Saturday, July 4, 2020

Guest Post, Minyao Wang:  U.S. Immigration Responses to the Chinese "National Security" Measures in Hong Kong

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Minyao Wang:  U.S. Immigration Responses to the Chinese "National Security" Measures in Hong Kong

The situation in Hong Kong is becoming increasingly dire.  The latest Chinese betrayal came earlier this week when the rubber stamp national legislature, working in complete secrecy, crammed down a so-called national security law on Hong Kong.  The terms of the so-called “law” flouted the commitments China made to the United Kingdom in 1984 when the two countries signed a legally binding treaty for Hong Kong to return to China as a special administrative region; they are also inconsistent with the mini constitution that the Chinese government itself wrote for Hong Kong.  Coming in the middle of a global pandemic that originated in China, this Chinese encroachment provoked rare bipartisan outrage in Washington.  With uncharacteristic speed, Congress has sent a bill to President Trump that would impose severe sanctions on global financial institutions that do business with Chinese officials and companies complicit in the suppression of Hong Kong.  On the immigration front, at least two bipartisan bills have been introduced to permit the emigration of Hong Kong residents.  The Trump administration, given its immigration policy track record, is not necessarily excited about the prospects of presiding over what could become the largest exodus of refugees to the United States since the end of the war in Vietnam.  But given the prevailing sentiments on Capitol Hill, immigration legislation friendly to the people of Hong Kong is likely to be enacted in some form with a veto-proof margin.

The first bill, the Hong Kong Safe Harbor Act, would require the State Department to admit as Priority 2 Refugees persons who have been directly involved in the historic protests that have captivated the entire world since June 2019, including any person who has been arrested, detained or convicted of a crime in connection with the protests.  The designation of Priority 2 means that applicants may be processed within Hong Kong by the US consulate there.  And in an unusual gesture, the proposed law would mandate that the parents of an approved refugee applicant are eligible for refugee admission as well.  The bill would also dispense with the “intent to immigrate” presumption hurdle for protest participants, including journalists who covered the protests, lawyers who provided legal advice to protesters, and medical providers who treated protesters who were injured during clashes with the Hong Kong police.  With that presumption out of the way, it would become much easier for Hong Kong residents who do not qualify for Priority 2 admissions to obtain a non-immigrant visa to enter the United States and submit an application for asylum.

The second bill, the Hong Kong People’s Freedom and Choice Act, is potentially even more significant.  Its preamble language is an unabashed patriotic recitation of Americana.  The bill recalls that the United States “has sheltered, protected and welcomed” mainland Chinese refugees after the Tiananmen Massacre of 1989.  The bill notes that the United States has benefited immensely from the contributions made by earlier waves of refugees from “Fascism, Communism, violent Islamist extremism, and other repressive ideologies, including in the case of Nazi Germany, the Soviet Union and Soviet-controlled Central Europe, Cuba, Vietnam, and Iran.”  Looking ahead to a potential long-term competition with the Chinese Communist Party, the bill notes that “ [a] major asymmetric advantage of the United States . . .is the ability of people from every country in the world, irrespective of their race, ethnicity or religion, to immigrate to the United States and become American citizens.” 

The bill would enact three separate immigration programs to protect the people of Hong Kong.  First, it would provide for immediate Temporary Protected Status for every Hong Kong person who is currently in the United States.  With TPS, a person would be able to remain in the United States for a limited period of time with permission to work.  This step does not require Congressional authorization.  The Trump administration could designate this protection on its own but has not yet done so.  Supporters of the bill note that President George H.W. Bush deferred the departure of all mainland Chinese nationals in the United States immediately after the events in Tiananmen.  Second, the bill would create a special green card category for up to 250,000 Hong Kong families (to be spread evenly over five years).  To be eligible, at least one family member must have a post-secondary degree from the U.S., a graduate degree from anywhere, or own a business with $5 million in assets or 50 employees.  Third, for any person from Hong Kong who manages to legally enter the U.S. over the next five years, the bill would deem him or her a beneficiary of a third employment-based skilled worker category petition and permit an application for adjustment of status (green card) be filed, as long as the applicant certifies that he or she has a fear of political persecution in Hong Kong.  The bill would also waive most of the standard eligibility requirements for adjustment of status.  This program is modeled after the Chinese Student Protection Act of 1992, which was principally drafted by a then junior member of the House named Nancy Pelosi and permitted most Tiananmen era Chinese nationals to remain permanently in the United States.     

The second of the three programs, which targets the best educated and the wealthiest segments of the Hong Kong population, could appeal to the Trump administration.  The administration has consistently advocated for the adoption of a merit-based immigration system in lieu of current law that overwhelmingly favors family ties as the basis to enter the United States.  The specific criteria could be refined further (for example, to take into account an applicant’s job skills and adaptability to living in the United States), but what is in the bill now has the potential for becoming an experiment that would inform future permanent amendments to the Immigration and Nationality Act.

Since the end of the Second World War, the United States has always responded to turmoil in repressive countries by opening its homes and hearts.  There is no reason to act differently this time around.  Indeed, the United Kingdom has already offered British citizenship to three million people from Hong Kong.  If the “special relationship” between Washington and London means anything, it is incumbent upon us to share this moral responsibility to the people of Hong Kong with our closest military and strategic ally.

As President Trump noted recently, “on a rainy night in 1997, British soldiers lowered the Union Flag, and Chinese soldiers raised the Chinese flag in Hong Kong. The people of Hong Kong felt simultaneously proud of their Chinese heritage and their unique Hong Kong identity. The people of Hong Kong hoped that in the years and decades to come, China would increasingly come to resemble its most radiant and dynamic city.”  Central to the handover of Hong Kong was the legally binding Chinese promise that the Hong Kong people would be able to elect their own leaders and run their own affairs without interference from Beijing.  Twenty-three years (by way of comparison, the Berlin Wall lasted 28 years) later, while most of the world basks in democracy, that pledge remains an unfulfillable and distant dream for Hong Kong.  Beijing is adamant about withholding from the people of Hong Kong what they are legally entitled to.  The people of Hong Kong have fought the good fight and they now deserve to live in peace in one of the Western democracies.       

KJ

https://lawprofessors.typepad.com/immigration/2020/07/guest-post-minyao-wang-us-immigration-responses-to-the-chinese-national-security-measures-in-hong-ko.html

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