blind, crippled . . . a convicted criminal, or a
lewd or debauched woman.” See Chy Lung v.
Freeman, 92 U.S. 275, 277 (1875). As exemplified in
Chy Lung v. Freeman, in which California’s
Commissioner of Immigration had ordered the
detention and deportation of over 20 female
passengers on a vessel from China, the statute (and
many other similar laws) served to bar women of
Asian descent from entering the United States
under the gendered pretext of immorality. See id.
After the Supreme Court struck down the California
law in 1875, 20 the regulation of immigration largely
shifted from state to federal jurisprudence.
The Page Act of 1875 was the first federal law
designed to restrict immigration into the United
19 See Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (finding
that law requiring permits for laundries targeted Chinese
businesses in application); Ho Ah Kow v. Nunan, 12 F. Cas. 252
(No. 6546) (C.C.D. Cal. 1879) (ordinance permitting shearing
of culturally-significant braided hair worn in queues by
Chinese men was intended only for Chinese men and
constituted cruel and unusual punishment).
20 The California statute was found to be in violation of the
Constitution, as State regulation of immigration conflicted
with the exclusive authority of Congress to make laws
governing foreign relations and international commerce. See
Chy Lung, 92 U.S. at 281.
15
States, barring “any importation . . . of women into
the United States for the purposes of prostitution”
and singling out those from “China, Japan, or any
Two
years
later,
a
Oriental
country.” 21
Congressional Joint Committee concluded: “[t]he
Chinese do not come to make their home in this
country; their only purpose is to acquire what would
be a competence in China and return there to enjoy
it.” 22 Referring to foreign-born, non-U.S. citizen
migrants, the Committee stated: “[t]he Chinese do
not desire to become citizens of this country, and
have no knowledge or appreciation for our
institutions....[I]t would be destructive to the Pacific
States to put the ballot in their hands....” 23
Yet, this Chinese migrant population, widely
viewed as a source of temporary labor and whose
members intended to return to China, were
characterized as “domiciled,” in the United States.
Far from viewing Chinese migrants as having an
entrenched and permanent presence, with
attendant allegiance to the United States, the Joint
Committee
heard
testimony
from
Frank
McCoppin—the former mayor of San Francisco and,
at the time, a California State Senator—that
thousands of Chinese were “domiciled” in San
Francisco, including Chinese women who were
barred from entering into the United States by the
Page Act, and individuals that McCoppin asserted
were part of “the class called criminal.” 24 Another
21 Page Act of 1875, ch. 141, 18 Stat. 477 (repealed 1974).
S. REP. NO. 689 at VII (1877), available at
https://babel.hathitrust.org/cgi/pt?id=coo.31924073426482.
23 Id. at VII.
24 Id. at 10-11.
22
16
witness before the Joint Committee, former
California Attorney General Frank M. Pixley, stated
that “[a]ll Chinese contemplate returning” and that
“[i]f any Chinese homestead in the State of
California has ever been carved out under our law I
have never heard of it.” 25 It is clear from this
Congressional testimony that the word “domicile”
was simply used at the time to mean that the
Chinese “lived there.”
Three years after the Joint Committee
Report, the Angell Treaty of 1880 amended an
earlier treaty between the United States and China
(the Burlingame Treaty) to permit the United States
to regulate, limit, or suspend the entrance or
residence of Chinese immigrants. 26 This treaty was
followed by the Chinese Exclusion Act of 1882
(suspending the immigration of all Chinese laborers
for 10 years), the Scott Act of 1888 (providing that
any Chinese laborer previously residing in the
United States who had left and not returned by the
effective date of the Act could not return to or remain
in the United States, including those holding reentry
certificates who remained overseas), and the Geary
Act of 1892 (extending the 1882 Chinese Exclusion
for another decade and expanding its prohibitions). 27
Subsequent laws, such as the Immigration Act of
25 Id. at 16.
Angell Treaty, China-U.S., Nov. 17, 1880, 22 Stat. 826
available at https://www.govinfo.gov/content/pkg/STATUTE22/pdf/STATUTE-22-Pg826.pdf#page=1.
27 See Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58; Scott
Act, ch. 1064, 25 Stat. 504 (1888); Geary Act, ch. 60, 27 Stat.
25 (1892).
26
17
1917, more broadly banned immigrants from other
parts of Asia. 28
D.
Chinese Migrants Faced
Widespread Violence Due to the
Anti-Immigrant Sentiments of the
Time.
Chinese exclusion laws were not the only
obstacle facing Chinese migrants during this era.
Throughout the years of Wong Kim Ark’s childhood,
Chinese migrants faced the threat of widespread
violent attacks, expulsions, and lynchings. 29
Historians recount a systematic wave of antiChinese violence and expulsions that many would
consider incomprehensible today. 30 In October 1871,
a mob of over 500 swarmed the tiny Chinatown in
Los Angeles, looting and gruesomely murdering 18
Chinese men in one of the largest lynchings in
American history. 31 Nearly 30 Chinese persons were
murdered in the 1885 Rock Springs massacre in
Wyoming. 32 In the same year, between 150-200
28 Immigration Act of 1917, ch. 29, 39 Stat. 874.
29 Kevin Waite, The Bloody History of Anti-Asian Violence in
the West, NATIONAL GEOGRAPHIC (May 10, 2021), available at
https://www.nationalgeographic.com/history/article/thebloody-history-of-anti-asian-violence-in-the-west.
30 Laws at the time often protected the perpetrators of violence
by prohibiting non-Caucasian witnesses from testifying
against a “free white citizen.” See People v. Hall, 4 Cal. 399
(1854) (reversing the murder conviction of a “free white citizen”
upon the exclusion of testimony from Chinese eyewitnesses).
31 Kelly Wallace, Forgotten Los Angeles History: The Chinese
Massacre of 1871, LOS ANGELES PUBLIC LIBRARY (May 19,
2017),
https://www.lapl.org/collectionsresources/blogs/lapl/chinese-massacre-1871.
32 Tom Rea, The Rock Springs Massacre, WYO HISTORY
(November
8,
2014),
available
at
18
Chinese persons were expelled at gunpoint in
Tacoma, Washington, with their homes burned to
the ground. 33 And in Wong Kim Ark’s hometown of
San Francisco, when he was about four years old, the
deadly 1877 riot in San Francisco’s Chinatown
lasted for two days, with the mob of hundreds looting
and torching businesses, and killing four Chinese
immigrants. 34
Possibly due to this widespread hostility and
violence, Wong Kim Ark’s parents—contrary to
Petitioners’ attempted characterization of them as
“permanent residents”—ultimately returned to
China. As Professor Amanda Frost put it, Wong Kim
Ark’s parents “likely never considered America to be
their permanent home, however, and for good
reason. ‘The Chinese must go,’ was the slogan of one
prominent labor leader—a message the family
received daily in big ways and small.’” 35
II.
AGAINST THE BACKDROP OF
CHINESE EXCLUSION, THIS COURT
NONETHELESS HELD THAT WONG
KIM ARK WAS A U.S. CITIZEN.
Wong Kim Ark was a California-born U.S.
citizen whose return from an overseas trip to visit
family in China resulted in months-long detention
and a drawn-out legal battle for his right to remain
https://www.wyohistory.org/encyclopedia/rock-springsmassacre.
33 Beth Lew-Williams, The Chinese Must Go (2018).
34 Amanda Frost, “By Accident of Birth”: The Battle over
Birthright Citizenship After United States v. Wong Kim Ark,
32 YALE J.L. & HUMAN. 38-76 (2021).
35 Id. at 43-44.
19
and live in his actual homeland, the country of his
birth. His case established a landmark precedent,
affirming that the Citizenship Clause of the
Fourteenth Amendment applies to children born to
non-citizens in the United States. Wong Kim Ark,
169 U.S. at 652–705.
Wong Kim Ark was born in 1873 to Chinese
parents who lived in and operated a business in San
Francisco’s Chinatown. Id. at 652. 36 As recounted by
the Court, Wong Kim Ark’s parents “continued to
reside and remain in the United States until the
year 1890, when they departed for China.” Id.
In 1890, the then-17-year-old Wong Kim Ark
“departed for China upon a temporary visit,”
returning home to the United States later that year
without incident. Id. at 653. Wong Kim Ark
continued to live in California into his 20s,
reportedly working as a cook in San Francisco. In
1894, at the age of 21, Wong Kim Ark again made
what the Court described as a “temporary visit” to
China to see his family “with the intention of
returning to the United States.” Id. But when he
attempted to re-enter the United States one year
later, he was denied entry and detained with a
threat of deportation “upon the sole ground that he
was not a citizen of the United States.” Id. Although
Wong Kim Ark’s parents were described as “subjects
of the Emperor of China,” the Supreme Court found
that Wong Kim Ark himself had always held
Although subsequent historical analyses and popular
accounts have varied on different details, the facts of the case
are recounted herein as they were described in this Court’s
recitation of the parties’ agreed facts.
36
20
“allegiance” to the United States. Id. at 652. In
recounting the stipulated facts of the case, the
Supreme Court noted:
Wong Kim Ark, ever since his birth,
has had but one residence, to-wit, in
California, within the United States
and has there resided, claiming to be a
citizen of the United States, and has
never lost or changed that residence, or
gained or acquired another residence;
and neither he, nor his parents acting
for him, ever renounced his allegiance
to the United States, or did or
committed any act or thing to exclude
him therefrom.
Id. at 652-53.
Despite the historical context described
above, including the numerous laws passed during
Wong Kim Ark’s life denying Chinese persons a
pathway to U.S. citizenship, the Court held that
“acts of Congress or treaties [excluding Chinese
persons from naturalization] cannot exclude
Chinese persons born in this country from the
operation of the broad and clear words of the
Constitution, ‘All persons born in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States.’” Id. at 704.
Wong Kim Ark was consistent with other
decisions from the 1890s. The Court noted that in its
earlier decision in Quock Ting v. United States, 140
U. S. 417 (1891), “it was assumed on all hands that
a person of the Chinese race, born in the United
21
States, was a citizen of the United States.” Wong
Kim Ark, 169 U.S. at 696. The Quock Ting case
turned on the quantum of evidence required to prove
birth in the United States; the Court made no
mention whatsoever of the status of Quock Ting’s
parents (let alone the issue of domicile), nor did it
suggest that an analysis of Quock Ting’s parents was
in any way relevant. See 140 U.S. at 419-22.
The Wong Kim Ark Court noted other
supporting decisions, including In re Look Tin Sing,
21 F. 905 (9th Cir. 1884), in which then-Supreme
Court Justice Stephen Field, sitting by designation,
delivered the opinion of the court. See Wong Kim
Ark, 169 U.S. at 697. Justice Field and the Ninth
Circuit judges held that a Chinese child born in the
United States was automatically a U.S. citizen: “no
one asks whether his parents were citizens or
foreigners. It is enough that he was born here,
whatever was the status of his parents.” Look Tin
Sing, 21 F. at 910 (bold emphasis added). 37
Justice Field stated that the plain language of
the Citizenship Clause “would seem to be
sufficiently broad to cover the case of the petitioner.
He is a person born in the United States.” Id. at 906.
37 The holding of Look Tin Sing is consistent with
8 U.S.C.
§ 1401(f). See Pet. App. 2a. That provision provides that “a
person of unknown parentage found in the United States while
under the age of five years, until shown, prior to his attaining
age of twenty-one years, not to have been born in the United
States” is a “national[] and citizen[] of the United States at
birth.” See id. Congress concluded, like the Court in Look Tin
Sing, that the status of a child’s parents is irrelevant to the
question of whether the child is a U.S. citizen when that child
is born on U.S. soil.
22
Consistent with Senator Wade’s statements during
the Fourteenth Amendment debates, supra, Justice
Field noted that there are exceptions for “persons
engaged in the diplomatic service of foreign
governments”; “[p]ersons born on a public vessel of a
foreign country”; and persons who “have renounced
their allegiance to our government” and have chosen
“to expatriate himself and” move to “another
country.” Id. Justice Field found that the petitioner
in that case did not fall “within any of the classes of
persons excepted from citizenship,” and thus was a
citizen by birthright. Id. at 906.
Those
contemporaneous decisions are
consistent with, and help explain the reasoning of,
Wong Kim Ark: Wong Kim Ark’s citizenship did not
depend on parents having a “domicile” in the United
States, but rather on his being born in the United
States. Petitioners’ cited authorities (Pet. Br. at 36)
are not to the contrary. 38 For example, Chin Bak
Kan v. United States, 186 U.S. 193, 200 (1902)
addressed the question of whether a federal
commissioner had jurisdiction to render a
deportation ruling, in what we would now call an
administrative proceeding, when the individual to
be deported claimed to be a U.S. citizen; the Court
did not decide whether that individual was, in fact,
a citizen.
In short, the Court in Wong Kim Ark held,
consistent with the plain language of the Fourteenth
Amendment, that a child born on U.S. soil is a U.S.
citizen, regardless of the status of the child’s
38 Certain of Petitioners’ other cited authorities are addressed
in Section III below.
23
parents. Petitioners’ argument that the Fourteenth
Amendment and Wong Kim Ark mean something
other than what they actually say should be rejected.
III.
WONG KIM ARK’S PARENTS ARE NOT
ANALOGOUS TO PRESENT-DAY
IMMIGRANTS.
As the discussion above makes clear, the
immigration landscape of Wong Kim Ark’s time
differed dramatically from present-day immigration
laws and regulations. Wong Kim Ark’s parents
cannot be analogized to the lawful permanent
residents of today, and the Court’s decision in Wong
Kim Ark cannot be read as excluding from its reach
the children of persons who today might be
derisively referred to as “unlawful immigrants” or
“illegal aliens.”
When Wong Kim Ark was born, there was no
Immigration and Customs Enforcement, Customs
and Border Protection, Ellis Island, green cards, or
visas. The only federal immigration law in place was
the Naturalization Act of 1790. 39 That statute
limited naturalization to free, Caucasian persons,
but immigration was, in theory, open to individuals
of any race or nationality. 40 The only other federal
authority relating to “Chinese subjects visiting or
residing in the United States” when Wong Kim Ark
was born was the Burlingame Treaty of 1868. 41
39 Naturalization Act of 1790, ch. 3, § 1, 1 Stat. 103.
40 See id.
41 Burlingame-Seward Treaty, China-U.S., July 28, 1868, 18
Stat.
147
art.
VI,
available
https://www.loc.gov/resource/rbpe.23602400/.
24
at
Accordingly, Petitioners’ attempts to draw a
fraught parallel between the lawful permanent
residents of today (i.e., “green card holders”) and
Wong Kim Ark’s parents fail because the concepts of
“lawful permanent residence” and visa-based legal
residency simply did not exist in 1873. 42 Moreover,
at the time of Wong Kim Ark’s birth, “permanent
residence” for Chinese immigrants was an illusory
concept that came under a withering barrage of legal
attack. Besides having an unclear immigration
status that was continuously and systematically
derogated, Chinese migrants like Wong Kim Ark’s
parents did not have the same rights or
responsibilities as modern-day immigrants and
green card holders.
First, green card holders today have a
pathway to U.S. Citizenship (8 U.S.C. § 1427) 43—
something expressly prohibited for Chinese
migrants like Wong Kim Ark’s parents. Similarly, H1B visa holders may have “dual intent,” permitting
otherwise “temporary” nonimmigrant workers to
42 It was not until the Immigration Act of 1924 that the concept
of a lawful permanent resident as an immigration category was
enshrined into statute. That law distinguished between
“immigrants” (i.e., those intending to stay permanently in the
United States) and “non-immigrants” (i.e., tourists and other
temporary visitors). Asian immigrants were denied lawful
permanent resident status at the time, however, as the Act
extended a prior 1917 ban on immigration from most Asian
countries to the entire continent of Asia.
43 See I am a Lawful Permanent Resident of 5 Years, U.S.
CITIZENSHIP
AND
IMMIGRATION
SERVICES,
https://www.uscis.gov/citizenship/learn-aboutcitizenship/citizenship-and-naturalization/i-am-a-lawfulpermanent-resident-of-5-years (last updated Jan. 24, 2025).
25
seek lawful permanent residence. 44 Even holders of
non-resident or non-immigrant visas that do not
carry a path to citizenship may potentially apply for
a change of status to a resident visa or to a green
card. For example, international student visa
holders (many of whom are here for years) can apply
for the Optional Practical Training (OPT) program
that allows them to work in their field of study for
up to 12 months after completing their degree, after
which they can potentially transition “to other
immigration statuses,” including lawful permanent
resident status; 45 this is particularly relevant for
students hailing from Asia, who comprise 71% of the
foreign student population in the United States. 46
Unlike today’s legal immigrants, Wong Kim
Ark’s parents had no chance of ever gaining
citizenship in the United States due to numerous
legal barriers, including the Naturalization Act of
1790, the Burlingame Treaty of 1868, the Chinese
Exclusion Act of 1882, and later Supreme Court
precedents. 47 Petitioners nonetheless persist in
claiming that “the law has traditionally treated an
alien domiciled in the country as a ‘kind of citizen,’
44 See Foreign Affairs Manual, U.S. DEP’T OF STATE, 9 FAM
402.10-10(A)(U) (Sept. 29, 2022).
H. Wilson, Optional Practical Training (OPT) for
Foreign Students in the United States, CONGRESSIONAL
RESEARCH SERVICE (May 30, 2025), https://www.congress.gov/
crs-product/IF12631.
46 See ICE Releases 2024 SEVP Annual Report, IMMIGRATION
CUSTOMS
ENFORCEMENT
(June
5,
2025),
AND
https://www.ice.gov/news/releases/ice-releases-2024-sevpannual-report.
47 See, e.g., Ozawa v. United States, 260 U.S. 178 (1922); Thind
v. United States, 261 U.S. 204 (1923).
45 See Jill
26
‘united and subject to the society’” (Pet. Br at 19),
but their own cited authority is to the contrary. As
this Court put it in a case cited by Petitioners (Pet.
Br. at 11, 20, 29), although migrants with a
“domicile” in the United States were entitled “to the
safeguards of the Constitution” while here, “they
continue to be aliens, having taken no steps towards
becoming citizens, and incapable of becoming
such under the naturalization laws,” such that
Congress could “expel them, or [] order them to be
removed,” essentially at will. Fong Yue Ting v.
United States, 149 U.S. 698, 724 (1893) (emphasis
added). Being “incapable” of becoming U.S. citizens,
and being removable essentially at will, is a far cry
from the circumstances of today’s green card
holders.
For that reason, Petitioners are wrong to rely
upon a statement by a commentator that pre-dated
Wong Kim Ark and asserted that “Chinese born of
Chinese non-naturalized parents, such parents not
being domiciled, are not citizens.” Pet. Br. at 26
(emphasis added by Petitioners). This statement
cannot be reconciled with Wong Kim Ark, since
Wong Kim Ark’s parents, though they had a U.S.
“domicile,” were “non-naturalized” and in fact could
not become naturalized citizens, as set forth above.
This Court held that Wong Kim Ark was a U.S.
citizen anyway.
Second, holders of present-day immigration
visas and green cards may freely travel overseas, on
the condition that they return to the United States, 48
See International Travel as a Permanent Resident, U.S.
Citizenship
and
Immigration
Services,
48
27
something that most Chinese migrants in the 1880s
were not allowed to do. For example, in 1889, this
Court upheld the exclusion of Chae Chan Ping, a
Chinese laborer and decades-long U.S. resident, who
left for a visit to China in 1887 while holding a valid
certificate of return. See Chae Chan Ping, 130 U.S.
at 582. On his way back, literally while at sea,
Congress passed the Scott Act of 1888, which
forbade his entry. Id. In denying his re-entry, the
Court wrote of Chinese migrants:
[T]hey remained strangers in the land,
residing apart by themselves, and
adhering to the customs and usages of
their own country. It seemed
impossible for them to assimilate with
our people, or to make any change in
their habits or modes of living.
Id. at 595. Similar exclusions were upheld by the
Court in Fong Yue Ting, supra, and Lem Moon Sing
v. United States, 158 U.S. 538, 548 (1895), 49 the
latter of which denied reentry of a Chinese merchant
with “permanent domicile” in San Francisco—
exactly like Wong Kim Ark’s parents. See Lem Moon
Sing, 158 U.S. at 539. The Court stated that Lem
Moon Sing “cannot, by reason merely of his domicile
in the United States for purposes of business,”
https://www.uscis.gov/green-card/after-we-grant-your-greencard/international-travel-as-a-permanent-resident
(last
updated Sept. 12, 2025).
49 Lem Moon Sing was superseded by Dep’t of Homeland Sec.
v. Thuraissigiam, 591 U.S. 103, 136 (2020) (stating that, in
early finality era cases, the Court took pains to note that it did
not express any opinion on whether an alien was entitled to
enter).
28
demand to re-enter the country. Id. at 548. Chinese
individuals who purportedly had “permanent
domicile and residence” during this period often lost
that right as soon as they left the United States,
distinguishing them from today’s visa-holders and
lawful permanent residents. For all the purported
protections and allegiances the Petitioners attribute
to having a domicile in the United States, in the case
of Chinese migrants like Wong Kim Ark’s parents,
“domicile” would not even be enough for re-entry into
the country, let alone the lynchpin for birthright
citizenship.
To try to get around this result, Petitioners
cite to cases (involving litigants of Asian heritage)
that do not support their contention. For example,
Lau Ow Bew v. United States, 144 U.S. 47 (1892)
(cited in Pet. Br. at 19-20)—a case that did not relate
to birthright citizenship—stated in dicta, relied
upon by Petitioners, that under “general
international law…foreigners who have become
domiciled in a country other than their own, acquire
rights and must discharge duties in many respects
the same as possessed by and imposed upon citizens
of that country.” Lau Ow Bew, 144 U.S. at 61-62.
Notwithstanding the dicta in Lau Ow Bew, the
Court later made clear in Fong Yue Ting and Lem
Moon Sing that not every Chinese migrant with a
U.S. “domicile” had the legal right to re-enter or
remain in the United States. Fong Yue Ting, 149
U.S. at 724-32; Lem Moon Sing, 158 U.S. at 548.
Other cases cited by Petitioners are even
further afield. See Pet. Br. at 36. Petitioners rely on
Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920) for
29
the proposition that “someone is a U.S. citizen if
born here to aliens who ‘were permanently domiciled
in the United States.’” But, Kwock Jan Fat’s father,
a Chinese-American named Kwock Tuck Lee, was
actually born in the United States, not an “alien”;
the Court described his father as “native born” and
a “registered voter.” Kwock Jan Fat, 253 U.S. at 460.
That case, and the others cited by Petitioner, quite
obviously say nothing about whether foreign-born
immigrants, like Wong Kim Ark’s parents, had
rights equivalent to today’s legal permanent
residents. 50 Petitioners also rely on Tuan Ahn
Nguyen v. INS, 533 U.S. 53 (2001) to justify the
exclusion of children born to persons not
permanently settled in the United States by
claiming that “American law has traditionally
limited U.S. citizenship to individuals who have a
meaningful ‘tie [to] this country.’” Pet. Br at 28. But
Tuan involved a child born overseas in Vietnam, not
on United States soil. See Tuan Anh, 533 U.S. at 57.
The “meaningful tie” at issue was whether a child
born overseas had a “meaningful relationship” with
Notably, Kwock Tuck Lee was considered a natural-born
U.S. citizen despite the fact that his parents (Kwock Jan Fat’s
grandparents) entered the country without documentation, in
a boat that shipwrecked near the coast of California and
decided to settle nearby, despite not arriving under the
auspices of the Burlingame Treaty or through an authorized
point of entry, and despite never being inspected by
government officials. See Laura A. Lee, History Rewritten: The
Story of Quock Mui Jeung, 11 ASIAN PACIFIC AMERICAN LAW
JOURNAL No. 1, pg. 77 (Spring 2006). Kwock Jan Fat therefore
undermines Petitioners’ argument because it supports the
proposition that all children born on U.S. soil are entitled to
U.S. citizenship, irrespective of their parents’ status or mode of
entry.
50
30
his U.S. citizen father sufficient to render the child
a “national[] and citizen[] of the United States”
pursuant to 8 U.S.C. § 1401(g). See id. at 64-68. That
case has nothing to do with children born in the
United States, as to whom the Fourteenth
Amendment establishes the “tie” by virtue of their
birth on U.S. soil.
There are yet more differences between
Chinese migrants in the late 1800s and today’s legal
permanent residents. Today’s green card holders
may petition for their children and spouses residing
overseas to join them permanently in the United
States, 51 conferring upon those relatives their own
pathway to citizenship. For Chinese migrants in the
United States at the end of the 19th century, like
Wong Kim Ark’s parents, however, the inability to
unite and live with their families was their legal and
everyday reality. 52
Finally, unlike Wong Kim Ark’s parents,
today’s legal immigrants and lawful permanent
residents must all demonstrate admissibility, which
means they are carefully scrutinized on a variety of
criteria including health-, national security-, and
51 See 8 U.S.C. § 1153(a)(2).
52 This anti-Chinese immigration regime even gave rise to the
“paper son” phenomenon, where aspiring Chinese immigrants
paid U.S.-born Chinese Americans to pretend to be their birth
fathers in order to claim derivative U.S. citizenship. Indeed,
these discriminatory anti-Chinese laws transformed today’s socalled “model minorities” into our nation’s first “illegal aliens.”
See Janet Lau, Stanley Hom Lau: Paper Son, PRIZED WRITING,
https://prizedwriting.ucdavis.edu/stanley-hom-lau-paper-son
(last visited Jan. 26, 2026).
31
public safety- related grounds. 53 Holders of resident
visas and green cards are required to pay federal
income taxes, and men ages 18-26 must register for
selective service. 54 Lawful permanent residents are
further entitled to live permanently in the United
States, work at any legal job of their choosing (with
narrow national security exceptions), and be
protected by all the laws of the federal, state, and
local jurisdictions. 55
Lawful permanent residents and holders of
many categories of visas today are on a pathway to
U.S. citizenship. The America that Wong Kim Ark’s
parents lived in was absolutely determined to send
Chinese migrants like them on a pathway back to
China. To suggest that Wong Kim Ark’s citizenship
status was dependent upon his parents being akin
to today’s lawful permanent residents ignores the
historical reality.
53 See Green Card Processes and Procedures, U.S. Citizenship
and Immigration Services, https://www.uscis.gov/greencard/green-card-processes-and-procedures (last updated Oct.
19, 2022).
54 See Tax information and responsibilities for new immigrants
to the United States, INTERNAL REVENUE SERVICE,
https://www.irs.gov/individuals/international-taxpayers/taxinformation-and-responsibilities-for-new-immigrants-to-theunited-states (last updated Oct 3, 2024); Who Needs to Register,
SELECTIVE SERVICE SYSTEM, https://www.sss.gov/register/whoneeds-to-register/ (last visited Jan. 26, 2026).
55 See Rights and Responsibilities of a Green Card Holder
(Permanent Resident), U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
https://www.uscis.gov/green-card/after-we-grantyour-green-card/rights-and-responsibilities-of-a-green-cardholder-permanent-resident (last updated Sept. 12, 2025).
32
CONCLUSION
For the Asian American communities that
NAPABA and its affiliates represent, EO 14160
would visit upon them the same injustices leveled
against Wong Kim Ark’s generation. For the
foregoing reasons, the judgment of the District Court
should be affirmed.
Respectfully submitted,
Date: February 25, 2026
Wendy M. Feng
Counsel of Record
SEYFARTH SHAW LLP
999 Third Avenue, Ste 4700
Seattle, Washington 98104
Telephone: (206) 946-4910
wfeng@seyfarth.com
Lori Chen
Owen R. Wolfe
Andrew R. Escobar
SEYFARTH SHAW LLP
Counsel for Amici Curiae
33
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