Supporting the Snakeheads: Human Smuggling from China and the 1996 Amendment to the U.S. Statutory Definition of "Refugee."

By Kung, Cleo J. | Journal of Criminal Law and Criminology, Summer 2000 | Go to article overview

Supporting the Snakeheads: Human Smuggling from China and the 1996 Amendment to the U.S. Statutory Definition of "Refugee."


Kung, Cleo J., Journal of Criminal Law and Criminology


I. 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)

II. 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. …

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