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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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