Lian, Yi-Tu v. Ashcroft, John

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1532
YI-TU LIAN,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A78 859 704.
____________
ARGUED JUNE 15, 2004—DECIDED AUGUST 12, 2004
____________
Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
POSNER, Circuit Judge. Lian, a Chinese citizen, asks us to
set aside an order issued by an immigration judge and
affirmed without opinion by the Board of Immigration
Appeals removing him to China. He claims that sending
him back to China would violate Article 3 of the Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85 (1984). Adopted
as federal law by section 2242(a) of the Foreign Affairs
Reform and Restructuring Act of 1988, 8 U.S.C. § 1231,
2 No. 03-1532
Article 3 forbids expelling a person to “a country in which
there are substantial grounds for believing the person
would be in danger of being subjected to torture.” An im-
plementing regulation defines “substantial grounds for
believing the person would be in danger of being subjected
to torture” to mean that he “is more likely than not to be
tortured in the country of removal.” 8 C.F.R. § 208.16(c)(4);
see Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004);
Deborah E. Anker, Law of Asylum in the United States 510-11
(3d ed. 1999). Torture is defined as “any act by which severe
pain or suffering, whether physical or mental, is inten-
tionally inflicted on a person,” by or with the acquiescence
of an official, for various purposes, including punishment.
8 C.F.R. § 208.18(a)(1); see, e.g., Pelinkovic v. Ashcroft, 366
F.3d 532, 541 (7th Cir. 2004).
Lian applied for and received a Chinese passport in 2001.
His intention in doing so was to emigrate, for reasons un-
necessary to consider. He paid “snakeheads,” as they are
called, thousands of dollars (given him by his father) to
smuggle him into the United States. After a roundabout
sequence of flights arranged by the snakeheads, Lian ar-
rived at O’Hare Airport in February of 2002, minus his
passport, which he claims the snakeheads had taken from
him. He was promptly arrested, lacking as he did valid
travel documents, and ordered returned to China.
At first glance it is difficult to see how he can anticipate
any untoward consequences from returning to China. He
had, after all, a valid passport, which allowed him to travel
outside the country. He no longer has a passport, but it is
common enough for travelers to lose their passports, and
China doubtless has a record of having issued it to him.
However, it turns out that China may well discover (indeed,
may have discovered already) that Lian is to be forcibly
returned to China because he entered the United States
No. 03-1532 3
illegally. No country can be forced to accept a deported alien,
so whenever the U.S. government wants to deport (“remove,”
it is now called) someone, a travel document must be ob-
tained from the alien’s embassy or consulate that will allow
him to reenter his country. 6 Charles Gordon, Stanley
Mailman & Stephen Yale-Loehr, Immigration Law and
Procedure § 72.08[2][b][ii] (2004).
Well, so what? The “so what” is that it is illegal for a Chinese
citizen to emigrate without the permission of the Chinese
government, British Home Office Report on Asylum in the UK,
China Extended Bulletin 4/2002, Looking for the Golden Country:
Illegal People—Traffickers (Including Returns to China) ¶ 2.16
(Aug. 2002), http://www.ind.homeoffice.gov.uk/ind/
en/home/i/country-information/bulletins/
china_extended_bulletin4.html, which apparently Lian did
not have (more on this later). So when the Chinese
government is informed (if it hasn’t been already) that the
United States wants to return Lian to China because he
entered the United States without proper documentation, it
may smell a rat, look for a record that Lian had permission to
emigrate, find that he didn’t, and infer that he emigrated
without permission. Of course the fact that Lian was being
deported wouldn’t prove that he had emigrated; he might
just have failed to obtain a visa to visit the U.S. as a tourist.
But if the Chinese government investigated, it would
discover that he had indeed emigrated; you don’t go to the
snakeheads to get a tourist visa.
The fact that Lian might be prosecuted for illegal
emigration would not in itself raise the spectre of torture or
even amount to persecution, Li v. INS, 92 F.3d 985, 988 (9th
Cir. 1996) (a separate issue—Lian has abandoned his claim
for asylum as a victim of persecution). But he submitted evi-
dence that many illegal emigrants, upon their return to
China, are detained and that detainees in China are some-
4 No. 03-1532
times tortured. Article 14 of the Law of the People’s Republic
of China on the Control of the Exit and Entry of Citizens,
http://www.novexcn.com/entry_exit_citizens.html, spe-
cifies as a sanction for illegally leaving the country
administrative detention for up to 10 days. Whether Lian
would actually be detained, if so for how long (it could, as
we’ll see, be longer than 10 days, maybe much longer), and
what would happen to him during his
detention—specifically, whether he would be tortured (for
the evidence does not indicate whether persons detained as
illegal emigrants are likely to be among those detainees who
are tortured)—and whether in sum it is more likely than not
that he will be tortured if he is sent back to China, we do not
know but need not try to determine. The immigration
judge’s conclusion that Lian is unlikely to be tortured or
even detained is vitiated by the fact that the only reasons
given by the judge for his ruling have no support in the
record.
The judge wrote quite a long opinion, but most of it is
taken up with irrelevancies, such as whether Lian had lied
when he said he didn’t know the names of all the airlines on
which he flew in his many-monthed hegira from China to
the United States. The only question presented by his claim
for relief under the Convention Against Torture is whether
he is likely to be tortured if he is sent back to China, and in
answering this question “no” the judge gave only two
reasons, neither connected with Lian’s credibility as a
witness or lack thereof. The first was that since Lian was
traveling on a valid passport, there was no reason to believe
the Chinese government would discover that he was trying
to emigrate illegally. That we know is false; and we are
surprised that an immigration judge would not know this.
The second reason the judge gave was that according to a
State Department report on China, “minors have been
No. 03-1532 5
exempt from reprisals” for attempting to emigrate illegally.
Lian was 17 when he left China. The immigration judge did
not say what he thought the age of majority is in China, but
the government in its brief notes that 22 is the minimum age
of marriage for Chinese males. The government argues that
the judge didn’t actually find that Lian was a minor, just
that he was “young.” The argument is disingenuous; the
lawyers representing the government had represented to the
immigration judge that Lian was a minor and the judge
expressed no disagreement with the government’s
representation.
It is remarkable that the question whether Lian is a minor
for purposes of criminal liability under Chinese law was left
in the air like this. Our immigration judges are, or at least
ought to be, knowledgeable about foreign countries— at the
very least they should know how to find the answers to
elementary questions of foreign law. The government’s
reference to the marriage age should have alerted the immi-
gration judge to the need for further research, since the
natural inference is that the high age of marriage is
connected to China’s “one-child” policy rather than to any
notions of criminal responsibility. Our own research reveals
that the age of adult criminal responsibility in China is only
16. Article 17 of the Criminal Code of the People’s Republic
of China, in The 1997 Criminal Code of the People’s Republic of
China: With English Translation and Introduction 38 (Wei Luo
trans. 1998). Lian was not a minor when he decamped from
China.
This is not to say that Lian has proved his case under the
torture convention. The treatment of repatriated Chinese by
their government is to a considerable extent a mystery.
According to one report, returnees who had emigrated illeg-
ally are not subjected to the published criminal laws, but
instead to guidelines that are “neibu”—a word that means
6 No. 03-1532
“internal” and refers to rules intended for circulation only
within government and Communist Party organizations.
U.S. Citizenship and Immigration Services, China: Repatriated
Illegal Emigrants (Dec. 17, 1998). This is rather ominous—
people subjected to secret law are especially likely to be mis-
treated. We have no idea what the age of majority is for
neibu purposes, but it would be unlikely, to say the least,
that a body of secret law would be scrupulous about pro-
tecting the interests of youthful offenders.
We noted earlier that it seems that an illegal emigrant un-
der Chinese law is anyone who leaves the country without
permission. According to a report by the State Department
entitled China: Profile of Asylum Claims and Country Conditions
35 (Apr. 14, 1998), permission requires not only a passport
but also an exit permit, and as far as we can tell Lian did not
have an exit permit. The Profile also says that “many”
Chinese citizens “who have entered other countries or ter-
ritories illegally,” as Lian did when he arrived in the United
States without valid travel documents, are “subjected to
lengthy administrative detention or reeducation through
labor camps.” Id. at 41. This seems another sinister example
of the operation of neibu rules. To add to the confusion, the
United Kingdom believes that “the Chinese government
does not generally mistreat returnees [who had left
illegally], unless the person has been deported to China
more than once.” Country Information & Policy Unit of the
Home Office (UK), Asylum and Appeals Policy Directorate,
China Country Report (Oct. 2003).
The State Department, relying on interviews conducted by
U.S. consular officials who regularly visit Fujian, which is
Lian’s home province—and, not incidentally, also a source
of much illegal emigration—confirms that China knows
about, and on their return questions, repatriated citizens
who left the country illegally. These returnees are generally
No. 03-1532 7
fined between the equivalent of $600 and $6,000. We don’t
know what happens to those who can’t come up with the
money, a category that may well include Lian. And recall
the statement in the State Department’s Profile that many
returnees are subjected to lengthy administrative detention
or to compulsory reeducation in forced-labor camps—this
despite Article 14’s 10-day limit. Given that returnees are
handled under neibu rules, it is not surprising that the 10-
day limit is not always honored. “Confusion over the
penalties and conditions awaiting returnees is one of the
difficulties faced by recipient countries’ governments in
returning [asylum seekers] to” China. British Home Office
Report on Asylum in the UK, China Extended Bulletin 4/2002,
supra.
China has a dismal human-rights record, and Lian (unlike
the petitioner in Wang v. Ashcroft, 368 F.3d 347, 350-51 (3d
Cir. 2004); cf. Wang v. Ashcroft, 320 F.3d 130, 144 n. 20 (2d
Cir. 2003); Pelinkovic v. Ashcroft, supra, 366 F.3d at 547)
presented evidence, none of which the immigration judge
mentioned, that, in the words of Amnesty International,
“torture is widespread and systemic” in China. Amnesty
International, Torture—A Growing Scourge in China—Time for
Action (Feb. 12, 2001), http://web.amnesty.org/library/
print/ENGASA170042001. One would expect torture to be
particularly common in places of detention that exist out-
side the ordinary legal system and are governed instead by
neibu rules (although one student of Chinese torture believes
that it is equally common in the ordinary prisons, Randall
Peerenboom, “Out of the Pan and Into the Fire: Well-
Intentioned But Misguided Recommendations to Eliminate
All Forms of Administrative Detention in China,” 98
Northwestern University Law Review 991, 1038, 1045 (2004)).
Even though hundreds of thousands of persons are confined
in forced-labor camps throughout China, the Chinese
government takes the position that these camps are not
8 No. 03-1532
prisons, and so refuses to allow inspections of them.
How one translates all this vague information into a prob-
ability that Lian will be tortured (remember the test is
“more likely than not”) is a puzzler. Maybe probability is
the wrong lens through which to view the problem. “More
likely than not” is the definition of the standard burden of
proof in civil cases (the “preponderance” standard) and
rarely is the trier of fact asked to translate it into a
probability (i.e., more than 50 percent). Maybe some strong
suspicion that Lian is at risk of being tortured if he is
returned to China would persuade the immigration
authorities to let him stay. But these are puzzles for the
immigration judge to try to unravel in the first instance, and
not a reviewing court. Niam v. Ashcroft, 354 F.3d 652, 656
(7th Cir. 2004); Hernandez-Barrera v. Ashcroft, No. 02-2513,
2004 WL 1300049 (1st Cir. June 9, 2004); Yang v. McElroy, 277
F.3d 158, 162 (2d Cir. 2002). The immigration judge failed to
give the issue a responsible analysis. That is to put it mildly.
Lian’s counsel presented a huge mass of evidence bearing
on the only issue in the case, which is whether he is more
likely than not to be tortured if he is forced to return to
China. Here is a partial list of the documents he submitted
(only a few of which we have discussed): (1) news articles
from Chinese newspapers (1996-1999) stating that
repatriated Chinese citizens (typically from Fujian province)
are jailed upon their return to China; (2) a report, published
in 2000 by Human Rights in China, on China’s
implementation of the Torture Convention that discusses
detention pursuant to “custody and repatriation” and the
prevalence of torture in the prison system; (3) a report by
Human Rights Watch on prison conditions in China in 1997
and 1998 that mentions an “endemic problem of torture and
ill-treatment in the country’s prisons and detention
facilities”; (4) an article by the Laogai Research Foundation
No. 03-1532 9
(a U.S.-based NGO that compiles information about China’s
forced labor camps) about the fate of a political activist who
was returned to China and forced to work in the labor
camps; (5) an article written by American human rights
activist Harry Wu about organ harvesting and “thought
reform” in China’s forced labor camps; (6) a list of the
forced labor camps in Fujian province; (7) an article from
the Seattle Post-Intelligencer about the punishment facing
hundreds of Chinese from Fujian Province who had been
smuggled by boat to British Columbia, when they are
returned to China; (8) an Amnesty International report on
China’s “extensive use of torture— from police to tax
collectors to birth control officials”; (9) a 1998 Washington
Post article on the number of people who have been tortured
to death by police in China; and (10) a 1995 report by
Human Rights in China that gives a prisoner’s first-hand
account of being tortured in two Chinese detention centers.
All this material (and more) was, so far as we can deter-
mine, completely ignored by the immigration judge.
The order of removal is vacated and the case remanded.
As in a number of recent cases, the inadequate performance
by the immigration judge leads us to recommend that the
case be reassigned to another immigration judge. E.g.,
Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir. 2004);
Niam v. Ashcroft, supra, 354 F.3d at 660-61; Arulampalam v.
Ashcroft, 353 F.3d 679, 688-89 (9th Cir. 2003).
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-12-04