IN THE SENATE OF THE UNITED STATES
April 15, 2021
Mr. Markey (for himself, Ms. Warren, Mr. Rubio, and Mr. Van Hollen) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To revoke or deny visas to Chinese officials involved in the formulation or execution of a policy that prevents innocent United States citizens from leaving China.
This Act may be cited as the
Ending China's Exit Ban for American Citizens Act of 2021.
Congress finds the following:
According to the Integrated Country Strategy for the United States Mission to China, released on August 29, 2018—
Chinese law enforcement and security services employ extra-judicial means against U.S. citizens without regard to international norms; and
are sometimes used to prevent U.S. citizens who are not themselves suspected of a crime from leaving China as a means to pressure their relatives or associates who are wanted by Chinese law enforcement in the United States.
The Government of China has imposed exit bans on United States citizens in the context of criminal charges and private commercial disputes.
Imposing exit bans on foreign nationals is authorized by Article 28 of the Exit and Entry Administration Law of the People’s Republic of China, which—
lists the circumstances under which
foreigners shall not be allowed to exit China, including
other circumstances in which exit shall not be allowed in accordance with laws or administrative regulations; and
assigns responsibility for administering exit/entry matters to the Ministry of Public Security and the Ministry of Foreign Affairs, with public security organs responsible for administering “the stay and residence of foreigners.
Such exit bans against United States citizens may violate Article 35 of the Consular Convention Between the United States of America and the People’s Republic of China, done at Washington September 17, 1980, which states that—
if a United States national is
placed under any form of detention, the Government of China shall notify the United States consulate within 4 days; and
a United States consular officer is entitled to
be informed of the reasons for which said national has been arrested or detained in any manner.
Such exit bans may also violate Article 36 of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, and in effect in China as of August 1, 1979, which requires the Government of China to
without delay, inform the consular post of the sending State if, within its consular district, a national of that State … is detained in any other manner..
Many United States citizens are not aware of a ban on their exit until they attempt to leave China and once they are made aware of the ban, Chinese authorities provide very little information to the United States citizen, or to United States consular officials regarding—
the nature of the ban;
which Chinese government entity is responsible for the ban; and
what procedures must be followed to resolve the dispute related to the ban.
The apparent extra-judicial application of exit bans to United States citizens presents a serious human rights concern that violates due process rights to which United States citizens are entitled under international law.
Inadmissibility of certain aliens
Ineligibility for visas
If the Secretary of State determines that an official of the Government of China has been substantially involved in the formulation or execution of a policy that prohibits certain United States citizens from leaving China in an attempt to convince a relative of such citizens to submit himself or herself into the custody of the Government of China for prosecution, to compel United States citizens to participate in Chinese government investigations, or to aid the Government of China in resolving civil disputes in favor of Chinese parties—
such official may not be issued a visa to enter the United States or be admitted to the United States; and
any visa or other documentation to enter or to be present in the United States that was previously issued to such official shall be revoked by the Secretary of State, in accordance with section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)).
Termination of visa ineligibility
The Secretary of State may terminate visa ineligibility under subsection (a) with respect to an individual if the Secretary of State makes a determination that—
credible information exists that the individual did not engage in the activity for which visa ineligibility was imposed;
the individual has been prosecuted appropriately for the activity for which visa ineligibility was imposed;
the individual has—
credibly demonstrated a significant change in behavior;
been subject to an appropriate consequence for the activity for which visa ineligibility was imposed; and
credibly committed to not engage in an activity described in that subsection in the future; or
the termination of visa ineligibility is in the national security interests of the United States.
Not later than 15 days before the date on which visa ineligibility is terminated under paragraph (1) with respect to an individual, the Secretary of State shall submit a report to the Committee on Foreign Relations of the Senate, the Committee on the Judiciary of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committee on the Judiciary of the House of Representatives that describes the justification for the termination.
Annual report to Congress
Not later than 1 year after the date of the enactment of this Act, and annually thereafter for the following 5 years, the Secretary of State shall submit a report to the congressional committees listed in subsection (b)(2) that identifies—
to the extent practicable, all of the Chinese officials who were substantially involved in the formulation or execution of a policy that prohibits certain United States citizens from leaving China in an attempt—
to convince a relative of such citizens to submit himself or herself into the custody of the Government of China for prosecution;
to compel United States citizens to participate in Chinese government investigations; or
to aid the Government of China in resolving civil disputes in favor of Chinese parties;
the individuals who have had visas denied or revoked pursuant to subsection (a) during the preceding year, including the dates on which such denials or revocations were imposed or terminated, as applicable;
the number of United States citizens who the Government of China has prohibited from leaving China for any of the reasons described in subsection (a); and
for each of the United States citizens referred to in subparagraph (C), the period during which they have been forced to remain in China.
The report required under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.
Exclusion of personally identifiable information
The Secretary of State may not include any personally identifying information of any United States citizen in any of the reports submitted to Congress under paragraph (1).
Any information obtained by the Secretary of State to complete the report under this subsection shall be subject to section 552a of title 5, United States Code (commonly known as the
Waiver for national interest
The Secretary of State may waive the application of subsection (a) in the case of an alien if the Secretary determines that such waiver—
is necessary to permit the United States to comply with the Agreement Regarding the Headquarters of the United Nations, signed at Lake Success June 26, 1947, and entered into force November 21, 1947 (TIAS 1676), or any other applicable international obligation of the United States; or
is in the national interest of the United States.
Upon granting a waiver under paragraph (1), the Secretary of State shall submit a report to the congressional committees listed in subsection (b)(2) that—
details the evidence and justification for the necessity of such waiver; and
if such waiver is granted pursuant to paragraph (1)(B), explains how such waiver relates to the national interest of the United States.