Imposing Immigration-Related Visa and Entry Sanctions to Open the Doors to China's Labs

By Dan Cadman on April 28, 2020

Readers may recall that in January, long before others, Sen. Tom Cotton (R-Ark.) warned of the possibility of a pandemic emanating from China and called for a travel ban. For his prescience, he was treated to scorn from the chattering classes and the mainstream media — the same ones who now fault President Trump for his slow response to the virus's onset. Even major health organizations piled on and suggested that Cotton's remarks were unhelpful and unnecessary. But who was proved wrong by events? Not Cotton.

The senator has since penned an op-ed in the Wall Street Journal (partially behind a paywall), suggesting that circumstantial-but-cogent evidence points to the virus emanating from a biolab in Wuhan. This same point has been made by Jim Geraghty, writing in National Review.

Considered objectively, there is much about the theory that makes sense. It would also explain why the Chinese Communist Party (CCP), which rules the People's Republic of China (PRC) with an iron hand, authorized reopening of the "wet markets" in Wuhan, to the horror of many worldwide. It suggests that party officials know that, however despicable the markets are, they were not the source of the coronavirus whose global death toll is now quickly approaching 200,000.

In his op-ed, Cotton has made the point that until the CCP allows an open and unfettered inquiry — rather than denying entry to health officials and expelling journalists who refuse to be silenced — we may never know for sure. This is, of course, unacceptable from any conceivable moral, intellectual, scientific, or even international legal standpoint. But what can be done? Verbal rebukes mean nothing to the CCP.

A part of the answer lies in imposing visa sanctions against all citizens and nationals of the PRC: No granting of visas, and denial of entry to those already possessing visas of any kind, including tourists, students, scholars, and temporary guestworkers headed for jobs in Silicon Valley or elsewhere. None. The only exceptions would be for returning PRC nationals who already possess lawful permanent resident status, or for refugee entrants — and the latter only when they are at significant risk. As my colleague Nayla Rush has observed:

Resettlement must be a ticket out only for refugees who are genuinely at risk in the countries hosting them. But contrary to common claims, for most resettlement is not a matter of life and death. Only 17 percent of UNHCR global resettlement submissions in 2018 were urgent or emergency ones.

What would be the legal bases for an action suspending virtually all visas and entries of PRC nationals?

First, the Immigration and Nationality Act (INA) already contains language providing for the exclusion or deportation of aliens whose presence is contrary to the foreign policy interests of the United States — see INA sections 212(a)(3)(C) and 237(a)(4)(C).

Although these provisions are generally understood to be applicable to individual aliens (and should be invoked each and every time a PRC national seeks a visa or applies for admission at a port of entry), the rationale behind them is even more important when applied to a class of aliens if the result will be opening doors to scientific inquiry needed to save thousands of lives now and in the future. Is that not a critical foreign policy interest of the United States? Surely that argument is incontestable.

Second, those particular "foreign policy" removal provisions are not the only legal justifications that may be relied upon for invoking the sanctions — they, and the important logic behind them, merely undergird and reinforce Sections 212(f) and 215(a) of the INA. Section 212(f) is the same robust presidential authority already used for other executive orders (the so-called terrorist "travel ban" and the most recent suspension of green card processing to prevent the spread of the virus), and Section 215(a) was invoked by President Jimmy Carter to order registration and, when necessary, expulsion, of Iranian students in the United States subsequent to the Iranian hostage crisis in 1979. Carter's presidential order also ordered the suspension of both immigrant and nonimmigrant visa processing for Iranian nationals using Section 215(a).

Department of Homeland Security nonimmigrant statistics relating to PRC nationals reflect that in fiscal year 2018:

  • Among nonimmigrants, (see Supplementary Table 27d) there were 2,625,021 tourist and business admissions; 657,996 student and scholar admissions; 108,751 temporary worker admissions; 11,803 "all other classes" (a catchall for everyone from fiancés to journalists); and 5,659 "unknown", for a total of 3,409,230 PRC admissions in that year alone. Note than an admission doesn't always equal one alien, as some individuals may depart and reenter in the same year, but even so, that is a huge number. Note also that admissions of diplomats and other accredited international representatives from the PRC have been excluded from this total.
  • Among immigrant categories (see Table 10) there were 24,022 immediate relative visas; 11,728 "family sponsored" (extended family) visas; 18,843 employment-based visas; 19 diversity lottery visas; 10,420 adjustments to permanent residence by refugees and asylees; and 182 unspecified "other" immigrant visas, for a total of 65,214 permanent admissions of PRC nationals to the United States. Note that, unlike nonimmigrant admissions, there is a one-to-one ratio between immigrant admissions and aliens.

Cumulatively, those PRC immigrant and nonimmigrant admissions for 2018 total 3,474,444 — an astoundingly high figure, even given the qualification previously noted about nonimmigrant figures.

Two points merit emphasis:

First, were the president to suspend visas and entry of PRC nationals, it should not be, or be viewed as, a punitive measure. It's worth remembering that citizens and nationals of the PRC, whether they are majority-group Han Chinese, or ethnic minorities such as Uighurs or Tibetans or others, are the foremost, and most frequent, victims of the CCP's totalitarian domination of the country and its consistent violation of their fundamental rights. Were we to know the real toll of virus-related deaths in China, instead of the bogus statistics put forward by the PRC, one suspects that we would be shocked. But of course the CCP never wants us to glimpse the truth for fear that the man behind the red curtain will be revealed in all his impotence. Rather, imposing these sanctions is to exert maximum pressure on the CCP to open up the suspect laboratories (there are two in Wuhan that merit scrutiny), as well as all data sources so that the origin of the virus may be located and examined in granular detail for scientific purposes. The president can make clear that the suspensions will only remain in place until the PRC does open its doors literally and figuratively for the scientific explorations needed.

Second, the president should encourage other like-minded leaders to pile on the pressure and do the same. The United States has a history of taking the lead in calling other nations to action on important global matters. Discovering the origins of this virus is of paramount importance, and collective action is not only in American interests, but will in the end probably be necessary to succeed. Italy and the United Kingdom come immediately to mind, but the more nations the better, since the world will be a better (and safer) place once everything that can be known about coronavirus and its spread is known.

If imposed by a community of nations, such visa and entry sanctions would constitute the kind of powerful pressure point to which the CCP is likely to respond since it will not want to be cast into the role of pariah nation (where it rightly belongs after its scurrilous behavior in covering up the existence and spread of the virus). It is also a collective manner of pushback against aggressive Chinese pressure being applied to individual countries like Australia that have demanded accountability, only to be told they will be subjected to economic boycotts and other harsh reactions if they don't back off.

Such sanctions would also probably bring with them domestic pressure of the type the CCP likes to keep a lid on. This is because literally millions of PRC business people, intending students and scholars, and temporary workers will be furious at being cut off from their economic contacts, prestigious schools of learning, and research institutions throughout the world.

What's more, spouses and family members of the communist party elite enjoy the perquisites of frequent travel to the United States, the UK, France, Australia, and other such countries; being denied this ability will undoubtedly have unhappy repercussions at home for many senior officials.

Multiply the nearly 3.5 million nonimmigrant and immigrant PRC admissions to the United States for just 2018 many times over for even just a few of the world's developed countries, and one can see the magnitude of the problem that the CCP would face were the cork to be put into the bottle on visas and entries by a community of nations working to pressure the Chinese government to open up its records and laboratories for inspection — as it ought to be doing of its own accord.

Immigration-related visa and entry sanctions may not be adequate by themselves, and certainly other economic and/or politico-diplomatic measures could and should be considered. But they are a start, and accountability from the People's Republic of China is something the world should not only expect but demand.