China’s Failure to Repatriate U.S. Deportees Jeopardizes 10-Year Visitor Visa Deal

return to senderThere is a backlog of nearly 39,000 Chinese nationals who have been ordered deported by the U.S. but who have not been removed because China is dragging its feet in issuing travel documents, according to a story by Mark Hosenball and Tim Reid of Reuters.

One aspect of the story that hasn’t been reported on is that Beijing’s lack of cooperation with repatriations could make Washington rethink its recent agreement to issue 10-year visas to Chinese business visitors and tourists.

The deportation backlog exists despite a March 2015 memorandum of understanding between the U.S. and Chinese governments, in which the Chinese government agreed to speed identification of and issuance of travel documents to its nationals with outstanding deportation orders. Beijing explains delays by saying it can be difficult to verify citizenship, a process that might require visits to distant villages and towns.

Pursuant to the new memorandum of understanding, two Chinese officials traveled to the U.S. to interview about 70 individuals ordered deported, including many with criminal convictions in the United States. China promised their cases would be resolved quickly. But according to Reuters,

not for the first time, China failed to provide the necessary travel documents, and three months later not one of those arrested has been deported, and many have been released from custody.

One U.S. official speculated about the reason for the holdup: “They do not want these people back.”

Sept. 25, 2015 Update: James T. Areddy reports for the Wall Street Journal that 14 Chinese with final orders of removal may have been repatriated on two Gulfstream IV jet flights during the prior week.

The issue, which is likely to come up during a state visit to Washington later this month by Chinese President Xi Jinping, is a strain on the U.S.-China relationship.

There are significant detention costs for the U.S. Also, under the Supreme Court’s 2001 Zadvydas v. Davis decision, it is unconstitutional for the government to detain an individual with an outstanding deportation order for more than six months unless deportation is likely in the foreseeable future, the individual is a flight risk, or the individual is a danger to society.

The Deportation Backlog Puts 10-Year Visitor Visas at Risk

With great fanfare, the U.S. and China mutually agreed to increase business and tourist visa validity to 10 years. President Obama announced the deal on November 10, 2014, at the 2014 APEC summit in Beijing.

President Obama touted the agreement as good for U.S. trade and business: “the United States hopes to welcome a growing share of eligible Chinese travelers, inject billions (of dollars) into the U.S. economy, and create enough demand to support hundreds of thousands of additional U.S. jobs,” the White House said in a press release. In 2013, 1.8 million Chinese travelers visited the U.S., contributing $21.1 billion to the U.S. economy and supporting more than 109,000 American jobs, according to the press release.

The agreement took years to negotiate. One stumbling block, explained in 2012 Congressional testimony by then Assistant Secretary of Statue for Visas David T. Donahue, was:

it has been the Administration’s position that the Chinese government also must make significant progress in issuing travel documentation to thousands of Chinese nationals in the United States under final deportation orders.

The agreement appears to have been reached based on a calculation that the economic upside outweighs concerns about repatriation.

But a federal statute allows the U.S. government to set aside the deal if China doesn’t accept repatriation of its nationals. Section 243(d) of the Immigration and Nationality Act provides:

On being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the Attorney General asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals,
and residents of that country until the Attorney General notifies the Secretary that the country has accepted the alien.

Republican Senators Charles Grassley, Chair of the Judiciary Committee, and Jeff Sessions, Chair of the Immigration Subcommittee, have written to the Obama administration, asking what steps have been taken to ensure China’s cooperation with removal efforts and asking whether visa sanctions under section 243(d) are appropriate.

At an April 28, 2015, Judiciary Committee meeting, Sessions asked Secretary of Homeland Security Jeh Johnson (at about 2:55 into the video):

Q: We’ve been dealing with China … as our number one problem …. The memorandum of understanding with China seems to do little to actually fix this problem. It essentially only provides two individuals from the Chinese government to assist with repatriation efforts that involve tens of thousands of Chinese nationals. Congress has provided a mechanism already in law, section 243(d) of the Immigration and Nationality Act, which permits … [the Secretaries of State and Homeland Security] to stop granting visas to citizens and nationals of such countries [that do not cooperate with repatriation].” (2:55)

A: I don’t necessarily believe that we ought to suspend … travel from any of these countries because of this particular issue. I think that this is probably not the best way to go. I have had some very blunt conversations with my Chinese counterparts about this exact issue in Beijing when I was there three weeks ago.

Q: Forgive me if I don’t think you’ll have big progress with China. I hope I’m wrong. It’s been going on for a decade or more. And people sitting in your chair have failed to execute and use the powers they have. All you have to do is tell China, “If you want further immigration to America you’re going to take back these individuals because it costs us a lot of money … to keep them in detention … or we release them on bail and they disappear….”

But section 243(d) has been used as a stick only rarely. In 2001, the State Department U.S. imposed visa restrictions on government and state-owned enterprise personnel from Guyana for its refusal to issue travel documents. And in 2009, the State Department imposed visa restrictions to encourage the de facto Honduran government to negotiate with deposed President Zelaya. What these two cases share in common is that the U.S. had little to lose. In contrast, a senior Immigration and Nationality Service official said in 2002 that “INS wanted to have sanctions against China, but [the Department of] State refused” presumably because of the economic and other diplomatic fallout.

While across-the-board sanctions against Chinese travelers may be unrealistic, reverting from 10-year to 1-year visitor visas may be more likely. This is precisely because issuance of 10-year visitor visas likely increases the risk that visa holders will overstay and become subject to deportation. The risk likely increases because 10-year visa holders aren’t subject to annual interviews or visa applications at U.S. consulates in China; instead, they are only questioned by Customs and Border Patrol when entering the country.

Short of such visa restrictions, the U.S. Citizenship and Immigration Service has already taken small steps to punish China for its lack of cooperation. First, Chinese nationals are excluded from the Guam visa waiver program. The Territory of Guam is an island in the western Pacific and is an organized, unincorporated insular area of the U.S. Next door is the Commonwealth of Northern Marianas Islands (CNMI), a commonwealth in political union with the U.S. The immigration laws of the U.S. apply in both Guam and CNMI. Chinese are already eligible for CNMI’s visa waiver program, but for security reasons, including cooperation in repatriation, were not included in the Guam program, established in 2009. Second, Chinese nationals are ineligible for H-2 visas for temporary agricultural or non-agricultural work in the U.S. because those visas may only be granted to nationals of countries that cooperate in repatriation. 8 C.F.R. 214.2(h)(5)(i)(F).

China Seeking a Quid Pro Quo?

Meanwhile, China is pushing the U.S. on a different immigration issue: the return of Chinese citizens targeted by Operation Fox Hunt, who are fugitives from corruption investigations at home.

Officials in the U.S. put distance between the two issues, saying there will be no ‘quid pro quo’ agreement to provide Operation Fox Hunt suspects in exchange for cooperation on repatriating individuals ordered deported. But U.S. officials acknowledge that there are parallel discussion on the matters.

China, however, sees the two subjects as tied. In a statement, China’s Foreign Ministry said: “China believes that there should be no double standards when it comes to the issue of handling the repatriation of illegal immigrants,” urging “support for China’s efforts to fight corruption.”

U.S. officials say they are not averse to cooperation on Operation Fox Hunt, but that despite requests, Beijing has failed to produce the kind of evidence of criminality needed under American law to support deportation.

There is no extradition treaty between the U.S. and China, and Western governments have long been reluctant to hand over suspects because of a lack of transparency and due process in China’s judicial system. In the past, Chinese government officials convicted of corruption have sometimes been sentenced to death.

Cooperation on Repatriation

As Senator Sessions said, U.S. complaints about China’s lack of cooperation on repatriation are nothing new. For example:

Sept. 2002: An Immigration and Naturalization Service Office of Inspector General report calls China “uncooperative” in timely issuance of travel documents.

May 2004: A General Accounting Office report notes China’s “slow process” for issuance of travel documents.

Oct. 2008: At a Repatriation Working Group meeting between the U.S. and China, the U.S. notes that problems exist in the Chinese government’s speed in confirming the identity of and issuing travel documents to Chinese nationals ordered deported from the U.S.

May 2011: Testifying before Congress, an Immigration and Customs Enforcement official states that China is “very slow” to issue travel documents, taking an average of 134 days.

July 2014: At the Sixth Round of the U.S.-China Strategic and Economic Dialogue, the U.S. and China co-chairs of the Joint Liaison Group on Law Enforcement agree that the Repatriation and Fugitive Working Groups should “deepen their interactive cooperation” and hold quarterly meetings.

Nov. 2014: At the APEC summit in Beijing, the White House released a fact sheet stating there was an agreement with China to “enhanc[e] coordination and cooperation on repatriation and fugitive issues.”

Mar. 2015: A memorandum of understanding is signed in Beijing between Sarah Saldana, director of Immigration and Customs Enforcement (ICE), and Zheng Baigang, head of the Ministry of Public Security’s Bureau of Exit and Entry Administration, in which China agrees to facilitate issuance of travel documents to Chinese nationals ordered deported form the U.S.

Apr. 2015: U.S. Secretary of Homeland Security Jeh Johnson and Minister of Public Security Guo Shengkun meet in Beijing, China’s public security minister affirmed their commitment to work closely, along with other relevant law enforcement agencies, to improve information sharing on repatriation and fugitive cases. The Ministry of Public Security “intends to closely cooperate to verify expeditiously the identities of illegal immigrants and facilitate their return.”

It remains to be seen whether progress will be made on repatriation during the upcoming Xi-Obama summit. It also remains to be seen whether the Obama administration or the next administration will be willing to impose limited 243(d) visa sanctions on Chinese nationals.

8 comments

  1. I don’t understand why the US can’t just put the Chinese nationals on a plane back to China?

    I thought that everyone entering the USA has their fingerprints taken, so at point of entry there should be records matching the fingerprints to an entry visa /passport of some sort. Is that not enough evidence to send them back to where they came from?

        1. Leon,

          U.S. law would treat the Kiwis’ and the Chinese deportees’ situations differently.

          If deportation proceedings are initiated at the time of the noncitizen’s arrival in the U.S., the noncitizen generally will be removed to the country in which the noncitizen boarded the aircraft on which he or she arrived in the U.S. INA 241(b)(1)(A). The airlines will be liable for a fine and the cost of returning the noncitizen unless the airlines used reasonable diligence to check that the noncitizen had a valid passport and visa (unless these requirements are inapplicable under the law). INA 273. China’s treatment of the Kiwis flying Istanbul to Urumqi was similar: they were deported to Istanbul (not New Zealand) at the expense of the airlines, which then sought reimbursement from the Kiwis.

          On the other hand, if the noncitizen has entered the U.S. with a valid passport and visa but then becomes subject to deportation (e.g., overstays the visa; commits certain crimes; violates the terms of the visa, such as working on a visitor’s visa), the airlines bears no responsibility. The noncitizen will generally be deported to his or her country of nationality. INA 241(b)(2)(D). If a passport or other travel document allowing admission to that country is unavailable, the deportation normally can’t take place.

    1. Yes. If the U.S. State Department alters the reciprocity information for visas issued to nationals of a certain country (fees, number of entries, and/or validity period), previously issued visas are unaffected.

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