A tale of two Chinese immigrants

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The Seventh Circuit decided two immigration cases in the past month, both concerning immigrants from China. In one case, the court held that the immigrant failed to prove past, or likelihood of future, persecution, even though the asylum applicant had been harassed for suspected membership in Falun Gong.

The other applicant, however, had his order of removal reversed, even though he presented no evidence of persecution or harassment, at all, based on evidence that all Chinese who are returned after attempting to emigrate illegally may be subjected to torture.

Mei Dan Liu

The first immigrant was Mei Dan Liu, who fled China at the age of sixteen because government officials believed she was a follower of Falun Gong, a Chinese health and spiritual movement that was outlawed in 1999. In fact, she was merely selling books to supplement the family’s income, and a number of the books were associated with Falun Gong.

As a result, she was arrested, jailed, physically abused, interrogated, threatened, expelled from school, and her home was ransacked. She was held for two days, and her parents had to pay 5,000 yuan as bail.

Upon arrival at Chicago’s O’Hare Airport, she was detained, and removal proceedings were begun. The immigration judge found that her testimony was not credible.

The Board of Immigration Appeals affirmed, concluding that, even if Mei Dan’s testimony was true, she failed to demonstrate persecution, or a well-founded fear of future persecution.

Mei Dan petitioned for review, but the Seventh Circuit affirmed on August 17, in a decision by Judge Joel M. Flaum.

The court found that her experiences in China did not rise to the level of past persecution. The court noted, “Here, Mei Dan’s detainment was relatively short. As physical brutality goes, hair-pulling and pushing rank on the less serious end. The search and ransack was a singular event and it is unclear if the officials caused any serious, permanent damage to her home. Taken as a whole, it was not improper for the BIA to determine that these and the other incidents of which Mei Dan complained are more akin to abusive or harassing treatment than persecution.”

The court acknowledged that Mei Dan’s treatment in China was “undoubtedly deplorable,” but found it did not rise to “persecution.”

The court found that Mei Dan’s youth does not change the holding, although it acknowledged that age can be a factor in asylum claims, citing Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir.2004).

The court reasoned, “There may be situations where children should be considered victims of persecution though they have suffered less harm than would be required for an adult. But this is not such a case. Though a minor, Mei Dan was near the age of majority — she was 16 — at the time the events took place.

Whatever slight calibration this may warrant in our analysis is insufficient to transform her experiences with the Chinese authorities from harassment to persecution.”

Finally, the court held that Mei Dan failed to show a well-founded fear of future persecution if returned to China, concluding, “While the BIA was without basis to suggest that government officials never actually believed Mei Dan was a follower of Falun Gong, a legitimate question remains regarding whether government officials continue to impute membership in Falun Gong to Mei Dan. After the search of her apartment, Mei Dan suffered no further consequences before leaving China three months later. Indeed, using her own passport, she was allowed to leave China without any problems. The record simply does not reflect that the government continues to impute Falun Gong membership to Mei Dan, thus we uphold the BIA’s determination that Mei Dan failed to demonstrate a fear of future persecution on that basis.”

Accordingly, the court affirmed Mei Dan’s removal order.

Yi-Tu Lian

The second Chinese immigrant, Yi-Tu Lian, on the other hand, presented no evidence of past persecution.

Yi-Tu Lian applied for and received a Chinese passport in 2001. His intention in doing so was to emigrate. He paid “snakeheads,” as they are called, thousands of dollars to smuggle him into the United States. After a roundabout sequence of flights arranged by the snakeheads, Lian arrived at O’Hare Airport, without his passport, which he claims the snakeheads had taken from him.

Lian was promptly arrested, for lacking valid travel documents, and ordered returned to China. Lian appealed, and the Seventh Circuit reversed on Aug. 12 in a decision by Judge Richard A. Posner.

The court concluded that the immigration judge failed to consider whether Lian would be tortured upon return to China as punishment for attempting to illegally emigrate to the United States.

Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (1984) was adopted as federal law, and codified at 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.”

“Substantial grounds” is defined as “more likely than not to be tortured in the country of removal,” 8 C.F.R. 208.16(c)(4), and torture is defined as “any act by which severe pain or suffering, either 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).

It is illegal to emigrate from China without the permission of the government, and the specified sanction is administrative detention for up to 10 days.

The court declined to determine whether it is more likely than not that Lian will be tortured if sent back to China, however, because it found that the reasons given by the immigration judge, as to why Lian would not be tortured, have no support in the record, and the immigration judge did not consider the evidence of torture.

The court wrote, “The [immigration] 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 and the age of adult criminal responsibility in China is 16, however. Thus, the immigration judge’s finding has no basis.

As noted, the court did not find that it was more likely than not that Lian would be tortured upon return, but noted that the reason is that the treatment of repatriated Chinese is “to a considerable extent a mystery.”

However, according to one report, returnees who emigrate illegally are not subjected to the published criminal laws, but instead to guidelines that are “neibu” — a word that means “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).

The court remarked, “This is rather ominous — people subjected to secret law are especially likely to be mistreated. 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 protecting the interests of youthful offenders.”

The court added that, according to a report by the State Department entitled China: Profile of Asylum Claims and Country Conditions 35 (Apr. 14, 1998), “‘many’ Chinese citizens ‘who have entered other countries or territories 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.”

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Furthermore, the State Department, relying on interviews conducted by U.S. consular officials confirms that “China knows about, and on their return questions, repatriated citizens who left the country illegally. These returnees are generally 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.”

Noting that China has a “dismal human-rights record,” the court added, “One would expect torture to be particularly common in places of detention that exist outside the ordinary legal system and are governed instead by neibu rules.”

Returning to the central question in the case, the court remarked, “How one translates all this vague information into a pro
bability 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.”

Finding that 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,” but the immigration judge failed to consider that evidence, the court vacated the order of removal, and remanded the case for proper consideration.

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David Ziemer can be reached by email.