U.S. Retaliates Against China for Failure to Repatriate Deportees

The U.S. has imposed visa sanctions on certain Chinese nationals in retaliation for the Chinese government’s failure to repatriate deportees from the U.S.

By 2017, there was a backlog of nearly 40,800 Chinese nationals who had been ordered deported by the U.S. but who had not been removed because China was dragging its feet in issuing travel documents, according to a Department of Homeland Security report.

Now, the U.S. Embassy in Beijing has confirmed that visa sanctions have gone into effect. Consular officers have begun distributing notices “discontinuing” visa issuance, such as this one:

[W]e are unable to issue a visa to you today, because issuance of your visa has been temporarily discontinued under Section 243(d) of the Immigration and Nationality Act. The Secretary of Homeland Security has notified the Secretary of State that the People’s Republic of China (PRC) denies or unreasonably delays accepting the return of its citizens, subjects, nationals or residents subject to final orders of removal from the United States, and the Secretary of State has ordered consular officers in the PRC to discontinue granting B 1, B2, B 1 /B2, F 1, F2, Jl, and J2 for PRC officials who are holding the rank of deputy director (or equivalent) and above who are employed by the PRC’s National Immigration Administration (including the Exit and Entry Bureau) as well as their spouses and children under the age of 21 whether married or unmarried; and officials currently employed by the National Supervisory Commission, Ministry of State Security, and Ministry of Public Security and the spouses and children under 30 of the above officials. Consistent with the Secretary’s order, the issuance of your visa has been suspended. Applicants cannot appeal the suspension and we will not refund the visa application fee.

When the Secretary of Homeland Security notifies the Secretary of State that the PRC has complied with U.S. requests relating to acceptance of its national or nationals, the normal issuance of visas will resume. A consular officer will review your application and reassess your eligibility for the visa classification sought at that time, and may contact you as necessary regarding it.

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. According to Reuters, Beijing explained delays by saying it can be difficult to verify citizenship, a process that might require visits to distant villages and towns. One U.S. official speculated that there was another reason for the holdup: “They do not want these people back.”

The issue 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. So by 2017 DHS said it had released more than 1000 Chinese nationals from custody, “many with convictions for violent or other serious crimes.”

Section 243(d) of the Immigration and Nationality Act allows the U.S. to retaliate against countries that fail to repatriate deportees:

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.

The Secretary of State’s “order” imposing visa sanctions has not been made public. But State Department internal rules state that the discontinuation of visa issuance should be made public by flyers posted in the consular section and/or on the post’s website.

Those internal rules also clarify that the statute requires only discontinuation of visa issuance, not of visa refusals. So if an applicant is ineligible for the visa for some reason, the officer should refuse it.

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 from 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.”

Oct. 2017: A DHS report complained of China’s “refusal to cooperate with DHS to accept the return of approximately 40,000 PRC nationals who have overstayed or violated their visa or status conditions (and are subject to final orders of removal from the United States). Beijing’s refusal to cooperate forces ICE to release hundreds of PRC nationals, many with convictions for violent crimes, into American communities, jeopardizing public safety and visa integrity.”

In the future, when the visa sanction has been lifted, consular officers should continue adjudicating these applications without requiring payment of a new fee, according to federal regulations.

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