Sikhs in America: “Perpetually Foreign, Automatically Suspect, and Potentially Terrorist”

[1] Gurupreet Kaur, a six-year-old Sikh girl, died while attempting to cross the southern border into the United States in June 2019.[2] She had traveled from India with her mother and had hoped to reunite with her father, who was already seeking asylum in New York.[3] Gurupreet and her mother were in their final stretch of walking from Mexico to Arizona, but their journey together ended in the Arizona desert when they separated while trying to find water to survive the unbearable heat.[4] Many immigrants have perished in that same strip of desert while attempting to enter the United States.[5]

The number of undocumented Indian nationals apprehended while crossing the southern border into the United States has increased in recent years, growing from just over 200 detained in 2009 to 1,200 detained in 2010.[6] In 2019 alone, nearly 10,000 Indian immigrants were detained at the southern border.[7] This increase in undocumented immigrants from India is due in part to the rise in violence and oppression of minorities that has accompanied Indian Prime Minister Narendra Modi and his Hindu-nationalist Bharatiya Janata Party’s rise to power in 2014.[8] Many of these immigrants are Punjabi Sikhs[9] who fled India, arrived at ports of entry to plead asylum, but now face detention or worse.

Since September 11, 2001, the U.S. government has increased its use of immigration detention to address national security concerns.[10] In detention, Sikhs face a substantial risk of having their freedom of religion suspended.[11] There have been many reports of Sikhs’ turbans being taken away,[12] and Sikhs being forced to eat non-vegetarian food that does not comply with many Sikhs’ deeply held religious belief.[13] This crackdown on undocumented Indians is reportedly an unofficial, internal policy based on a widespread but unsubstantiated fear that the same networks bringing Punjabi Sikhs to the border could be appropriated by terrorists.[14] Although there are no confirmed cases of terrorists using these networks to cross the southern border, a Customs and Border Protection employee said that the policy reflects a misguided belief that “people from the region become national security concerns, whether from Bangladesh, India proper, or the Punjab.”[15] U.S. officials are skeptical of the asylum claims of Punjabi Sikhs, perceiving them as solely economic migrants, due to a lack of awareness of Punjab’s past or current political climate.[16]

Different populations have been racialized, targeted, and deemed “illegal aliens” over the course of the United States’ immigration history. Simultaneously, the “threat of the morally suspect foreigner” has consistently influenced U.S. immigration policy.[17] The “terrorist” rhetoric used to describe South Asians is certainly a product of the post-September 11 climate, but it is also rooted in a longer history of vilification and marginalization of South Asians in general, and Sikhs in particular, that stretches back to the late 1800s, when white Americans feared that the “tide of the turbans” would engulf the West Coast of the United States.[18]

This essay examines two points in American history during which the United States effectively perceived Sikhs as terrorists even while they sought freedom from oppressive regimes, first British and then Indian. Although Sikh immigrants resided on U.S. soil, the United States’ alliances with the colonizing British government and the successor Indian government contributed to the criminalization of Sikh immigrants who were involved in political struggles against those entities. This history reveals how Sikhs have been caught in the nexus of criminal law and immigration law[19] for over a century.[20] Awareness of this history, in turn, allows us to contextualize the current immigration issues facing Sikhs within the broader landscape of Sikh American subjugation.

I. New Arrivals in America

Sikhs were the first group of South Asians to migrate to North America in the 1800s, and their early migration was concentrated on the West Coast.[21] The similarities between their original homeland of Punjab and the new land of California, in particular—in terms of geography, farming opportunities, and agricultural products/markets—attracted Sikh migrants to the area.[22]

The first migrant Sikhs were young or middle-aged males who initially saw themselves coming to the new land to gain financial success and then return home to Punjab.[23] With their turbans and beards, some Sikh men stood out among the arriving immigrants because they maintained their five articles of faith: kesh (unshorn hair), kanga (small comb), kara (steel bracelet), kirpan (small dagger/sword), and kachera (soldier-shorts).[24] Other Sikh men were barefaced or had trimmed mustaches, wearing Western hats to cover their short hair.[25] Regardless, early newspaper accounts of the arriving Sikhs described their physical appearance and vegetarian customs as strange and threatening.[26] They showed images of dark men in turbans and full beards, exoticized with flowing robes, and charming cobras with woodwind instruments.[27] They also described the arrival of Punjabi Sikhs as the “Hindoo Invasion”[28] and “The Tide of Turbans,”[29] the onslaught of a people unassimilable into American society.

It is no surprise then that Sikhs faced discrimination in all realms of public life: they were charged higher rent than whites for substandard housing, had the fewest opportunities for work, and reportedly received the lowest wages of all Asian immigrant groups.[30]

Early Sikh immigrants often worked as agricultural laborers, railroad workers, and lumber mill workers.[31] The most commonly-voiced complaint by white Americans against the arrival of Sikh immigrants was the economic threat to mill jobs and wages. Many white Americans believed that Sikh laborers were willing to work for lower wages and, therefore, were taking their jobs.[32] Instead, it was the industrialist bosses who exploited Sikh workers to bust unions in the lumber mills by replacing white workers with immigrants.[33] Another common stereotype was that Sikh workers did not contribute to society because they spent little, lived very frugally, and saved much of their pay to send to family in India.[34]

Anti-Asian groups in the United States and Canada responded to the influx of Sikh immigrants by targeting Sikhs, in addition to other Asian Americans against whom they had already been mobilizing. A Japanese and Korean Exclusion League, formed in 1905 in both San Francisco and Vancouver by white labor union leaders, was renamed the Asiatic Exclusion League by 1907, in order to include South Asians among the groups it protested.[35] Beginning that same year, a series of race riots against Sikh immigrants occurred along the West Coast.[36] The first took place in Bellingham, Washington, and was soon followed by others in Seattle and Everett, Washington, Vancouver, British Columbia, and parts of California.[37]

It was not just anti-Asian groups and labor unions that targeted Sikhs. The U.S. government also disproportionately policed Sikh migrants, further aggravating their experience of isolation and discrimination.[38] For example, beginning in 1909, immigration officials in San Francisco used a “likely to become a public charge” clause to exclude a large number of South Asians seeking entry. They argued that “racial prejudice against Indians was [so] great that they would have difficulty finding employment” and therefore were likely to become public charges.[39] This led to a steep decline in the number of South Asian immigrants entering the United States.[40] Despite this substantial decline in South Asian immigration, a U.S. immigration commission issued a report in 1910 on South Asian immigrants, describing them as “the least desirable race of immigrants thus far admitted to the United States” and “unassimilable.”[41] In 1912, U.S. immigration officials even pressured steamship companies to stop selling tickets to South Asian laborers who intended to travel to the West Coast.[42]

Racist xenophobia against Sikh immigrants was particularly extreme in California, where the majority of Sikh immigrants in the United States lived.[43] Among the Asian immigrant groups arriving in California, Sikhs faced disproportionate abuse; the racial slur “ragheads”[44] was often hurled against them and is still used today. White laborers felt threatened because Sikh laborers in California organized themselves in a singular unit, forming communal living and dining arrangements.[45] This resulted in the development of Sikh agricultural and economic cooperatives that allowed them to pool their economic resources for long-term investment, like the purchase of agricultural land.[46] In 1913, California codified its xenophobia in the Anti-Alien Land Act, which forbade all “aliens” ineligible for citizenship from leasing or owning agricultural land.[47] This had a profound impact on the Sikh community in California.[48]

II. Still A Colonized People

Although many Sikh immigrants attempted to appeal the denial of their right to own property in the United States through British diplomatic channels,[49] British officials were indifferent to the requests and complaints of these British subjects.[50] Some South Asian immigrants, like anti-colonialist Har Dayal,[51] recognized that efforts to appeal their rights were futile: “If the British government of India treated the Indians like slaves in their own country, why… should they expect British help to end their humiliation in America?”[52] Indeed, British officials exploited anti-Asian sentiment to encourage U.S. immigration officials to deport anti-colonialists back to India, where they would be prosecuted for sedition.[53]

Sikhs began to link the racial discrimination that they faced in North America to their status as British colonial subjects.[54] To many, it became clear that, as long as India remained under British control, Indians would never be treated as proper British subjects, either by Americans or by the British.[55] The racism Sikhs faced galvanized them to organize to expel the British from their homeland.[56] Led in part by Sikh mill worker, Sohan Singh Bhakna, a group of South Asian anti-colonialists seized the opportunity provided by the Anti-Alien Land Act to mobilize Sikh immigrants along the West Coast into the Hindustan Ghadr Party.[57] The Ghadr Party[58] emerged in Astoria, Oregon,[59] and had its headquarters in San Francisco, California.[60] Its “goal was armed mutiny against the British Raj in India,” and Sikh immigrants embraced the Ghadr Party as a means “to end the oppression to which they were subjected in India and the abuse they experienced in the United States.”[61]

In 1913, Ghadrites (members of the Ghadr Party) established a weekly press in San Francisco, publishing literature in numerous languages, including Urdu, Punjabi, and Hindi.[62] They distributed nationalist, anti-colonialist literature all over the West Coast, and even reached India and sympathizers in other countries.[63] In it, they proclaimed that the Ghadr Party had declared “open warfare against British rule in India” in order to achieve a free and sovereign republic.[64]

Ghadr literature, in turn, generated a “militant emancipatory politics” among Sikhs, such that “[t]o truly be a Sikh in the era of British rule is to cultivate and carry out a will to fight towards its overthrow.”[65] It invoked Sikh history to encourage its membership to “emulate the feats of courage and sacrifice” of well-known Sikhs from prior centuries and to “forge a relation of continuity with them” by exhibiting their same virtues in the anti-colonialist struggle of the day.[66] Within its first year of existence, the Ghadr Party protested British rule across the globe.[67] Still, it was not enough to guarantee equal treatment for Sikhs under the law, British or American.

III. Surveillance of Sikhs in America

Throughout the early 1900s, British police stationed in the United States surveilled the activities of South Asians arriving in the country whom they perceived as “Indian extremists” apt to foment rebellion against the British Empire.[68] This would the first but not the last time Sikhs were deemed extremists and surveilled.[69]

This surveillance forced South Asians to grapple with the U.S. government’s inconsistencies. On the one hand, Americans had expelled the British from their own lands during the American Revolution, and U.S. officials claimed to be anti-imperialist.[70] On the other hand, motivated by racism and nationalism, the U.S. government allowed the British “to extend their imperialist influence over Indians within America via surveillance.”[71]

Har Dayal—like many other Ghadr leaders[72]—was subjected to British surveillance, after he became involved in the Ghadr Movement in 1913.[73] It began when British agents attended his speeches and lectures around the country.[74] Later, when the British Ambassador asked the U.S. State Department to take action to prevent the Ghadr Movement’s seditious speech, U.S. immigration officials too began to attend Har Dayal’s lectures.[75] In early 1914, U.S. immigration officials arrested Har Dayal and deemed him an “undesirable alien,”[76] so he fled the United States for Germany.[77] There, he garnered support from Indian and German students and collected funds for anti-colonialist efforts.[78] And even in his absence, the Ghadr party he helped to found continued to grow.[79]

In 1914, the ship, Komagata Maru, sailed directly from India to Canada to challenge Canada’s Continuous Journey Regulation.[80] Under this regulation, Canadian immigration officers could “block the entry of anyone who entered Canada other than by a continuous journey from their home country.”[81] The Komagata Maru’s 376 Punjabi—mostly Sikh—passengers were not allowed to disembark in Vancouver and were sent back to India.[82] There, many faced death or imprisonment.[83] This incident angered Sikhs across the Pacific West and encouraged several thousand Ghadr supporters leaving North America for India to join the burgeoning independence movement.[84] Independence did not come without cost though, as many Ghadrites were sentenced to death, imprisoned, and confined to their villages, and an overwhelming number of those hanged for the Ghadr interventions were army mutineers who had joined the independence movement.[85] By the middle of 1915, the British had managed to deplete the resources of the Ghadrites in India.[86]

Still, the Sikh faction of the Ghadr Party continued to grow in the United States, under the leadership of Bhagwan Singh.[87] Bhagwan Singh fled India in 1909, when his nationalist activities drew the attention of the colonial government.[88] He arrived in San Francisco in 1914 and immediately joined the Ghadr party.[89] But British and American surveillance of Bhagwan Singh, like that of Har Dayal,[90] made him and other Ghadrites targets of criminal trials in Lahore and San Francisco.[91]

Bhagwan Singh was arrested in 1916 and tried the next year as part of the famous Hindu-German conspiracy trial in San Francisco.[92] The U.S. Justice Department indicted Singh and dozens of Indians for violating neutrality laws.[93] Prosecutors relied on evidence that U.S. and British officials had collected through years of surveillance, and summoned 150 witnesses from India, Singapore, Shanghai, and Bangkok to testify.[94] At the time, this was the costliest trial in U.S. history.[95] In the end, the court found all the Indian defendants guilty of violating the neutrality laws[96] of the United States.[97] The headline of the New York Tribune article reporting on the trial read: “Hindu pawns lost in Kaiser’s Game of Empire.”[98] This case established precedent that the concepts of “aliens” and “radicals” could be linked to rationalize the exclusion and deportation of Sikhs, as well as other immigrants.[99]

IV. Fighting for Sovereignty at Home

Sikhs’ long history of political engagement is not limited to members of the diaspora outside the nation-states now known as India and Pakistan; it also includes activism at home.[100] Towards the end of the British colonial rule, Sikhs in India mobilized for a linguistically, politically, and religiously Sikh-majority state.[101] To quell this self-determination movement, Indian nationalist leaders assured Sikhs that they would be given special consideration within the new Indian nation-state.[102] Not only was this promise not realized, but Article 25 in the final Constitution[103] classified Sikhs as Hindus, cementing the Indian Constitution’s failure to acknowledge Sikhism as a separate, unique religion.[104]

Still, Sikhs continued to fight for their linguistic, political, and religious rights. In 1973, the Shiromani Akali Dal Party, which purported to represent the needs of all Sikhs, adopted the Anandpur Sahib Resolution, a formal and comprehensive charter of Sikh demands “to safeguard the fundamental rights of the religious and linguistic minorities.”[105] The Indian government viewed the Resolution as a secessionist document, and Prime Minister Indira Gandhi—who saw herself as the savior of India’s unity—viewed Sikhs as separatists who threatened India’s safety.[106] Seeing no support or respect from the Indian government, Sikhs mobilized, largely in civil disobedience, to seek increased autonomy.[107]

The tension between Sikhs and the Indian government only escalated over the years, culminating in a massacre of Sikhs by the Indian government during the first week of June 1984.[108] Under the pretense of drawing out Sikh separatists who were within the complex of the Darbar Sahib (“Golden Temple”)—the center of Sikh spiritual and political authority—Prime Minister Indira Gandhi ordered troops to attack the sacred site on a Sikh holiday.[109] Government troops killed hundreds, possibly thousands, of Sikhs who had traveled to the Golden Temple for pilgrimage, and killed many more at Sikh sites across Punjab, hundreds of miles from the purportedly imminent threat at the Golden Temple.[110] In October of that same year, two of Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her in retaliation for the attack on Punjab. Subsequently, an anti-Sikh genocide was unleashed across India in which thousands of Sikhs were killed.[111]

During the ensuing “Decade of Disappearances” from 1984 to 1995, security forces of the Indian government “disappeared” or killed thousands of Sikhs, casting their self-determination movement for a homeland, Khalistan, as terrorism.[112] To destroy evidence of these extrajudicial killings, government forces disposed of the bodies secretly, usually through mass cremations.[113] These targeted efforts were part of counterinsurgency operations by the Indian government to suppress the Sikh self-determination movement, and special counterinsurgency laws abetted this behavior.[114] In addition to the disappearances and extrajudicial executions, these operations led to arbitrary detention and torture[115] of Sikh civilians and militants.[116] With de facto impunity, the perpetrators have remained in power and have not been held accountable for their actions.[117] Indeed, security forces in India continue to commit human rights abuses against Sikhs without redress.[118]

The Khalistan movement and suppression of it was not confined to the borders of Punjab. Mobilization by the main separatist groups and their factions living abroad[119] led to further surveillance of Sikh activists across North America, now by Indian intelligence operatives.[120] Eerily similar to surveillance operations by the British in the decades before India achieved independence, Indian officials in the 1980s sought to infiltrate and discredit the Sikh separatist movement abroad as it gained momentum in the diaspora.[121]

V. Immigration Consequences for Sikh Separatists

Alleged connections to Sikh separatists in India have profound immigration consequences for asylum seekers in the United States.[122] In 2004, the U.S. Court of Appeals for the Third Circuit found a Sikh asylum seeker ineligible for relief under U.S. immigration laws because he had provided food and shelter to Sikh separatists in his village in India.[123] The Third Circuit determined that these actions constituted “material support” to terrorists within the meaning of the Immigration and Nationality Act (INA), in violation of federal law.[124] Thus, even though the Sikh plaintiff faced persecution in India based on his religious affiliation and political activism,[125] he was denied asylum because, on occasion, he provided food and arranged tents for gatherings of Sikhs, some of whom were separatists.[126]

In another case nearly ten years later, another Sikh asylum seeker was denied asylum because he too provided meals and shelter to Sikh separatists in India.[127] The petitioner had relied on a previous Sikh’s case, Cheema v. Ashcroft,[128] where the Ninth Circuit noted that a petitioner would be eligible for relief unless, in addition to terrorist activity, there were reasonable grounds to believe that he was a danger to the security of the United States.[129] Unfortunately for the petitioner, this precedent was overruled by an amendment to the INA,[130] which determined that “terrorist activity alone is a sufficient basis for denying relief.”[131] The amendment defined “material support” to include food and shelter, and “terrorist organizations” to include Sikh separatists.[132] Thus, it provides express authority for U.S. officials to curb the admissibility of Sikh asylum seekers. For Sikhs, it creates a paradox: Sikhs suffering political and religious persecution and criminalization in India are precluded from asylum in the United States if they have supported causes intended to prevent them from being persecuted in India in the first place. This paradox would be difficult enough to navigate, but the INA goes even further, criminalizing an essential pillar of Sikh life—langar.

Langar refers to the “free communal kitchen service” shared by Sikhs with all visitors to every gurdwara (Sikh place of worship and education) around the world.[133] After religious services, volunteers cook vegetarian food and serve it all visitors, who sit side-by-side and eat together. In the late 1400s, the first Guru of the Sikhs, Guru Nanak, instituted langar as an essential Sikh practice.[134] It was revolutionary because it rejected the dominant, discriminatory practices that prevented caste-oppressed people from sharing a meal with caste-privileged people, or even eating in their presence.[135] Through langar, Guru Nanak ensured that differences in political, religious, caste, and gender identities did not limit access to the free meal, as he asked all who partook in the shared food to sit together without discrimination. [136] But langar is more than a meal—it is an embodiment of Guru Nanak’s declaration that no one is superior or inferior.[137] It represents Sikh ethics of equality, community, and compassion.

Langar is also served beyond the halls of the gurdwara, often on the streets to ensure that it reaches those who experience food insecurity. Just as in the gurdwara, the langar is made by volunteers and funded entirely by donations.[138] Preparing and serving langar is considered seva (selfless service), which is a mandatory part of Sikh practice.[139] Men, women, and children of all ages participate in the service of langar, and no questions are asked about the recipients of the langar.[140] It is this Sikh practice of providing food to everyone, even “terrorists,” that is now a basis for the criminalization and deportation of Sikhs in the United States.[141]

VI. Sikhs in America Today

Present-day Punjab is suffering from an economic collapse, environmental degradation, a major drug epidemic, and decades of political violence carried out with impunity.[142] Farmers in rural villages make up over half of Punjab’s workforce.[143] But Punjab’s agricultural sector—“the linchpin of its economy”—is failing.[144] Economic collapse has triggered an epidemic of farmer suicides[145] driven by poverty and debt.[146] It has also coincided with increased immigration of Sikhs to the U.S. and Canada, beginning in the early 2000s.[147]

With the agricultural sector in decline and unemployment a pervasive problem, many young Punjabi men have turned to drugs.[148] Drugs are widely available in Punjab due to its geographic proximity to Afghanistan and Pakistan and its position along major drug trafficking routes.[149] As a result, drug consumption in Punjab is triple the national average.[150] To make matters worse, the legacy of violence committed against Sikhs exacerbates the deplorable economic conditions they face. Political repression of Punjabi Sikhs suspected of being separatists continues to this day and can still result in detention, torture, and disappearance. As a result, many Sikhs have sought asylum[151] in other countries, including the United States, based on religious persecution in India.

Sikh detainees in the Mesa Verde Detention Facility in Bakersfield, California—an immigrant detention facility—told volunteer, Simran Singh, that they sought asylum because they faced religious and political persecution in Punjab.[152] Their families often supported minority, religious parties that the majority aimed to suppress.[153] In seeking asylum in the United States, however, Sikhs have faced new forms of persecution.

Simran Singh began visiting the Mesa Verde Detention Facility in 2016, when he learned that the facility detained Sikh people who did not have access to religious services.[154] Determined to meet detainees’ needs, Simran brought supplies including Punjabi-language newspapers, books, and gutke (prayer books). It took Simran about a month to convince the the facility to let him provide certain religious items, like kare (one of the five articles of faith) and dastaaran (turbans) for Sikhs to wear, and parshaad (sacred offering) for them to eat, because detention facility officials perceived these items as security risks.[155] Sikh detainees had raised significant concerns, in particular, about the food in the detention center. Because the facility provides few vegetarian options, Sikh detainees and other detained groups who adhere to a vegetarian diet are not given much to eat.[156]

Realizing that detained Sikhs across California did not have access to religious necessities, Simran and other Sikh volunteers traveled to the Imperial Regional Detention Facility (Calexico) in November 2017 to hold a divaan (religious service). The volunteer group was told that, among the roughly 600 detainees at Calexico, about half were of Indian descent and most were Sikh. Yet, this was the first time the detention facility held a divan, and it required a lot of organizing with the warden and chaplain. For example, the group brought cloth for turbans but, initially, the facility refused to allow it because of the size of each cloth. Volunteers were restricted to providing only one meter of cloth per detainee but, after lengthy discussions, Simran and the other volunteers gained permission to give each detainee two meters of cloth. By comparison, the average meterage of turbans is between four to six meters, with five meters being the most common.[157]

About half of the Sikhs that Simran met, at multiple California detention centers, were detained while crossing the U.S.-Mexico border. The other half had overstayed their visas and were detained because of their criminal records. Most told Simran that they do not receive updates on the status of their criminal cases, if any, and live in constant fear of deportation.[158] That fear is compounded by the fact that U.S. Immigration and Customs Enforcement (ICE) routinely allows Indian consulate officials to visit nationals of their country in ICE detention.[159] For Sikh detainees, this means visits from government officials of the very country that prompted or influenced them to migrate.[160]

The issues of religious persecution that Simran has seen in immigration detention facilities are echoed in a complaint filed by the American Civil Liberties Union in August 2018, on behalf of Sikh detainees.[161] The complaint concerns the Federal Correctional Institution Medium II (“Victorville”), a high-security, federal prison holding undocumented immigrants.[162] It describes how the prison has inhibited Sikh detainees’ freedom of religion by refusing to provide religious services, ignoring religious dietary needs, severely impeding the possession and wearing of turbans, and denying access to religious texts.[163] Because the facility does not offer meals that comport with Sikhs’ religious obligations, Sikh plaintiffs “have been forced to go hungry to avoid food that violates their religious beliefs.”[164]

Sikhs and other South Asians, in keeping with a long history of activism, organized to protest such violations in ICE detention facilities. In June 2018, over one hundred South Asian asylum seekers at a detention center in Georgia went on a hunger strike to protest the conditions in the facility.[165] Then, in January 2019, nine Sikh men in the El Paso Service Processing Center went on a hunger strike; they were on strike for over seventy days.[166] During that time, they were force-fed, placed in solitary confinement, and seven of the nine men were deported.[167] Still, protest followed protest. In June 2019, South Asian detainees in Otero County Processing Center and LaSalle Deten­tion Facil­i­ty held hunger strikes, and were subjected similarly to violent force-feeding and solitary confinement.[168] As of March 2020, hunger strikes in the LaSalle Deten­tion Facil­i­ty remained ongoing.[169]

As this essay demonstrates, the legal, social, and political issues that Sikhs currently face in the United States are not isolated experiences. They are part of a long history of racialization and criminalization. The Sikh experience in the United States has been colored by vilification, marginalization, surveillance, struggle, and resilience. Sikhs have seen racist and imperialist rationales used to entrench their status as a subordinated group, here and abroad. Nevertheless, they have fought for self-determination and freedom from imperialist and oppressive governments. In the face of discrimination, Sikhs have made their way in the United States and prospered. Perhaps it is the Sikh ethos of chardi kala (relentless optimism) that has allowed this community to thrive in the face of such hurdles.

Henna Kaur Kaushal. J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Online Editor. I dedicate this work to my grandmother, Surinder Kaur. For their guidance and assistance, I thank Kanwalroop Kaur Singh, Mallika Kaur, Leti Volpp, Gurleen Kaur, Damanpreet Pelia, Simran Thind, my family, and my sangat.

[1] Valarie Kaur, Emerging from the Shadow of September 11, 4 Race/Ethnicity: Multidisciplinary Global Contexts 469, 470 (July 2011).

[2] Sugam Pokharel & Catherine E. Shoichet, This 6-Year-Old From India Died in the Arizona Dessert. She Loved Dancing and Dreamed of Meeting Her Dad, CNN (July 13, 2019), https://edition.cnn.com/2019/07/12/asia/us-border-death-indian-girl-family/index.html [https://perma.cc/G6SK-GQYW].

[3] Id.

[4] Id.

[5] Id.

[6] See David Noriega & John Templon, America’s Quiet Crackdown on Indian Immigrants, BuzzFeed News (Jan. 16, 2016), https://www.buzzfeednews.com/article/davidnoriega/americas-quiet-crackdown-on-indian-immigrants#.ou9GryQNv/ [https://perma.cc/RZ6E-4E5Q].

[7] South Asian Migrants in Deten­tion: A Fact­sheet, S. Asian Am. Leading Together (Aug. 6, 2019), https://saalt.org/south-asian-migrants-in-detention/ [https://perma.cc/9M5N-NWCV].

[8] Rozina Ali, A Hunger Strike in ICE Detention, New Yorker (Oct. 29, 2019), https://www.newyorker.com/news/as-told-to/a-hunger-strike-in-ice-detention [https://perma.cc/32RQ-7AHX].

[9] “Punjab” is a region in South Asia spanning across the modern-day nation-states of India and Pakistan, and “Punjabi” refers to a person belonging to this region. “Sikh” refers to a person who follows the religious and spiritual tradition of “Sikhi”, which originated in Punjab in the fifteenth century. Not all Sikhs are Punjabis and not all Punjabis are Sikhs. Because this essay concerns the experiences of Punjabi Sikhs, I refer to this group interchangeably as “Punjabi Sikhs” and “Sikhs.”

[10] See Jennifer M. Chacon, Immigration Detention: No Turning Back?, 113 S. Atlantic Q. 621 (2014).

[11] Sarah Parvini, A Growing Number of California Detainees Are Indians Crossing Through Mexico to Seek Asylum, L.A. Times (Aug. 14, 2018), https://www.latimes.com/local/lanow/la-me-indian-immigrants-20180813-story.html [https://perma.cc/Y69H-AAR5].

[12] Press Trust of India, Oregon Sikh Detainees’ Turbans Taken Away, Says Advocacy Group, Hindustan Times (July 16, 2018), https://www.hindustantimes.com/world-news/oregon-sikh-detainees-turbans-taken-away-says-advocacygroup/story-2qdxCNjjc9XaFOVhKzZbEL.html/ [https://perma.cc/X8EH-DWDV].

[13] See Parvini, supra note 11.

[14] Noriega & Templon, supra note 6.

[15] Id.

[16] Id.

[17] Nayan Shah, Stranger Intimacy: Contesting Race, Sexuality and the Law in the North American West 267–68 (2011).

[18] See Jasbir K. Puar, Terrorist Assemblages: Homonationalism in Queer Times 167 (2007).

[19] This “confluence of criminal and immigration law” is known as “crimmigration law.” See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. Univ. L. Rev. 367, 376–77 (2006).

[20] Due to immigration policies from the turn of the twentieth century until the 1960s, the first group migrating to the United States from South Asia were Punjabi Sikh men. Although Punjabi Sikh women bore the burden of raising families and tending to farms and other sources of livelihood back home while their husbands, fathers, and sons migrated to North America, this paper will be focused on the experiences of Punjabi Sikh men from the earliest waves of immigration until the post-9/11 period that continues to this day. See Juan L. Gonzales Jr., Asian Indian Immigration Patterns: The Origins of the Sikh Community in California, 20 Int’l Migration Rev. 40, 46–50 (1986).

[21] Prema Kurien, Shifting U.S. Racial and Ethnic Identities and Sikh American Activism, 4 Russell Sage Found. J. Soc. Sci. 81, 82 (2018).

[22] Gonzales, supra note 20, at 41. Sikhs were familiar with the intensive agricultural techniques required to produce many of the crops indigenous to both Punjab and California at the time. This contributed to their success in the agricultural industry in the United States. See id. at n.2.

[23] Bruce La Brack, Evolution of Sikh Family Form and Values in Rural California: Continuity and Change 1904–1980, 19 J. Comp. Fam. Stud. 287 (1988).

[24] Identity, Sikh Coal., https://www.sikhcoalition.org/about-sikhs/identity/ [https://perma.cc/8UCL-7C79] (last visited June 26, 2020) (emphasis added).

[25] Paul Englesberg, The 1907 Bellingham Riot and Anti-Asian Hostilities in the Pacific Northwest, Walden U. Scholar Works: Richard W. Riley C. Educ. & Leadership Publ’ns 1, 4 (2015).

[26] See id. at 4–6.

[27] Id.

[28] “Hindoo” or “Hindu” was a generic term used to refer to all people of South Asian descent, but it was a misnomer. Eighty-five percent of the South Asian immigrants were Sikh, ten percent were Muslims and only five percent were Hindu. See Gonzales, supra note 20, at 46. Sikhs dominated the migration from South Asia for several reasons: many Sikhs were in the British army and had special privileges to migrate; economic conditions in Punjab had worsened and triggered an out-migration; and Sikh religious networks provided free lodging and free meals to migrants. See also Kurien, supra note 21, at 84–85.

[29] Min Song, Pahkar Singh’s Argument with Asian America: Color and the Structure of Race Formation, in A Part Yet Apart: South Asians in Asian America 79, 82 (Lavina Dhingra Shankar & Rajini Srikanth, eds., 1998).

[30] Ruth Price, The Lives of Agnes Smedley 45 (2005).

[31] Kurien, supra note 21, at 85.

[32] Englesberg, supra note 25, at 3.

[33] See id.

[34] See id.

[35] Kurien, supra note 21, at 86.

[36] Id.

[37] Id.

[38] Shah, supra note 17, at 261.

[39] Seema Sohi, Race, Surveillance, and Indian Anticolonialism in the Transnational Western U.S. Canadian Borderlands, 98 J. Am. Hist. 420, 425 (2011).

[40] Kurien, supra note 21, at 86.

[41] Id.

[42] Id.

[43] Price, supra note 30, at 44.

[44] Id.

[45] Gonzales, supra note 20, at 43.

[46] Id.

[47] Price, supra note 30, at 46.

[48] Song, supra note 29, at 82.

[49] At this time, South Asian immigrants in the United States were considered British subjects because the region that encompassed India was still under British colonial rule. Thus, South Asians looked to the British government to be responsive to their needs. Only after India gained independence in 1947 would they be considered Indian nationals.

[50] Song, supra note 29, at 82.

[51] See Johanna Ogden, Ghadar, Historical Silences, and Notions of Belonging: Early 1900s Punjabis of the

Columbia River, 113 Or. Hist. Q. 164, 169 (2012). Early Ghadrites, like Har Dyal, began their political

activism in the United States with labor activism, where they engaged with and worked alongside Irish

revolutionaries, German, Italian, and Jewish socialists, and other radical labor activists.

[52] Price, supra note 30, at 46.

[53] Sohi, supra note 39, at 423.

[54] Kurien, supra note 21, at 88–90.

[55] Karen Singh Almquist, 2009, “New Era”: The Political Perceptions of the Hindustani Ghadar Party 28 (Apr. 28, 2009) (unpublished M.A. thesis, Cal. State Univ., Sacramento) (on file with the Sacramento State Univ. Library).

[56] Id. at 27.

[57] Price, supra note 30, at 46; see also Ogden, supra note 51, at 187 (“For his role in Ghadar, including leading hundreds back to India to fight, [Sohan Singh] Bhakna spent some twenty years in Indian prisons.”).

[58] Despite the party’s progressionist policies, it is important to note that casteism and sexism still permeated organizing by the Ghadrites. Founding Ghadr member Mangu Ram Mugowalia left the Ghadr Party to organize with Dalit and Bahujan people in Punjab after he experienced casteism from fellow Ghadrites. See Balbir Madhopuri, Building Begumpura, The Indian Express (Sept. 8, 2019), https://indianexpress.com/article/opinion/columns/guru-ravidas-poems-punjabi-begumpura-society-5975930 [https://perma.cc/77U2-93HZ]; see also Kanwalroop Kaur Singh, Queering Colonial Power: Sikh Resistance in the Ghadr Movement, 13 Sikh Formations, 268–90 (2017).

[59] Sohi, supra note 39, at 427.

[60] Price, supra note 30, at 46.

[61] Id.

[62] Ogden, supra note 51, at 187.

[63] See Karl Hoover, The Hindu Conspiracy in California, 1913–1918, 8 German Stud. Rev. 245, 248 (1985).

[64] S.P. Singh, Bhai Bhagwan Singh Gyanee, Sikh Pioneers (2017), https://www.sikhpioneers.org/bhai-bhagwan-singh-gyanee/ [https://perma.cc/ZED9-4D2R].

[65] Parmbir Singh Gill, A Different Kind of Dissidence: The Ghadar Party, Sikh History and the Politics of Anticolonial Mobilization, 10 Sikh Formations 23, 31 (2014).

[66] Id.

[67] This included protests in India, the Philippines, British Columbia, and Panama. Sohi, supra note 40, at 427.

[68] Price, supra note 30, at 42.

[69] See Kurien, supra note 21, at 90.

[70] Almquist, supra note 55, at 33.

[71] Id.

[72] Id.

[73] Id.

[74] Id.

[75] Id.

[76] “Undesirable aliens” are undocumented people whom the United States has the inherent power to exclude and deport. See 8 U.S.C. § 1227 (2012).

[77] Price, supra note 30, at 51.

[78] Hoover, supra note 63, at 251.

[79] Price, supra note 30, at 51.

[80] Kurien, supra note 21, at 86.

[81] Hugh Johnston, Komagata Maru, The Canadian Encyclopedia (May 19, 2016),

https://www.thecanadianencyclopedia.ca/en/article/komagata-maru/ [https://perma.cc/YR7W-72YS].

[82] Kurien, supra note 21, at 86.

[83] Id.

[84] Id.

[85] Mallika Kaur, Faith, Gender, and Activism in the Punjab Conflict: The Wheat Fields Still Whisper 91 n.7 (2019).

[86] Kurien, supra note 21, at 86.

[87] Price, supra note 30, at 55.

[88] Singh, supra note 64.

[89] Id.

[90] See Almquist, supra note 55, at 33.

[91] Ogden, supra note 51, at 164.

[92] See Bhagwan Singh Gyanee Materials, S. Asian Am. Dig. Archive (SAADA), https://www.saada.org/collection/bhagwan-singh-gyanee-materials/ [https://perma.cc/B9SE-SCFV]; United States v. Chakraberty, 244 F. 287 (S.D.N.Y. 1917); United States v. Bopp, 237 F. 283 (N.D. Cal. 1916).

[93] Sohi, supra note 40, at 435.

[94] Id.

[95] Id. at 436.

[96] See U.S. Cr. Code, § 13 (Act Mar. 4, 1909, c. 321, 35 Stat. 1090 [Comp. St. 1916 § 10177]). The U.S. Justice Department claimed that the Indian defendants violated neutrality laws of the United States by engaging in a military expedition against a country with which the United States was at peace: Great Britain. Sohi, supra note 40 at 435; see also Seema Sohi, Echoes of Mutiny: Race, Surveillance, and Indian Anticolonialism in North America 184 (2014). (“The inter-imperial exchange between the US and British governments led to the opening of the Chicago and San Francisco conspiracy trials in 1917, which, like the trials from Lahore to Mandalay, were instrumental in repressing Indian anticolonialism across the globe.”).

[97] Almquist, supra note 55, at 72.

[98] L. J. de Bekker, Hindu Pawns Lost in Kaiser’s Game of Empire, New-York Tribune (Apr. 28, 1918), at 6.

[99] Sohi, supra note 40, at 422. The U.S. House Committee on Immigration and Naturalization convened hearings in the spring of 1914 to discuss “the dangers of Indian anticolonialism, calling for Indian exclusion as a means to restrict political radicalism.” See id. at 420.

[100] Shinder Singh Thandi, The Rise of Sikh Diaspora Advocacy: From Separatist Politics to Human Rights, 41 India

Int’l Centre Q. 52, 55 (2014).

[101] Kurien, supra note 21, at 89.

[102] Id.

[103] India Const. art. 25.

[104] Kurien, supra note 21, at 89. Punjab is a Sikh-majority state, but that does not ensure its autonomy. Since Indian independence, there has been a struggle to keep the Punjabi language alive in the face of Hindi hegemony and a battle over Punjab’s natural water resources, which has channeled water into neighboring states to the detriment of Punjabis. These struggles have exacerbated the discrimination Sikhs in India face.

[105] Harbans Singh, The Encyclopedia of Sikhism, Vol. 1, 133– 41 (1995); see also Khushwant Singh, A History of the Sikhs: Vol. 2: 1839–2004 (2004) (explaining the Anandpur Sahib Resolution and other Akali demands for Sikh rights).

[106] Harbans Singh, The Encyclopedia of Sikhism, Vol. 1, 133–41 (1995).

[107] See generally Gurharpal Singh, Ethnic Conflict in India: A Case-Study of Punjab 96 (2000).

[108] Harbans Singh, supra note 106, at 133–41

[109] Id.

[110] Kaur, supra note 85, at 233–87.

[111] Id.

[112] Frequently Asked Questions, Ensaaf, https://ensaaf.org/faq/#background/ [https://perma.cc/9Z7R-G8CH].

[113] Human Rights Watch, Protecting the Killers: A Policy of Impunity in Punjab, India (2007).

[114] Id.

[115] Id.

[116] Ensaaf, supra note 112.

[117] Human Rights Watch, supra note 113.

[118] Id.

[119] Thandi, supra note 100, at 56.

[120] See Kurien, supra note 21, at 90.

[121] Id.

[122] See Margaret D. Stock, Immigration and Naturalization Law, 39 Int’l Law 429 (2005).

[123] See Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004).

[124] Id. at 294.

[125] Id. at 294–95.

[126] Id. at 299–300.

[127] See Singh v. Holder, 485 F. Appx. 216, 217 (9th Cir. 2012).

[128] 383 F.3d 848 (9th Cir. 2004).

[129] Singh, 485 F. Appx. at 217.

[130] 8 U.S.C. § 1158 (2018).

[131] Singh, 485 F. Appx. at 217.

[132] Id.

[133] Harman Singh, Langar Is the Sikh Tradition of Serving Free Meals, and All Canadians Are Invited, Huffington Post (Oct. 11, 2018), https://www.huffingtonpost.ca/harman-singh/langar-sikh-freemeals_a_23556757/ [https://perma.cc/CJW8-D9G7]; see also The Pluralism Project, Langar: The Communal Meal, Harvard Univ., https://pluralism.org/langar-the-communal-meal [https://perma.cc/EHY2-5PSU].

[134] Harman Singh, supra note 133.

[135] Id.

[136] The Pluralism Project, supra note 133.

[137] Harmeet Shah Singh, Why Are Ordinary Sikhs Serving Langar at Shaheen Bagh?, India Today (Feb. 4, 2020), https://www.indiatoday.in/india/story/why-are-ordinary-sikhs-serving-langar-at-shaheen-bagh-1643256-2020-02-04 [https://perma.cc/CQ7U-RNKN].

[138] Harman Singh, supra note 133.

[139] Id.

[140] The Pluralism Project, supra note 133.

[141] See, e.g., Singh-Kaur, 385 F.3d 293; Singh, 485 F. Appx. 216.

[142] Noriega & Templon, supra note 6.

[143] Kanwalroop Kaur Singh, A Pattern of Farmer Suicides in Punjab: Unearthing the Green Revolution, KALW (Dec. 4, 2018), https://www.kalw.org/post/pattern-farmer-suicides-punjab-unearthing-green-revolution#stream/0 [https://perma.cc/ML68-ULSV].

[144] Noriega & Templon, supra note 6.

[145] See Kenneth R. Weiss, In India, Agriculture’s Green Revolution Dries Up, L.A. Times (July 22, 2012), https://www.latimes.com/world/population/la-fg-population-matters-india-water-20120726-m-html-htmlstory.html [https://perma.cc/6W9Y-C2QD]. 

[146] Kaur Singh, supra note 143.

[147] Noriega & Templon, supra note 6.

[148] Why Has India’s Punjab Fallen Into the Grip of Drug Abuse?, BBC News (Feb. 2, 2017), https://www.bbc.com/news/world-asia-india-38824478 [https://perma.cc/BT25-TUBA].

[149] Id.

[150] Id.

[151] Even Sikhs who have successfully attained legal status in the United States are in a precarious position. Despite assimilationist narratives and the model minority myth, Sikhs are not a monolith and come from different socio-economic backgrounds. See generally, Rosalind S. Chou & Joe R. Feagin, Myth of the Model Minority: Asian Americans Facing Racism (2015). With the Department of Homeland Security’s proposed “public charge” rules, Sikhs who use government services such as nutrition programs and housing assistance may be denied permanent resident status. This is not the first time the “public charge” rule has had a negative impact on Sikhs. See Community Guide on “Public Charge,” S. Asian Am. Leading Together (Nov. 16, 2018), http://saalt.org/community-guide-on-public-charge/ [https://perma.cc/R4JD-NWSD] (“Nearly 472,000 or 10% of the approximately five million South Asians in the U.S. live in poverty. Nearly… 48% of non-citizen Pakistani families and 11% of non-citizen Indian families also receive public benefits.”).

[152] Telephone Interview with Simran Singh, Project Ghar Bahaar (Nov. 23, 2018).

[153] Id.

[154] Id.

[155] Id.

[156] Id.; see also Parvini, supra note 11.

[157] Simran Singh, supra note 152; see also, Kanwalroop Kaur Singh, Fighting for Asylum Seekers Who Look Like Me, The Margins (Feb. 20, 2019), https://aaww.org/fighting-for-asylum-seekers-who-look-like-me/ [https://perma.cc/9SXB-2J5E].

[158] Simran Singh, supra note 152.

[159] See Noriega & Templon, supra note 6.

[160] Id.

[161] Complaint at 1, Teneng v. Trump (C.D. Cal. 2018) (No. 5:18-cv-01609).

[162] Id.

[163] Id. at 4.

[164] Id. at 21.

[165] South Asian Migrants in Deten­tion: A Fact­sheet, supra note 7.

[166] Margaret Brown Vega and Nathan Craig, ‘A New Horror’: Sikh Men Go on Hunger Strike in ICE Custody, The Nation (Mar. 7, 2019) https://www.thenation.com/article/archive/ice-hunger-strike-el-paso/ [https://perma.cc/KN3G-LJDV].

[167] Id.

[168] South Asian Migrants in Deten­tion: A Fact­sheet, supra note 7.

[169] Id.