Overview of INA: Act 212 (a)(3)(B)

in relation to the functioning of the

ROC’s Ministry of National Defense
Taiwan

 including its General Staff Headquarters, Army, Navy, Air Force,
Combined Services Forces, Armed Forces Reserve Command,
Coast Guard Command, Military Police Command, etc.
military forces

There are TWO GROUNDS of inadmissibility:

• INA § 212(a)(3)(B)
• INA § 212(a)(3)(F)

INA § 212(a) Classes of Aliens Ineligible for Visas or Admission

Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

* * * *

(3) (B) Terrorist Activities

(i) In General

Any alien who—

(I) has engaged in a terrorist activity;

(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));

(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity:

(IV) is a representative (as defined in clause (v)) of —

(aa) a terrorist organization (as defined in clause (vi)); or
(bb) a political, social, or other group that endorses or espouses terrorist activity;

(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);

(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;

(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;

(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or

(IX) is the spouse or child of an alien who is inadmissible under the subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years,

is inadmissible.

An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for the purposes of this Act, to be engaged in a terrorist activity.

(ii) Exception

Subclause (VII) of clause (i) does not apply to a spouse or child—

(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or

(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

(iii) Terrorist Activity Defined

As used in this Act, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any— (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.

(iv) Engage in Terrorist Activity Defined

As used in this Act, the term “engaged in terrorist activity” means, in an individual capacity or as a member of an organization—

(I) to commit or incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

(II) to prepare or plan a terrorist activity;

(III) to gather information on potential targets for terrorist activity;

(IV) to solicit funds or other things of value for—

(aa) a terrorist activity;
(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not have reasonably known, that the organization was a terrorist organization;

(V) to solicit any individual—

(aa) to engage in conduct otherwise described in this subsection;
(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not have reasonably known, that the organization was a terrorist organization; or

(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training—

(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such organization; or
(dd) or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

(v) Representative Defined

As used in this paragraph, the term “representative” includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

(vi) Terrorist Organization Defined

As used in this section, the term “terrorist organization” means an organization—

(I) designated under section 219;
(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or
(III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).

INA § 212(a)(3)(F) Association with Terrorist Organizations

Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.

Comments:

(1) In the Overview of 18 USC 2331, analysis was offered to show that the Taiwan governing authorities, via their military forces, have committed, and do continue to commit criminal acts and war crimes.  These should fully qualify the ROC’s  Ministry of National Defense to be classified as a terrorist organization.  In particular, the forced conscription of USA-Taiwan dual nationals to serve in the ROC military forces is a violation of the Taiwan Friendship, Commerce, and Navigation Treaty, hence is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State).  Such conscription into the military forces of this “non-recognized government-in-exile” carries criminal penalties for non-compliance. Under this analysis, such conscription is clearly the forced solicitation of individuals for membership in a terrorist organization.

(2) The Shanghai Communique of 1972 and the other two joint USA-PRC Communiques clearly state that there is one China and the PRC is the lawful government of China.  The Taiwan governing authorities call themselves the “Republic of China”.  Their maintenance of Army, Navy, Air Force and other military forces is primarily with the intent to repel a PRC takeover of Formosa and the Pescadores, in other words to compel the PRC authorities to deny the One China premise.  Hence, the purpose of ROC military conscription is easily seen as the seizing or detaining, and threatening to kill, injure, or continue to detain, another individual (i.e. ROC military conscripts) in order to compel a third person or governmental organization (i.e. the PRC) to do or abstain from doing any act (i.e. takeover of Formosa and the Pescadores) as an explicit or implicit condition for the release of the individual seized or detained.  Many most military analysts agree that without the threat of PRC invasion, the Taiwan regime would only need modest self-defense forces, similar to those of Japan. Under such a scenario, Taiwan could probably use all volunteer forces; all males currently forced to serve could be “released”. 

With the recognition that the Taiwan cession is an independent customs territory under USMG, and hence an insular area of the USA, the United States military could directly handle the defensive needs of Formosa and the Pescadores, and the ROC’s Ministry of National Defense could be dismantled outright. 

(3) Taiwan’s military forces are known to have biological agents, chemical agents explosives, firearms, other weapons, dangerous devices, including missiles, and to use (or threaten to use these) with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.  The examples of the Taiwan government’s assertions of “sovereignty” over the Spratly Islands and the Tiaoyutai Islands, with the threat to back up these claims with military action, are clear examples of intent to endanger the safety of individuals and to cause substantial damage to property.  Additionally, when the officials of the ROC’s Ministry of National Defense have discussions of preparations for military actions in this regard, they are conspiring to prepare or plan a terrorist activity. The local Taiwan press has continued to report such discussions in the period of 2003 -- 2009, especially in regard to disputed fishing rights in these areas.

(4) The ROC’s Ministry of National Defense is known to collect intelligence on military installations and location of military hardware in the PRC.  Since the Constitution in use in Taiwan has always been interpreted to hold that mainland China is part of the “Republic of China,” and the Taiwan MND operates under this premise, the collection of PRC military intelligence can only be viewed as continuing efforts to gather information on potential targets for terrorist activity, with the intent to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity.

(5) The ROC’s Ministry of National Defense is of course supported by the taxpayers of Taiwan, and the budget of the MND is passed by the Legislative Yuan.  To the extent that the actions of Taiwan’s military forces amount to terrorist activities, of course the ROC’s Ministry of National Defense is engaged in actions to solicit funds or other things of value for a terrorist activity.  It is no secret that the MND has a large budget.