Supporting the snakeheads: human smuggling from China and the 1996 amendment to the U.S. statutory definition of "refugee.".

• Author: Kung, Cleo J.

1. INTRODUCTION

   The traffic of human beings to the United States has a long and sordid history.(1) Although slavery and indentured servitude are now illegal,(2) the law has not stopped this country s demand for cheap labor.(3) Because workers with legal status in the U.S. must be paid the federally-mandated minimum wage, illegal immigrants provide the cheap labor that American businesses believe they need to stay competitive.(4) In the last few decades, international trafficking rings have profited from this illicit American market by smuggling migrants from all over the world to the U.S.(5) Driven by social upheaval, persecution, or poverty, people endure treacherous journeys and incur huge debts for passage to the prosperous shores of the United States.(6) Human smuggling is thus "both an international migration phenomenon and a transnational crime problem."(7)

   Each year illicit networks move an estimated four million people through organized smuggling rings that operate worldwide.(8) In the past decade, human smuggling has grown from a relatively small-scale intra-regional movement into a major global business.(9) The People s Republic of China(10) is a major source of smuggled migrants.(11) Experts estimate that 50,000 Chinese are smuggled into the United States each year(12) and that the Chinese human trade yields an estimated annual profit of three billion dollars.(13)

   When transnational crime intersects with U.S. immigration law, the result poses serious ethical and normative legal questions. This Comment argues that the economic and cultural divide between the U.S. and China has resulted in misguided American policies that have exacerbated the Chinese migrant smuggling problem. The Comment begins in Part II by tracing the history of human smuggling from China and summarizing the current state of the problem.(14) Part III discusses current approaches to the Chinese human trade and describes the socioeconomic forces driving Chinese migration.(15) Part IV explains how American aversion to China's family planning programs resulted in the 1996 Amendment to the U.S. refugee law that recognizes opposition to "coercive population control programs" as a basis for political asylum.(16) Part V calls for the repeal of this amendment because it is culturally biased, facilitates human smuggling from China, and contradicts traditional and reformative ideals of asylum law and refugee policy.(17)

2. CHINESE MIGRANTS SMUGGLED TO THE UNITED STATES

   Chinese human smuggling is run by "big snakeheads" who control transnational networks of "small snakeheads," enforcers, and debt collectors.(18) With close ties to local Chinese officials, many big snakeheads are seen as "philanthropists" because they contribute large sums to improve their home villages.(19)

   Most smuggled migrants never meet these big snakeheads, but deal solely with their lower-level "employees.(20) Little snakeheads are usually local Chinese people who recruit customers and collect down payments.(21) Numerous middlemen guide emigrants from one transit point to the next and enforcers are hired to control passengers en route to the U.S.(22) After the migrants arrive in the United States, debt-collectors lock them in safe houses until their fees are paid.(23)

   Although big snakeheads may hire gang members as debt-collectors, there is no evidence that "organized crime" controls the Chinese human smuggling business.(24) Rather, the Chinese human trade is run by clandestine "entrepreneurs" whose underlings commit serious crimes in the course of their illicit business.(25)

   Lured by the prospect of a richer life in the United States, Chinese emigrants may endure treacherous journeys by air, sea and land in abhorrent conditions made worse by the violent abuse of enforcers.(26) Smugglers charge from $30,000 to $60,000 per person for their services.(27) To ensure that the snakeheads will successfully deliver them to their destination, Chinese migrants typically make only a down payment of $1,000 to $3,000 before their departure.(28)

   Contrary to many reports that Chinese migrants are forced to work as indentured servants in American restaurants or sweatshops to pay off the smugglers, relatives or friends of the migrants (their sponsors) will pay their debts as soon as the migrants arrive in the U.S.(29) Debt-collectors use brutal tactics to insure this immediate, full payment.(30) If a migrant's debt has not been paid within a week of their arrival, debt-collectors may force the migrant to call his or her sponsor and then torture the victim over the phone to shock their relatives into immediately sending the money.(31)

   1. ORIGINS AND REASONS FOR LEAVING

      The majority of smuggled Chinese migrants come from the southern coastal province of Fujian.(32) Since the late 1980s, smuggling networks have brought tens of thousands of Fujianese to the U.S.(33) Lying along Mainland China's side of the Taiwan Straits, Fujian is a natural gateway for international trade and the province has a maritime tradition dating back to the 15th century.(34) Fujian was also the birthplace of San Lian Hui, the original Chinese Triad, and a center of maritime smuggling.(35) During the tumultuous collapse of the Qing dynasty in the late 19th century, thousands of Fujianese fled chaos and poverty to migrate overseas.(36) When Deng Xiaoping embraced market-oriented economic reforms in the 1980s, contact and trade between Fujian and Taiwan increased.(37)

      The main source of Fujianese migrants is the area surrounding Fuzhou City in the northeastern corner of Fujian province.(38) Several villages in this area are inhabited mostly by elderly couples caring for grandchildren whose parents are in the U.S., and many families are financially dependent on their overseas relatives.(39)

      Although economics are a clear "push" factor behind Chinese migration to the United States,(40) a subtler and more pervasive force is the toll that official corruption and arbitrary abuse of power wreak on every level of Chinese society.(41) One expert argues that official corruption coupled with the abrupt

      decentralization of China's economy could lead to massive social unrest that would drastically increase the number of Chinese migrants seeking refuge in the United States.(42) Given Fujian's distance (more than 1,000 miles) from China's capital Beijing, Paul J. Smith predicts that the weakening grip of the Chinese Communist Party will increase emigration as local officials simply ignore government attempts to crack down on human smuggling.(43)

      Although it is now easier for educated, wealthy or professional Chinese to travel abroad, it is still very difficult for the average Chinese citizen to get the documents needed to leave China.(44) Unlike the United States, China does not allow its citizens to freely apply for passports. Chinese people must apply for a passport through their danwei (work unit) or local village officials.(45) To come to the United States they must then procure a visa from the U.S. Embassy in Beijing or the Consulate in Guangzhou.(46) Only after they have both a valid passport and visa can Chinese citizens then apply to the Public Security Bureau for the final document needed to leave--an exit permit.(47) Bureaucratic hurdles face the Chinese at every step in this process.(48)

      Given these obstacles, it is no surprise that many Fujianese turn to the more accessible, albeit more expensive, services of the smugglers. For a handsome fee, smugglers will procure fake travel documents and passage to the United States.(49) Lax legal enforcement and entrenched corruption facilitate this criminal activity in China and several transit countries.(50) Local Chinese officials themselves may contract with snakeheads to smuggle their family members out of China for a discounted price.(51) Other authorities may profit from selling their official passports to emigrants eager to pay an inflated price.(52)

   2. TRANSIT AND ARRIVAL

      Illegal immigrants from Fujian come to the United States by sea, land, air--or any combination thereof--based on how much they can afford to pay up front.(53) Regardless of how they arrive, emigrants' journeys are replete with danger, fear and suffering.(54) The trip from China to the U.S. can take anywhere from a few weeks to over a year and may pull migrants through several transit countries in Southeast Asia, Europe, and South or Central America.(55) At every point in their journeys, emigrants are vulnerable to the violent abuse of snakeheads and enforcers.(56)

      The human cost of these crimes first came to worldwide attention in June, 1993, when the freighter Golden Venture ran aground off the New York coast.(57) Nearly 300 Chinese people were packed into 800 square feet of cargo space and had been at sea for more than three months with little water or food, no sanitary facilities, no life preservers and only a single ladder to escape the hold.(58) Pandemonium erupted on board when the ship grounded.(59) As Coast Guard and police officials boarded the ship, nearly 200 passengers fled, leapt blindly into the water and swam to shore while clutching plastic bags with their belongings.(60) Many of these people suffered hypothermia from swimming in the freezing water.(61) Ten of the migrants died while trying to reach the shore.(62)

      In the early 1990s thirty-two ships carrying a total of over 5,000 Chinese migrants destined for the U.S. were apprehended throughout Asia and South America.(63) Although sea smuggling decreased after the post-Golden Venture crackdown, thousands of Chinese people continue to be smuggled across the ocean in decrepit fishing boats.(64)

      Although the horrific conditions of smuggling ships capture more media attention, most Chinese migrants arrive by air or land.(65) One INS official claims that "at any given time, thirty thousand Chinese are stashed away in safe houses around the world, waiting for entry."(66) In 1998 the INS exposed a criminal syndicate responsible for...