Ending China's Exit Ban for American Citizens Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1138 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. 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 A BILL To revoke or deny visas to Chinese officials involved in the formulation or execution of a policy that prevents inno- cent United States citizens from leaving China. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Ending China’s Exit 4 Ban for American Citizens Act of 2021’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 2 •S 1138 IS (1) According to the Integrated Country Strat- 1 egy for the United States Mission to China, released 2 on August 29, 2018— 3 (A) ‘‘Chinese law enforcement and security 4 services employ extra-judicial means against 5 U.S. citizens without regard to international 6 norms’’; and 7 (B) exit bans ‘‘are sometimes used to pre- 8 vent U.S. citizens who are not themselves sus- 9 pected of a crime from leaving China as a 10 means to pressure their relatives or associates 11 who are wanted by Chinese law enforcement in 12 the United States’’. 13 (2) The Government of China has imposed exit 14 bans on United States citizens in the context of 15 criminal charges and private commercial disputes. 16 (3) Imposing exit bans on foreign nationals is 17 authorized by Article 28 of the Exit and Entry Ad- 18 ministration Law of the People’s Republic of China, 19 which— 20 (A) lists the circumstances under which 21 ‘‘foreigners shall not be allowed to exit China’’, 22 including ‘‘other circumstances in which exit 23 shall not be allowed in accordance with laws or 24 administrative regulations’’; and 25 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 3 •S 1138 IS (B) assigns responsibility for administering 1 exit/entry matters to the Ministry of Public Se- 2 curity and the Ministry of Foreign Affairs, with 3 public security organs responsible for admin- 4 istering ‘‘the stay and residence of foreigners. 5 (4) Such exit bans against United States citi- 6 zens may violate Article 35 of the Consular Conven- 7 tion Between the United States of America and the 8 People’s Republic of China, done at Washington 9 September 17, 1980, which states that— 10 (A) if a United States national is ‘‘placed 11 under any form of detention’’, the Government 12 of China shall notify the United States con- 13 sulate within 4 days; and 14 (B) a United States consular officer is en- 15 titled to ‘‘be informed of the reasons for which 16 said national has been arrested or detained in 17 any manner.’’ 18 (5) Such exit bans may also violate Article 36 19 of the Vienna Convention on Consular Relations, 20 done at Vienna April 24, 1963, and in effect in 21 China as of August 1, 1979, which requires the Gov- 22 ernment of China to ‘‘without delay, inform the con- 23 sular post of the sending State if, within its consular 24 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 4 •S 1138 IS district, a national of that State . . . is detained in 1 any other manner.’’. 2 (6) Many United States citizens are not aware 3 of a ban on their exit until they attempt to leave 4 China and once they are made aware of the ban, 5 Chinese authorities provide very little information to 6 the United States citizen, or to United States con- 7 sular officials regarding— 8 (A) the nature of the ban; 9 (B) which Chinese government entity is re- 10 sponsible for the ban; and 11 (C) what procedures must be followed to 12 resolve the dispute related to the ban. 13 (7) The apparent extra-judicial application of 14 exit bans to United States citizens presents a serious 15 human rights concern that violates due process 16 rights to which United States citizens are entitled 17 under international law. 18 SEC. 3. INADMISSIBILITY OF CERTAIN ALIENS. 19 (a) INELIGIBILITY FOR VISAS.—If the Secretary of 20 State determines that an official of the Government of 21 China has been substantially involved in the formulation 22 or execution of a policy that prohibits certain United 23 States citizens from leaving China in an attempt to con- 24 vince a relative of such citizens to submit himself or her- 25 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 5 •S 1138 IS self into the custody of the Government of China for pros- 1 ecution, to compel United States citizens to participate in 2 Chinese government investigations, or to aid the Govern- 3 ment of China in resolving civil disputes in favor of Chi- 4 nese parties— 5 (1) such official may not be issued a visa to 6 enter the United States or be admitted to the United 7 States; and 8 (2) any visa or other documentation to enter or 9 to be present in the United States that was pre- 10 viously issued to such official shall be revoked by the 11 Secretary of State, in accordance with section 221(i) 12 of the Immigration and Nationality Act (8 U.S.C. 13 1201(i)). 14 (b) TERMINATION OF VISA INELIGIBILITY.— 15 (1) IN GENERAL.—The Secretary of State may 16 terminate visa ineligibility under subsection (a) with 17 respect to an individual if the Secretary of State 18 makes a determination that— 19 (A) credible information exists that the in- 20 dividual did not engage in the activity for which 21 visa ineligibility was imposed; 22 (B) the individual has been prosecuted ap- 23 propriately for the activity for which visa ineli- 24 gibility was imposed; 25 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 6 •S 1138 IS (C) the individual has— 1 (i) credibly demonstrated a significant 2 change in behavior; 3 (ii) been subject to an appropriate 4 consequence for the activity for which visa 5 ineligibility was imposed; and 6 (iii) credibly committed to not engage 7 in an activity described in that subsection 8 in the future; or 9 (D) the termination of visa ineligibility is 10 in the national security interests of the United 11 States. 12 (2) NOTIFICATION.—Not later than 15 days be- 13 fore the date on which visa ineligibility is terminated 14 under paragraph (1) with respect to an individual, 15 the Secretary of State shall submit a report to the 16 Committee on Foreign Relations of the Senate, the 17 Committee on the Judiciary of the Senate, the Com- 18 mittee on Foreign Affairs of the House of Rep- 19 resentatives, and the Committee on the Judiciary of 20 the House of Representatives that describes the jus- 21 tification for the termination. 22 (c) ANNUAL REPORT TO CONGRESS.— 23 (1) IN GENERAL.—Not later than 1 year after 24 the date of the enactment of this Act, and annually 25 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 7 •S 1138 IS thereafter for the following 5 years, the Secretary of 1 State shall submit a report to the congressional com- 2 mittees listed in subsection (b)(2) that identifies— 3 (A) to the extent practicable, all of the 4 Chinese officials who were substantially involved 5 in the formulation or execution of a policy that 6 prohibits certain United States citizens from 7 leaving China in an attempt— 8 (i) to convince a relative of such citi- 9 zens to submit himself or herself into the 10 custody of the Government of China for 11 prosecution; 12 (ii) to compel United States citizens 13 to participate in Chinese government inves- 14 tigations; or 15 (iii) to aid the Government of China 16 in resolving civil disputes in favor of Chi- 17 nese parties; 18 (B) the individuals who have had visas de- 19 nied or revoked pursuant to subsection (a) dur- 20 ing the preceding year, including the dates on 21 which such denials or revocations were imposed 22 or terminated, as applicable; 23 (C) the number of United States citizens 24 who the Government of China has prohibited 25 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 8 •S 1138 IS from leaving China for any of the reasons de- 1 scribed in subsection (a); and 2 (D) for each of the United States citizens 3 referred to in subparagraph (C), the period dur- 4 ing which they have been forced to remain in 5 China. 6 (2) FORM.—The report required under para- 7 graph (1) shall be submitted in unclassified form, 8 but may include a classified annex. 9 (3) EXCLUSION OF PERSONALLY IDENTIFIABLE 10 INFORMATION.—The Secretary of State may not in- 11 clude any personally identifying information of any 12 United States citizen in any of the reports submitted 13 to Congress under paragraph (1). 14 (4) PRIVACY ACT.—Any information obtained 15 by the Secretary of State to complete the report 16 under this subsection shall be subject to section 17 552a of title 5, United States Code (commonly 18 known as the ‘‘Privacy Act’’). 19 (d) WAIVER FOR NATIONAL INTEREST.— 20 (1) IN GENERAL.—The Secretary of State may 21 waive the application of subsection (a) in the case of 22 an alien if the Secretary determines that such waiv- 23 er— 24 VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS 9 •S 1138 IS (A) is necessary to permit the United 1 States to comply with the Agreement Regarding 2 the Headquarters of the United Nations, signed 3 at Lake Success June 26, 1947, and entered 4 into force November 21, 1947 (TIAS 1676), or 5 any other applicable international obligation of 6 the United States; or 7 (B) is in the national interest of the 8 United States. 9 (2) NOTIFICATION.—Upon granting a waiver 10 under paragraph (1), the Secretary of State shall 11 submit a report to the congressional committees list- 12 ed in subsection (b)(2) that— 13 (A) details the evidence and justification 14 for the necessity of such waiver; and 15 (B) if such waiver is granted pursuant to 16 paragraph (1)(B), explains how such waiver re- 17 lates to the national interest of the United 18 States. 19 Æ VerDate Sep 11 2014 21:44 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S1138.IS S1138 jbell on DSKJLSW7X2PROD with BILLS