I wrote yesterday about the problems with H.R. 8428, a bill that proposes to grant immigration benefits to Hong Kong residents. The bill has been passed by the House — a disappointment but not a surprise. Sometimes appearing to do something is easier and more convenient for politicians than taking substantive but more controversial steps, and that's the case here, at least in my view.
In that pervious post about H.R. 8428, the "Hong Kong People's Freedom and Choice Act of 2020", I focused almost exclusively on the primary focus of the bill, which was a congressionally mandated Temporary Protected Status (TPS) program for people from Hong Kong.
But there is another provision, in Section 10 of the bill, that merits attention because it skews the plain meaning of the words relating to the internationally recognized standard (adopted in U.S. immigration law at Section 101(a)(42) of the Immigration and Nationality Act, or "INA") defining what constitutes a refugee. Here's what the relevant portion of existing law says:
(42) The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. [Emphasis added.]
Section 10 of the House bill would substitute instead this language:
(a) IN GENERAL.—Aliens described in subsection (b) may establish, for purposes of admission as a refugee under sections 207 of the Immigration and Nationality Act (8 U.S.C. 1157) or asylum under section 208 of such Act (8 U.S.C. 1158), that such alien has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion by asserting such a fear and a credible basis for concern about the possibility of such persecution. [Emphasis added.]
There is a chasm of difference between existing law in which an alien must establish a well-founded fear, versus a "concern about the possibility of" persecution. The latter softens the standard so much as to make it meaningless. It would become extraordinarily difficult for an immigration adjudicator to deny refugee applications filed by any Hong Kong residents because of the definitional changes encompassed in the bill. Of course, this will lead in turn to other particularized groups seeking similar treatment under the "what's good for the goose is good for the gander" theory of equity.
This is self-evidently true, because the language in Section 10 was stolen from language dating back to Public Law 101-167 of 1989, which carved out exceptions to the refugee standard for various groups from the former Soviet Union and certain countries of Indochina. Having been resurrected again after all these years, one can't help but wonder who will next seek such generous treatment if it is successful for Hong Kong.
If the standard embedded in law at INA Section 101(a)(42) for the granting of refugee status is significantly flawed — and it isn't — then the answer is to amend it for one and all. But if that isn't the case, then it should be left alone and no categories or groups should be entitled to favorable treatment over others. These carve-outs make a mockery of our refugee laws, regulations, and processes, and are inherently unfair to others who don't have the clout to achieve them.
Worse, in the long run, the carve-outs — by undercutting the need to actually find real or a likelihood of persecution — are contrary to U.S. interests. They operate very much in favor of oppressors because they create an escape valve by which iron-fisted and undemocratic governments can bleed off popular dissatisfaction, leaving only a docile and easily cowed populace behind. We have seen something similar to this happen over the years in the way the Castro regime has gotten rid of pro-democracy and opposition voices on the island of Cuba by means of the Cuban Adjustment Act, while still preserving for itself the vicious ability to make examples of those who incur the most wrath by their steadfastness in the face of persecution.
If the Congress or the Executive wish to make a contribution to the well-being of those in Hong Kong who stand for democracy, it is best done by leaving intact the meaning of "refugee" already embedded in law, and at the same time taking steps to sanction, economically, via visa denials and through other means, those in the People's Republic of China (PRC), the Chinese Communist Party, and within the Hong Kong government who have been instrumental in, or support, PRC repression in the Hong Kong Special Administrative Region.
Now that the House has moved so precipitously, we must hope that the Senate exhibits more deliberation and thought before acting. Failing that, it will be up to the president to veto this bill, which wreaks harm while doing little or no commensurate good for American strategic interests, either in supporting democracy abroad or countering the threat posed by the PRC.