The US and China: Joining Hands To Fight Corruption? Not So Fast

By Justin Kirschner

It’s hard to imagine the United States and China “joining hands” on much.  The two countries are often at loggerheads over China’s currency value, China’s power projection into the South China Sea, and alleged Chinese hacking of US government personnel records.

But “joining hands” is just how China described the US-Sino relationship in fighting cross-border corruption after the US repatriated wanted economic fugitive Yang Jinjun ahead of President Xi’s first state visit to the US.  Just days later, China heralded the return of another fugitive, Kuang Wan Fang, who was serving a prison term in the US for financial crimes, but was wanted in China for corruption and bribery linked to those same crimes that got her thrown behind bars in the US.

China’s rosy assessment not withstanding, it is premature to say the recent repatriations are a harbinger of a change in US policy. According to Chinese officials, as of 2014, the United States is the top destination for Chinese economic fugitives who sometimes, as in the case of Mr. Yang, live in the US for many years.  In fact, up to forty of the 100 fugitives China is seeking globally as part of its so-called Sky Net anti-corruption operation are believed to be living in the United States. Mr. Yang is the first of the forty to be repatriated. All told, reports say that Beijing privately gave Washington a list of 150 fugitives it believes to be in the United States.  The most diplomatically sensitive cases appear only on the private list for fear that being publicly named will prompt the fugitives to seek asylum and pass intelligence secrets to their host countries.

The US is the favorite safe-haven for Chinese fugitives in part because the US immigration system provides ample means for entry. Often, Chinese officials become “naked,” sending family and money to the US with a plan to attain a visa and green card through their new-found family connections.  But would-be fugitives need not make such intricate plans that could take years to execute, require seeing the writing on the wall before being caught in a Chinese dragnet, and could itself raise corruption suspicions. There is a much easier way in: the EB-5 Immigrant Investor program is a “relative breeze” through which legal US status may be obtained.  Corrupt Chinese businessmen and officials can essentially buy themselves a green card with $500,000 and a promise—that often goes unfulfilled—to invest the money in ways that will create jobs in the US. How many newly created jobs are required to receive a green card? Just ten. In 2014, over 90% of the 10,000 EB-5 visas went to Chinese immigrants.  Corrupt Chinese officials exploit the EB-5 process because red flags about an applicant’s source of wealth are often ignored in the flood of applications, and follow-up oversight of their activities in the US is weak.

Once in the United States, a combination of US laws, a lack of a US-China extradition treaty, and concern for the condition of repatriated fugitives means that repatriation is rare.  A Chinese national can be sent home only through either a narrow extradition statute that requires committing a violent crime against a US citizen on foreign soil, and extradition approval by the Secretary of State; or through deportation proceedings.  Deportation proceedings will only be initiated when a fugitive violates immigration laws; if a fugitive committed certain crimes in the US; or if the Secretary of State believes an alien’s presence has negative foreign policy consequences.  Though the potential for deportation proceedings appears to be broad—especially through the Secretary of State’s foreign policy prerogative—initiation of proceedings does not guarantee deportation.  Judges have often declined to deport over concerns for how fugitives will be treated in China’s criminal justice system. And furthermore, if all else fails, some fugitives have applied for political asylum, claiming that upon return to China, they will face persecution and other human rights abuses.

Despite both countries’ interest in ridding its society of corrupt Chinese officials, cooperation has been scant. But there is an opening here that the US could exploit to its advantage.  Case-by-case repatriations could serve US interests, including promotion of human rights.  In the overall US-China relationship, security and economics are paramount. For the US, human rights is down the list, but not too far down; and for China, repatriation of fugitives is down the list, but not too far down. The US could agree to accelerate repatriation, focusing on fugitives that are a priority to China and those engaged in shady financial dealings in the US. The key is to maintain the case-by-case nature of repatriation decisions.  This gives the US the flexibility to consider all of its national interests—ending China’s human rights abuses, gaining valuable intelligence from fugitives, and eliciting security and economic concession from China—when deciding on Chinese repatriation petitions.

As of now, without more evidence, these recent repatriations stand only as gestures of good will to a visiting head of state.  Only if they continue will they show a change in US policy.