Yi-Tu Lian v. Ashcroft, No. 03-1532.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPosner
Citation379 F.3d 457
PartiesYI-TU LIAN, Petitioner, v. John D. ASHCROFT, Respondent.
Docket NumberNo. 03-1532.
Decision Date12 August 2004
379 F.3d 457
YI-TU LIAN, Petitioner,
v.
John D. ASHCROFT, Respondent.
No. 03-1532.
United States Court of Appeals, Seventh Circuit.
Argued June 15, 2004.
Decided August 12, 2004.

H. Raymond Fasano (argued), Madeo & Fasano, New York, NY, for Petitioner.

George P. Katsivalis, Chicago, IL, Blair T. O'Connor (argued), Washington, DC, for Respondent.

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

Page 458

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, 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 implementing 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 intentionally 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 unnecessary 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 arrived 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 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 obtained 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/o/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

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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 evidence that many illegal emigrants, upon their return to China, are detained and that detainees in China are sometimes 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, specifies 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...

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22 practice notes
  • Huang v. I.N.S., No. 02-4602-AG.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 25, 2006
    ...handled Wu's application. See, e.g., Wang v. Attorney Gen. of the United States, 423 F.3d 260, 271 (3d Cir.2005); Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 462 (7th Cir.2004); Arulampalam v. Ashcroft, 353 F.3d 679, 688-89 (9th The petition for review is therefore GRANTED. We AFFIRM the decision......
  • Mema v. Gonzales, No. 05-2570.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 11, 2007
    ...and remanding where the immigration judge ignored evidence that the applicant was persecuted based on ethnicity); Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004) (reversing and remanding where the immigration judge ignored a long list of relevant evidence); Niam v. Ashcroft, 35......
  • Gjerazi v. Gonzales, No. 04-2344.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 30, 2006
    ...F.3d at 571; Tolosa v. Ashcroft, 384 F.3d 906, 909-10 (7th Cir.2004) (discussing IJ's failure to consider key evidence); Lian v. Ashcroft, 379 F.3d 457, 461-62 (7th Cir.2004) (highlighting all relevant evidence ignored by the IJ). In concluding that the attacks on the Gjerazi family were no......
  • Apouviepseakoda v. Gonzales, No. 05-3752.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 2, 2007
    ...v. Ashcroft, 366 F.3d 554, 557, evidentiary material "was . . . completely ignored by the immigration judge," Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 462 (7th This case does not rise to that level. The IJ offered a number of discrete reasons for his adverse credibility finding, and he pointed......
  • Request a trial to view additional results
22 cases
  • Huang v. I.N.S., No. 02-4602-AG.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 25, 2006
    ...handled Wu's application. See, e.g., Wang v. Attorney Gen. of the United States, 423 F.3d 260, 271 (3d Cir.2005); Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 462 (7th Cir.2004); Arulampalam v. Ashcroft, 353 F.3d 679, 688-89 (9th The petition for review is therefore GRANTED. We AFFIRM the decision......
  • Mema v. Gonzales, No. 05-2570.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 11, 2007
    ...and remanding where the immigration judge ignored evidence that the applicant was persecuted based on ethnicity); Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004) (reversing and remanding where the immigration judge ignored a long list of relevant evidence); Niam v. Ashcroft, 35......
  • Gjerazi v. Gonzales, No. 04-2344.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 30, 2006
    ...F.3d at 571; Tolosa v. Ashcroft, 384 F.3d 906, 909-10 (7th Cir.2004) (discussing IJ's failure to consider key evidence); Lian v. Ashcroft, 379 F.3d 457, 461-62 (7th Cir.2004) (highlighting all relevant evidence ignored by the IJ). In concluding that the attacks on the Gjerazi family were no......
  • Apouviepseakoda v. Gonzales, No. 05-3752.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 2, 2007
    ...v. Ashcroft, 366 F.3d 554, 557, evidentiary material "was . . . completely ignored by the immigration judge," Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 462 (7th This case does not rise to that level. The IJ offered a number of discrete reasons for his adverse credibility finding, and he pointed......
  • Request a trial to view additional results

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