Chinese (PRC & ROC) Nationality Laws and Reconceptualizing Asian-American Identity

UCLA Asian Pacific American Law Journal Title Chinese (PRC & ROC) Nationality Laws and Reconceptualizing Asian-American Identity Permalink https://escholarship.org/uc/item/92w702kg Journal Asian Pacific American Law Journal, 22(1) ISSN 2169-7795 Author Ho, Norman P. Publication Date 2017 DOI 10.5070/P3221036572 eScholarship.org Powered by the California Digital Library University of California Chinese (PRC & ROC) Nationality Laws and Reconceptualizing Asian-American Identity Norman P. Ho* Existing Asian-American Jurisprudence (AAJ) scholarship has large- ly focused its attention on the impact of American laws on the experiences of Asian-Americans in the United States, particularly with respect to the themes of racialization and identity. This Article adopts a transnational and comparative approach, focusing on how Asian-Americans—specifically, Chinese-Americans—are racialized and affected by social perceptions and the nationality laws in their an- cestral home countries, the People’s Republic of China (PRC) and the Republic of China (ROC, or unofficially, Taiwan). Examining Chinese-Americans’ social (namely, perceptions and expectations from PRC and ROC society) and legal treatment (via nationality law) in these countries arguably allows us to reconceptualize Chinese-American identity as not simply a narrative of Americanization, but also one of Sinification. Coupled with perceptions of “foreignness,” “disloyalty,” and “inassimilability” in the United States, a twilight zone of Chinese-American identity occurs, where Chinese-Americans are in a tug-of-war between what might be described as “dueling vectors” of their American identity and the identity of their home countries. They may not feel fully accepted as “Americans,” but at the same time they may feel “over-accepted” as “Chinese” by the PRC or ROC. This Arti- cle uses specific case studies, namely the experiences of Chinese-American ESL teachers working and living in the PRC and ROC, former U.S. Ambassador to Chi- na Gary Locke, and NBA basketball player Jeremy Lin, to highlight the tensions between Americanization and Sinification of Chinese-American identity both by PRC and ROC society as well as PRC and ROC nationality law. INTRODUCTION On Sunday, October 9, 2016, Michael Luo—a middle-aged American of Chi- nese descent born in Pittsburgh—had finished attending church services in New York City’s well-to-do Upper East Side.1 He was with his baby, his friends, and his * Assistant Professor of Law, Peking University School of Transnational Law (contact email: [email protected]). I would like to thank colleagues at the Peking University School of Transna- tional Law, the NUS Law Center for Asian Legal Studies, and the HKU Center for Chinese Law for their comments. 1. Chris Fuchs, Politicians, Asian Americans Respond After New York Times Editor Told to ‘Go Back to China’, NBC NEWS, (Oct. 10, 2016), http://www.nbcnews.com/news/asian-america/ © 2017 Norman P. Ho. All rights reserved. 1 2 UCLA ASIAN PACIFIC AMERICAN LAW JOURNAL Vol. 22:1 family while they searched for some lunch amidst the rain.2 Luo’s baby stroller and his accompanying group had inadvertently blocked the path of a seemingly “nor- mal,” “well dressed” woman, who was clad in a “nice rain coat” and carrying an “iPhone 6 Plus.”3 Annoyed, this woman shouted, “Go back to China!” at Luo and his group.4 Luo ran to “confront” the woman, who took out her phone, threatened to call the police, and then screamed at Luo to “go back to your fucking country.”5 Luo promptly retorted, “I was born in this country!”6 Luo, the deputy Metro editor at the New York Times, later tweeted about this experience7 and penned an open letter addressed to the woman. The open letter was published in the New York Times8 and elicited an outpouring of responses in writ- ing9 and video10 from many Asian-Americans who shared their encounters and experiences with racism. In his open letter, Luo argued that this incident symbolized and epitomized the still-prevalent struggles with racism faced by Asian-Americans as a whole—namely, the “persistent sense of otherness” and the idea that “no matter what we [Asian-Americans] do, how successful we are, what friends we make, we don’t belong. We’re foreign. We’re not American.”11 Luo’s experience encapsulates the continued racialized stereotypes of Asian-Americans as somehow different and more foreign (and therefore, less American) than white Americans and other minorities in America. Asian-Ameri- can jurisprudence (AAJ) scholarship has focused heavily on understanding, critiqu- ing, and explaining how American law has caused, encouraged, and perpetuated such stereotypes. As Neil Gotanda has pointed out, AAJ scholarship has sought to reinterpret cases, statutes, and legal history in, inter alia, the narrative of race, i.e., the characterization of Asians as a “permanently foreign race . incapable of becoming Americans.”12 This stereotype, in turn, “became a regular dimension to the racialization of Asian-Americans.”13 In other words, AAJ scholarship has specifically pointed to notions of Asiatic inassimilability and the process of Asiatic politicians-asian-americans-respond-after-new-york-times-editor-told-n663746. 2. Michael Luo, An Open Letter to the Woman Who Told My Family to Go Back to China, N.Y. TIMES (Oct. 9, 2016), http://www.nytimes.com/2016/10/10/nyregion/to-the-woman-who-told-my-family-to-go-back-to-china.html. 3. Id. 4. Id. 5. Id. 6. Id. 7. Michael Luo (@michaelluo), TWITTER (Oct. 9, 2016, 5:55 PM), https://twitter.com/michaellu- o?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor. 8. Luo, supra note 2. 9. Michael Luo, ‘Go Back to China’: Readers Respond to Racist Insults Shouted at a New York Times Editor, N.Y. TIMES (Oct. 10, 2016), htpp://www.nytimes.com/2016/10/11/nyregion/go-back-to- china-readers-respond-to-racist-insults-shouted-at-a-new-york-times-editor.html? r=0. 10. John Woo & Yousur Al-Hlou, Race in America: #thisis2016: Asian-Americans Respond, N.Y. TIMES, Oct. 13, 2016, http://www.nytimes.com/video/us/100000004706646/thisis2016-asian-americans-respond.html. 11. Luo, supra note 2. 12. Neil Gotanda, New Directions in Asian American Jurisprudence, 17 ASIAN AM. L.J. 5, 8 (2010). 13. Id. 2016 RECONCEPTUALIzING ASIAN-AMERICAN IDENTITY 3 racialization, arguing that the Asiatic racial categorization has prevented and con- tinues to prevent US-born and foreign-born Asian-Americans from “obtaining full citizenship rights” and “denying them full political participation.”14 Existing AAJ scholarship has also intensely studied issues related to law and Asian-American identity, which is intimately connected with the aforementioned racialization of Asian-Americans as perpetual foreigners. Specifically, AAJ scholarship has at- tempted to “describe and advocate for a collective Asian-American identity” and to also “identify important imposed ascriptive racial stereotypes” (e.g., the notion of Asian-Americans as more foreign and less American than whites or other American minorities).15 In elucidating the above issues and questions, existing AAJ scholarship has predominantly looked to the following specific, substantive areas of US law: criminal law, constitutional law, and, especially, immigration law, the “most familiar terrain of Asian-American jurisprudence.”16 Indeed, as Julian Lim has noted, the “history of immigration exclusion has remained a vital component of Asian American jurisprudence, as attested to by its prominence in the scholarship and on Asian American jurisprudence course syllabi.”17 The focus of AAJ scholarship on these areas of law is not surprising: these areas often highlight an individual Asian-American’s preju- dicial experience and treatment under American law as well as his or her challenges fighting perceptions of inassimilability and threatening foreignness. There have been calls within AAJ scholarship, however, to broaden the field and adopt new approaches. Significantly, AAJ scholars have now engaged in “ex- plorations of international law, transnational law, the law of the American colonies, and our [America’s] imperial presence in Asia” and how they affect the Asian- American experience.18 Julian Lim has argued that the traditional major substantive themes of AAJ—i.e., immigration, citizenship, and race—should be expanded by adopting not solely an American but a transnational viewpoint and perspective in order to reconceptualize Asian-American identity.19 For example, Lim does not only consider American law’s treatment of Chinese immigrants (perhaps most no- toriously epitomized by the Chinese Exclusion Act of 188220), but also engages in a transnational analysis by looking at Asian immigrants to other parts of the world, such as Africa and Southeast Asia, and their corresponding experiences.21 Lim argues that this transnational approach highlights the “multidirectional circuits” of people and ideas. It helps us to reconceptualize Asian-American identity and the 14. Neil Gotanda, Citizenship Nullification: The Impossibility of Asian American Politics, in ASIAN AMERICANS AND POLITICS: PERSPECTIVES, EXPERIENCES, PROSPECTS 79, 80, 83 (Gordon H. Chang ed., 2001). 15. Id. at 16. 16. Gotanda, supra note 12, at 8. 17. Julian Lim, Reconceptualizing Asian Pacific American Identity at the Margins, 3 U.C. IRVINE L. REV. 1151, 1155 (2013). 18. Gotanda, supra note 12, at 60. 19. Lim, supra note 17, at 1156. 20. Chinese Exclusion Act, 22 Stat. 58 (1882), repealed by Chinese Exclusion Repeal Act of 1943, 57 Stat. 600. 21. Lim, supra note 17, at 1159. 4 UCLA ASIAN PACIFIC AMERICAN LAW JOURNAL Vol. 22:1 Asian-American experience by “rejecting the interpretations of Chinese immigration as a one way voyage toward Americanization, with its heartrending accounts of Chinese victims mired in anti-Chinese hostility and racism.”22 The transnational approach instead stresses transnational Chinese immigrants as “agents of change, an empowering symbol for modern Asian-Americans caught in and improvising at the cross-roads of globalization.”23 In short, a transnational approach can help pro- vide new interpretive frameworks and models for reaching a fuller understanding of Asian-American identity and the Asian-American experience.

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