News media throughout the world have recently brought into focus the existence of clandestine police stations being operated throughout the world by the People’s Republic of China (PRC). See, e.g., here, here, and here. The media exposure follows a report outing these stations by an organization, Safeguard Defenders, which monitors disappearances, forced return of dissidents, and other untoward activities of the PRC.
Governments in at least 14 of the countries in which their existence has become known have reacted with outrage and, according to Safeguard Defenders, promptly launched investigations into this foreign police intrusion into their sovereign territories. That list of 14 allegedly includes the United States, although so far the U.S. Departments of State and Justice have been surprisingly mum about what, exactly, is being done. Irritated Republican lawmakers have written a letter to the Secretary of State and Attorney General demanding answers – not only into what’s being done but how such stations could have come into existence in the first place. These are two important, interrelated-but-distinct, questions and both deserve answers.
How did they come into being? There are two likely ways the stations could have been established. Either the policemen and women staffing them arrived under diplomatic cover as consular officials, economic advisors, or the like – in other words, relatively low-level functionaries who nonetheless possess diplomatic status. Alternatively, they are what the intelligence community refers to as “NOCs”, people who arrive under non-official cover, without diplomatic status. NOCs (spies really, in any normal sense of the word) pose as nonimmigrant businessmen, students, scholars; they might even have arrived as tourists who later overstayed their visas and melded into the illegal populations of the country. It’s hard to say which occurred, although some media reports describe the stations as being in unlikely places like a Chinese restaurant, which suggests at least some of them are operating without diplomatic cover. Quite likely though, there may be a mix of NOCs and thinly veiled “diplomatic” functionaries.
(It’s also possible that some of the NOCs may have obtained resident alien status—for instance, through marriage, fraudulently procuring asylum, etc. The status of each individual identified as acting in a police capacity for the Chinese state should be carefully examined, and certainly there are avenues available under immigration law to deal with such persons and expel them, but they are outside the purview of this particular post and merit a separate discussion.)
What can be done? There may be crimes associated with some of the conduct of these unorthodox “police”, for instance, threats, assault, extortion, even kidnapping. Without knowing the detailed activities of each policeman/woman in each station, it’s hard to be more specific. But this is certain: if they have committed crimes and have been operating without cover, they are subject to arrest and prosecution like anyone else. If they enjoy diplomatic status, they may still be arrested, but they will likely invoke diplomatic immunity as a protection against prosection, at which point they may not be charged – that is, unless the PRC abandons them to their fate by withdrawing its claim to diplomatic status on their behalf In this event, they are subject to expulsion, and Section 212(a)(2)(E) of the Immigration and Nationality Act (INA) renders them inadmissible to the United States thereafter. In the unlikely event that their PRC masters at home did forsake them, then like the NOCs they could be prosecuted and imprisoned upon conviction.
But let’s put criminal arrest and prosecution aside for a moment, not least because such cases may be difficult to make if the victims are too frightened – for themselves or for family still left in the PRC – to come forward or cooperate.
Absent such prosecutions, can anything be done here in the U.S.? The short answer is yes. Let’s look at the different scenarios for NOCs and diplomats.
NOCs. If some of the PRC policemen/women entered the U.S. as nonimmigrants and overstayed their period of admission, then they are susceptible to arrest and removal under Sec. 237(a)(1)(B) and (C) of the INA.
However, even if they were to be technically still within the time boundaries of their admission (for instance as foreign students who are admitted for “duration of status”), they are still subject to arrest and removal under several subsections of Sec. 237. They are, for instance, removable for having been inadmissible at the time of entry since their true purpose of entry had nothing to do with business, tourism, academic or scholarly studies, or the like. In other words, they committed fraud at the time of application for their nonimmigrant visa by lying about their purpose of entry. See INA Sec. 237(a)(1)(A).
What is more, under Sec. 237(a()(1)(B), these individuals would be amenable to removable were the consular officer who issued the visa exercise his/her authority to revoke it:
“Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable.” (Emphasis added.)
For its part, INA Sec. 1201(i) simply states,
“After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance.”
Certainly there is justification for such revocation since no U.S. consular officer would knowingly grant a tourist, student, business, or other such visa to a PRC police officer intending to violate our sovereignty by engaging in unlawful, covert activities within the United States.
NOCs are also almost certainly susceptible to being charged in removal proceedings for violation of the national security grounds laid out at Sec. 237(a)(4). See, particularly Sec. 237(a)(4)(A)(ii). “Any alien who has engaged, is engaged, or at any time after admission engages in… any other criminal activity which endangers public safety or national security…is deportable.” (Note that the provision refers to criminal activity; it does not specifically require a criminal conviction.)
Diplomats. A PRC police officer who was granted, and entered under, diplomatic status may be shielded from prosecution as described previously, but clearly was engaged in “activities inconsistent with their diplomatic status”, to use the operative turn of phrase. Interestingly, this phrase was invoked by China in July of 2020 to expel American consular officials in the city of Chengdu. The PRC also invoked the phrase in February of this year to sternly warn Japanese officials.
The relevant portion of the INA can be found at Sec. 237(a)(4)(C), which states, “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” All this charge requires is a statement from the Secretary of State asserting that the individual’s presence has serious adverse foreign policy consequences. Under the totality of circumstances, it most certainly applies.
A final note about criminal prosecution: Although previously I laid out a few possible charges that might be brought – assuming victims of harassment, threats or intimidation chose to cooperation – there is another path open to U.S. officials. Each and every one of these aliens, whether NOCs or diplomats, has violated federal criminal laws by engaging in fraud in the procurement of their visas, by concealing the true purpose of their entry. The relevant statutes may be found at 8 U.S. Code Sec. 1306(c) (“fraudulent statements”), as well as 18 U.S. Code, Sec. 1001 (“false statements generally”), and the more specific 18 U.S.C. Sec. 1546 (“fraud and misuse of visas, permits, and other documents”). The benefit of these charges is that they do not require cooperation from frightened or hesitant witnesses; they simply require establishing the paper trail via the visa application itself, and evidence of the individual’s participation in the covert police operations. Keep in mind, though, that diplomats are still subject to immunity from prosecution if invoked, as initially described.
What is clear is that the U.S. government owes the American public an answer to the two questions previously posed. How did such stations come into existence in the first place, and what is being done about them now? Failure to address these questions fully and publicly may lead many to conclude that our government has become a paper tiger loath to confront a newly resurgent and aggressive China.