Yi-Tu Lian v. Ashcroft, 03-1532.

• Citation: 379 F.3d 457
• Decision Date: 12 August 2004
• Docket Number: No. 03-1532.,03-1532.
• Parties: YI-TU LIAN, Petitioner, v. John D. ASHCROFT, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

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 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 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 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 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 government's lawyers 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 immigration 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...