Colored Revolutions, Umbrellas, and Stormy-Weather Hypocrisy

This post will take approximately 13 minutes to read. It isn’t very complicated, nor does it require any prior knowledge of or experience with U.S. immigration law; it’s just long. Rather than publishing two separate ones, I’ve marked where the second half starts. Thanks in advance for your time!

~ HC 

Introduction

It’s been a while since I’ve published a post. But it’s important to keep in mind that was, after all, the holidays, and much to my detractor’s dismay, I have a family and life outside of work and interests besides enforcement of our immigration laws.

That said, I set out last week, or maybe it was the one before that, or perhaps the one before that—the past few months have run together—to write either about DACA or Senate Bill 386 (eventually, I’m sure I’ll write about both). However, in the dark of night, a few Fridays prior came onto my timeline a tweet by a former lobbyist and Assistant Secretary of State for Democracy, Human Rights, and Labor in the Obama administration turned-Congressman, Tomasz Malinowski about a newer immigration stalking horse; one which had been debated previously, but until approved in the House, a month ago now, had seemingly languished in the wells of both chambers: Temporary Protected Status for the people of Hong Kong, hereafter, “Hongkongers” in the form of the “Hong Kong People’s Freedom and Choice Act of 2020,” the PFCA for short.

It is and always has been my intention to write about immigration rather than myself—even my “About” page was more than I cared to write about me; after all, I’m blogging anonymously for a reason. However, my interest in some subjects, like this one, isn’t limited to the immigration angle but sometimes something to which I have a personal connection. I’m going to try to weave the two issues together here as best I can, but make no promises how the effort will end up or be received.

 

Warning: History Ahead!

To set the stage, Hong Kong island was a British Overseas Territory for 156 years, having initially been ceded to the United Kingdom by the Qing dynasty by the Convention of Chuenpi (or Chuenpee, between Romanization, and it being a period of nonstandardized spelling) signed in 1841, during the First Opium War (1839 – 1842), the Treaty of Nanjing (of later Japanese war crimes infamy), signed in 1842, expressly stated the concession was to be “in perpetuity.” 

During the First Sino-Japanese War (1894 – 1895), the Second Convention of Peking (the Romanized name for Beijing before the conclusion of the Chinese civil war) in 1898, or more specifically, the Convention between the United Kingdom and China, Respecting an Extension of Hong Kong Territory extended permanent control to the Kowloon Peninsula, and established a 99-year lease over what became known as “The New Territories.” (While the latter was the only part of the greater-Hong Kong area, which the UK was obligated to return, by the 1980s it had opted to surrender everything). From 1997 to the present, the territory has been a Special Administration Region (SAR) of the People’s Republic of China. 

That brief history of Hong Kong is probably a good segue into my first and primary objection to the legislation: the residence requirement, which perhaps it should be yours, too, even if you knew little about the territory before reading this piece. Per Section 2.(2)(A)(ii), the beneficiaries of this particular piece of legislation, the PFCA need only have “resided in Hong Kong for not less than the last 10 years as of the date of enactment of th[e] Act.” That’s right; people who moved from mainland China to Hong Kong after the island was retroceded could qualify for “protection.”

 

An agreement between a declining Empire and the producers of the Great Leap Forward

As part of the Sino-British Joint Declaration signed between the UK and the People’s Republic of China, the latter agreed, for 50 years (2047) to govern the city as a Special Administrative Region (SAR) under the principle of “one country, two systems,” which would allow it “a high degree of autonomy, except in foreign and defence affairs” and extend to its residents, “freedom” (the quotes are used to indicate sarcasm because we’re talking about China and the UK is significantly less free that the U.S. was, before the ‘china virus,’ COVID-19) including in Chapter III, Fundamental Rights and Duties of the Residents of its Constitution and Basic Law:

  • “the right to vote and the right to stand for election” (Article 26);
  • “have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration” (Article 27);
  • not “be subjected to arbitrary or unlawful arrest, detention or imprisonment”, prohibitions against the “[a]rbitrary or unlawful search[es] of [resident’s] body” and “deprivation or restriction of [a person’s] freedom” (Article 28);
  • protection from “[a]rbitrary or unlawful search of, or intrusion into, a resident’s home or other premises” (Article 29);
  • “freedom and privacy of communication” whereby “[n]o department or individual may, on any grounds, infringe upon [it] except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences” (Article 30); and
  • “freedom of movement within the Hong Kong Special Administrative Region”, “to travel and to enter or leave”, and [to] emigrat[e] to other countries and regions” (Article 31). 

 

Ethnicity meets geography

I’m sure you’re wondering about the correlation between Hong Kong and me, so allow me to explain. My family has lived there (Taiwan too). Some to this day, still do—going back to before the turn of the 20th Century, and I have close relatives born there. At this point, I’m sure you’re thinking to yourself, ‘I thought you were Latino?’ I am. Perhaps this will come as a surprise to some, but just as there’s are Asians in Latin America—a lot of them, there are Latinos in Asia in places besides the Philippines, having been a Spanish colony from 1565 to 1898. That, of course, was before it became a U.S. territorial possession upon the conclusion of the Spanish-American War ending its two-months of “independence” from Spain until finally becoming its own country in 1946. 

There are enough Latinos, including those of Asian descent in Hong Kong that in 1996, Jerry Stuchiner, the former Chief of the Immigration and Naturalization Service (INS)—the legacy parent of what are now Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS)—office in Hong Kong, who’d since been reassigned to Honduras, was convicted for participating in what the New York Times described as “part of an international network that sold Honduran passports to citizens of China, Taiwan and Macau, enabling them to travel to and settle in the United States.” To show how tumultuous Hong Kong was then, his replacement, James DeBates, was suspended after his wife, “Heddy [], a U.S. citizen of Chinese origin” the Washington Post reported at the time, was “arrested [] on visa-fraud charges linked to the smuggling of Chinese migrants into the United States.”

Again, given my desire for some level of anonymity, I’ll say despite my inarguable Latino heritage, my connection to Hong Kong and Chinese nationalism are strong enough my background investigation records and biometrics obtained from the Office of Personnel Management during the 2013 – 2015 hack were no doubt of interest to several bureaus within the Ministry of State Security, which might… or might not explain why the majority of spam calls I receive are in Mandarin. Of course, there was also my brief flirtation with the writings of Marx and Engels in my teens, followed by my participation in the Free Tibet movement in the 1990s. Yeah, I realize those two things make for quite the dichotomy.

 

But why do they need protection? 

Though the HK Constitution and Basic Law purport to protect freedom of thought, expression, and the right to run for office, it didn’t take long for Hongkongers to realize “the new boss” was not the “same as the old boss,” and despite a lengthy and contentious relationship with the former to pine for reconciliation with the UK or, alternatively, independence, and when it comes to promises made by Beijing, as Roger Daltrey sings, they should not get ‘fooled again.’ 

There have been concerns over the years about increased corruption, which the British had aggressively worked to clean up, beginning in the mid-1970s, as well as criticisms about the regional government’s response to the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak described as slow and ineffective. However, most of the unrest is directly related to Beijing’s disregard for promises made to the UK regarding administration of the region under the “one country, two systems” concept.

[H]uge numbers took to the streets [] in 2003” over an attempt by the Hong Kong Legislative Council to implement a ‘national security’ law as required by Article 23 of the Basic Law, which since 1997, the region had failed to do as well as in 2012 over plans for compulsory “patriotic education.”

In September 2014, in what would be termed “the Umbrella Revolution,” protesters took to the streets over claims Beijing “reneged on [the] agreement to grant open elections by 2017, and demand [for] ‘true universal suffrage’.”

In February 2019, the Hong Kong government proposed a bill that would have allowed for “extradition of criminal suspects, even [to] countries with which it doesn’t have [a] treaty [] including mainland China”. Critics worried Beijing would use the bill to silence political dissent in the region, and that Hongkongers “would be subject to arbitrary detention, unfair trial and torture under China’s judicial system.” After months of demonstrations which became increasingly violent, Beijing prohibited the importation of black clothing, the preferred color of protestors, but the island’s chief executive scrapped the bill.

On June 30, 2020, at 11 p.m., an hour before the twenty-third anniversary of the handover, the Hong Kong government, no doubt in response to protests in 2019 over the proposed extradition bill, introduced a vaguely-worded law written in secret and unanimously passed by the National People’s Congress… in Beijing. It, among other things, clarified crimes such as advocating for “secession, subversion, terrorism and collusion with foreign forces are punishable by a maximum sentence of life in prison”; allows Hongkongers suspected of breaking the ‘national security’ law to be surveilled and can be wire-tapped and prohibits those “found guilty” of such offenses from running for public office. It further specified the establishment and staffing of a new security office in the region, independent of the jurisdiction of local authorities, as well as a new “Committee for Safeguarding National Security” which would be tasked with overseeing the activities of schools, corporations, news companies, and foreigners living in the territory. It would grant the city’s chief executive power to appoint judges to hear national security cases, which could be held in secret, allowed suspects to be held without bail, and permitted “some” to be tried on the mainland.

 

PART II

Impracticality and longevity

The PFCA purports to offer protection to Hongkongers under the auspices of “Temporary Protected Status,” or TPS, which was first introduced by Congress via the Immigration Act of 1990 and is codified as part of the Immigration and Nationality Act (INA) by 8 U.S.C. § 1254a

If you follow me on Twitter, you probably know what my complaints are about the harebrained idea of granting Hongkongers TPS. If you don’t, it goes like this; the statute allows the then-Attorney General, but since 2003, Secretary of Homeland Security to protect from removal (the post-1996 term for deportation) for aliens from a designated country and grants them work permits when: 

(A). “there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state … would pose a serious threat to their [] safety;”

(B). “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected”; or

(C). “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of [it] from [safely] returning”.

Ironically enough, considering we’re talking about China, a country whose growing international ambitions have been furthered by its theft of our intellectual property, and like the Russians, is alleged to have paid bounties to the Taliban to attack Americans in Afghanistan, that third qualification allows for the removal of aliens whose presence in the U.S. is contrary to its national interest.

Now, ask yourself, which of the above sounds like it would apply to what has happened in Hong Kong? The question is rhetorical, so your answer should have been “(D).” none of the above.

In the thirty-one years since the legislative branch created the TPS program, the executive has designated twenty-two countries. As of the date of this post, citizens of ten are currently beneficiaries. However, the PFCA, to the best of my knowledge, would be the first time the former required the latter to do so. Given the judiciary having foiled President Trump’s attempts to end TPS, I’d already planned to write about it. So, to avoid this post being unnecessarily lengthy and veering off onto a related but larger topic, I’ll point out the average of those longest protected (Honduras, Nicaragua, and El Salvador) is 21 years. Even in the case of countries for which status has ended, the U.S. Government has never made even so much as a half-hearted effort to remove those country’s citizens.

Since we’ve established nothing in the statute neatly applies to what has happened in Hong Kong, Beijing is never going to give back what was already tenuous “freedom,” Salvadorans sued over attempts to terminate their status obtained in response to a 2001 earthquake, while for Hondurans and Nicaraguans, it was Hurricane Mitch in 1999, so why would anyone be so naïve to think Hongkongers’ protection would be temporary?

 

The Hunt for Red Hypocrisy

Concerns about TPS notwithstanding, Congress has long had a weakness for oppressees of communism, going back to the earliest days of the Cold War. However, it primarily involved legislation allowing Refugee status or granting immigrant status to aliens Presidents paroled—a concept in the INA codified by 8 U.S.C. § 1182(a)(5) whereby the DHS Secretary, formerly the Attorney General, may allow an alien to physically enter the U.S. for a specific purpose or duration for “urgent humanitarian reasons” or when doing so would be of “significant public benefit.” Parole, prior to 2013, was not considered admission for adjustment of status, i.e., obtaining Lawful Permanent Resident (LPR) status—or more colloquially described as getting a ‘Green Card,’ and as of now is only so in the states which comprise the 6th, 8th, and 9th Circuit Courts of Appeal.

Examples include:

  • Hungarians after the failed revolution of 1956;
  • Cubans beginning in 1959 after Fidel Castro enters Havana, deposed American-backed military dictator, Fulgencio Batista;
  • Czechoslovakians following the “Prague Spring” rebellion;
  • Vietnamese, Cambodians, and Laotians after the fall of Saigon to the Việt Minh, Phnom Penh to the Khmer Rouge, and Vientiane to the Pathēt Lao, respectively in 1975;
  • Jews from the Soviet Union beginning in 1975; and
  • Afghanistan in response to the 1979 Soviet invasion.

 

Over time, other groups have benefited from refuge and later TPS, e.g., Iranians leading up to, and again after the Islamic Revolution in 1979, the former. Still, in a stunning bit of hypocrisy, Nicaraguans had difficulties obtaining Asylum (similar to, but statutorily different from Refugee status requiring physical presence in the U.S. at the time of the request, or one made upon arrival to it), having fled the civil war between the leftist Sandinista government of Daniel Ortega and the American-backed and armed “Contras” supporting the family of deposed and assassinated dictator Anastasio Somoza. 

Another display of evolving favoritism includes no special legislation in response to “green” protests in Iran in 2009 and again in 2011 despite thousands of arrests and dissidents’ suppression in person and online. Accordingly, it probably isn’t too far of a leap to question whether the Czechs would have been hung out to dry in 1989 if the “Velvet Revolution” hadn’t non-violently resulted in the end of four decades of communist rule, or in 2004 – 2005 Ukrainians hadn’t in their “orange” one, been able to secure new Presidential elections at the behest of the Supreme Court after allegations of voter intimidation, electoral fraud, and corruption. 

The U.S. has come along way from the 1939 M.S. St. Louis incident and has not only ratified the UN Convention and Protocol Relating to the Status of Refugees, it essentially codified them with passage of the Refugee Act of 1980

Section 5.(b)(2) of the PFCA requires Hongkongers to “ha[ve] been continuously physically present in the United States since the date of the enactment of th[e] Act”. However, since protesters have been prohibited from leaving the island and arrested trying, suggests the section is mostly moot. Further, no special protections are necessary, and Section 7.(e) essentially acknowledges that when it states:

“[n]othing in this section shall be construed to prevent a Priority [HK] Resident from seeking refugee status under section 207 of the [INA] … or requesting asylum under section 208 of such Act”, i.e., 8 U.S.C. §§ 1157 and 1158

Meanwhile, in either a bit of pro-Chinese largesse or legislative laziness, as recently as 2009, in annual Omnibus Appropriations bills, Congress was still allowing “compensation [for] officer[s] or employee[s] of the Government of the United States (including any agency the majority of the stock of which is owned by [it]), of “national[s] of the People’s Republic of China who qualifie[d] for adjustment of status pursuant to the Chinese Student Protection Act of 1992 (Public Law 102-404)“, legislation which gave favorable legal status to Chinese in the U.S. almost a year to the day after the start of the student-led pro-democracy protests in Beijing’s Tiananmen Square.

 

Conclusion

Contrary to hype pushed by pundits and pols alike, offering refuge to Hongkongers in no way punishes Beijing, and they wouldn’t only be protected ‘temporarily.’ Further, and I say this as someone with some knowledge of China and experience in immigration, we already have issues vetting Chinese citizens for nonimmigrant visas and those seeking to naturalize! Why would any reasonable person assume we can effectively screen “Hongkongers” who’d lived on the island for as little as ten years when those who were born there while still a British colony like their mainland contemporaries aren’t immune to espionage push and pull factors through elicitation, exploitation, blackmail, coercion, or enticement? Hell, at this point, given Senator Dianne Feinstein (D-CA) is alleged to have employed a Chinese spy for something like 20 years, Representative Eric Swalwell (D-CA) purportedly had a multi-year relationship of some kind with a Chinese national, not to mention the President-elect’s son is under investigation regarding his business dealings in mainland China, it’s obvious even politicians, and their families aren’t safe from Chinese intelligence operations.

At a time when the U.S. is locked down due to a virus that inarguably originated in China, which irrespective of your politics or views about its severity and survivability, has to some extent undoubtedly affected your life and livelihood, and when relations between the two countries were already at a near all-time low, you wouldn’t be wrong to question the stated purpose of the PFCA from a Congress which has shown more interest in pushing its agenda than legislation which helps U.S. Citizens and existing Lawful Permanent Residents. Here’s a novel idea: since Taiwan is closersimilarly threatened by China, and shown a willingness, albeit reluctantly, to aid Hongkongers at risk, perhaps we shouldn’t compete with it in trying to do so?

© 2021 All rights reserved. No content on this site may be copied or reused in any form or fashion without express written permission.

Leave a Reply

Your email address will not be published. Required fields are marked *