Guest Post: Minyao Wang, A Partial Defense of a Travel Ban on Chinese Communist Party Members and Their Families
Minyao Wang, A Partial Defense of a Travel Ban on Chinese Communist Party Members and Their Families
The New York Times reported earlier this week that the Trump administration is considering a sweeping travel ban on members of the Chinese Communist Party (“CCP”) and their family members. That step would prohibit as many as 270 million people from coming to the United States and would further worsen the already tense relationship between Washington and Beijing. While the administration has had a history of not following through on some of its most provocative proposals, it is worthwhile to pause and consider what such a ban, if enacted, would mean.
As a statutory matter, the President would, according to media reports, invoke section 212(f) of the Immigration and Nationality Act, which authorizes him to exclude foreign nationals if their admission “would be detrimental to the interests of the United States.” The Supreme Court made it clear in Trump v. Hawaii that that President is afforded wide latitude when exercising his judgments under that section. Given the myriad foreign policy issues presented by China, a judicial challenge to any travel restrictions imposed on CCP members is likely to fail.
It is also important to remember that existing immigration laws already contain a bar against CCP members seeking to permanently immigrate to the United States, but the bar does not apply to students, tourists or H1b temporary workers. INA Section 212(a)(3)(D) prohibits the admission of “[a]ny immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party.” The U.S. Consulate in Guangzhou, where all mainland Chinese immigration cases are processed, has taken the position that the bar extends beyond the CCP itself to affiliates like the Communist Youth League or the All-China Federation of Trade Unions. While some commentators have suggested that the proposed travel bar is not workable because the U.S. Government does not have access to the CCP’s membership rolls, the Guangzhou consular staff possesses the cultural and institutional knowledge to detect concealment of CCP membership.
The law also contains important exceptions. For example, a person who resigned his or her party membership at least five years ago is not subject to the ban as long as he or she “is not a threat to the security of the United States.” Many savvy CCP members who plan to immigrate to the United States resign their membership in time to satisfy the five-year requirement. The law also excuses “involuntary” membership, but that has limited utility since joining the CCP often entails a complicated application process. In deference to a Supreme Court decision (Rowoldt v. Perfetto, 355 U.S. 115 (1957)), the U.S. further excuses membership that is “not meaningful.” Finally, a CCP member who has a family member who is a U.S. citizen can apply for a discretionary waiver. The upshot is that for rank-and-file CCP members, their party membership is likely to cause delay in the immigration process, but is almost never by itself disqualifying.
The exclusion of Communist Party members from this country has had a long history. Congress first enacted the ban in 1952, at the start of the Cold War with the Soviet Union. The original ban applied to all foreign nationals, immigrants and non-immigrants alike. Congress gradually recognized that it made little sense to ban temporary visitors on the basis of ideology. In 1979, Congress passed the McGovern Amendment that in effect gave a blanket waiver to all non-immigrant applicants unless the applicant was certified by the Secretary of State to pose a threat to “the security interests of the United States.” When Congress rewrote the INA in 1990 (the year after the Berlin Wall fell), it formally repealed the ban for non-immigrants, but, after significant debate, retained it for immigrants.
Fast forward to 2020. It is beyond doubt that the recent behavior of the CCP has alienated much of the world. The ideology and practices of the CCP are incompatible with what the United States and indeed most of the world stand for. When somebody seeks to join the American national community by applying for an immigrant visa, that person is asking the United States to provide a multigenerational commitment to him or her. We as a country are entitled to consider carefully whom should be part of us. America is unique in that we are not defined by blood line or last name. We are bound together by our abiding faith in and adherence to democratic values. It should therefore not be controversial to exclude those who subscribe to the CCP’s ideology from our national community. Toward that end, the existing prohibition on the immigration of CCP members should be strengthened, whether through a section 212(f) proclamation or Congressional amendments to the INA, to close the existing loopholes. But the case of transient Chinese visitors presents an entirely different situation. It does not serve our economic or foreign policy interests to refuse revenues from tourists or tuition-paying international students simply because they may believe in the CCP. And the principles of fairness do not support their exclusion either. The reality is most CCP members have no voice whatsoever in the party’s decision-making. It is after all a dictatorship.
KJ