By Justin Kirschner
It’s hard to imagine the United States and China “joining
hands” on much. The two countries are
often at loggerheads over China’s
currency value, China’s
power projection into the South China Sea, and alleged Chinese hacking of US government
personnel records.
But “joining
hands” is just how China described the US-Sino relationship in fighting
cross-border corruption after the
US repatriated wanted economic fugitive Yang Jinjun ahead of President Xi’s
first state visit to the US. Just days
later, China heralded the return
of another fugitive, Kuang Wan Fang, who was serving a prison term in the
US for financial crimes, but was wanted in China for corruption and bribery
linked to those same crimes that got her thrown behind bars in the US.
China’s rosy assessment not withstanding, it is premature to
say the recent repatriations are a harbinger of a change in US
policy. According to Chinese officials, as of 2014, the
United States is the top destination for Chinese economic fugitives who
sometimes, as in the case of Mr. Yang, live in the US for many years. In fact, up
to forty of the 100 fugitives
China is seeking globally as part of its so-called Sky Net anti-corruption
operation are believed to be living in the United States. Mr. Yang is the first
of the forty to be repatriated. All told, reports say that Beijing
privately gave Washington a list of 150 fugitives it believes to be in the
United States. The
most diplomatically sensitive cases appear only on the private list for fear
that being publicly named will prompt the fugitives to seek asylum and pass
intelligence secrets to their host countries.
The US is the favorite safe-haven for Chinese fugitives in
part because the US immigration system provides ample means for entry. Often, Chinese
officials become “naked,”
sending family and money to the US with a plan to attain a visa and green card
through their new-found family connections. But would-be fugitives need not make such
intricate plans that could take years to execute, require seeing the writing on
the wall before being caught in a Chinese dragnet, and could itself raise
corruption suspicions. There is a much easier way in: the
EB-5 Immigrant Investor program is a “relative breeze” through which legal
US status may be obtained. Corrupt Chinese
businessmen and officials can essentially buy themselves a green card with
$500,000 and a promise—that
often goes unfulfilled—to invest the money in ways that will create jobs in
the US. How many newly created jobs are required to receive a green card? Just
ten. In 2014, over 90% of the 10,000 EB-5 visas went
to Chinese immigrants. Corrupt
Chinese officials exploit the EB-5 process because red flags about an
applicant’s source of wealth are
often ignored in the flood of applications, and follow-up oversight of
their activities in the US is weak.
Once in the United States, a combination of US laws, a lack of a US-China
extradition treaty, and concern for the condition of repatriated fugitives
means that repatriation is rare. A
Chinese national can be sent home only through either a narrow
extradition statute that requires committing a violent crime against a US
citizen on foreign soil, and extradition approval by the Secretary of State; or
through deportation
proceedings. Deportation proceedings
will only be initiated when a fugitive violates immigration laws; if a fugitive
committed certain crimes in the US; or if the Secretary of State believes an
alien’s presence has negative foreign policy consequences. Though the potential for deportation
proceedings appears to be broad—especially through the Secretary of State’s
foreign policy prerogative—initiation of proceedings does not guarantee
deportation. Judges
have often declined to deport over concerns for how fugitives will be
treated in China’s criminal justice system. And furthermore, if all else fails,
some
fugitives have applied for political asylum, claiming that upon return to
China, they will face persecution and other human rights abuses.
Despite both countries’ interest in ridding its society of
corrupt Chinese officials, cooperation has been scant. But there is an opening
here that the US could exploit to its advantage. Case-by-case repatriations could serve US
interests, including promotion of human rights. In the overall US-China relationship, security
and economics are paramount. For the US, human rights is down the list, but not
too far down; and for China, repatriation of fugitives is down the list, but
not too far down. The US could agree to accelerate repatriation, focusing on
fugitives that are a priority to China and those engaged
in shady financial dealings in the US. The key is to maintain the
case-by-case nature of repatriation decisions.
This gives the US the flexibility to consider all of its national
interests—ending China’s human rights abuses, gaining valuable intelligence
from fugitives, and eliciting security and economic concession from China—when deciding
on Chinese repatriation petitions.
As of now, without more evidence, these recent repatriations
stand only as gestures of good will to a visiting head of state. Only if they continue will they show a change
in US policy.
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