Thursday, August 6, 2015

The New York Times recently carried a story confirming a long-standing rumor that Ling Wancheng, brother of the toppled top aide to China’s former top leader, Hu Jintao, was living in the United States. Apparently China wants him back in China—not surprisingly, given his intelligence value. Presumably—apparently it’s all unofficial so far—China is telling the US that he’s wanted on corruption or other criminal charges. This has led to quite a bit of discussion on the question of whether the US could or should send Ling back. (This blog post is a slightly expanded and more legally technical version of my contribution to a discussion at the Asia Society’s ChinaFile site.)

I think it might be useful to lay out some of the legal issues involved here. First of all, let’s distinguish between extradition and deportation. Extradition would take place pursuant to a treaty between China and the US, and critically would not require a finding by US authorities that Ling had violated any US law (or even Chinese law). Nor would any other legal basis for sending Ling back (aside from the treaty) be required. All that is necessary would be for China to make a case—presumably meeting some standard of plausibility—that Ling had violated Chinese law and should be returned to face trial. But for the very cogent reasons discussed by Jerome Cohen in his contribution, there is no extradition treaty between China and the US.

Thus, if the US government wants to keep Ling, it has no obligation to send him back. This raises two issues: (1) Should it want to send Ling back? (2) Assuming it wants to send him back, can it?

On the first issue, one of the points raised in this discussion has been the idea that sending Ling back will promote cooperation by China in US law enforcement. I’m dubious about this. In a wide range of fields, China has over the years been consistently and highly uncooperative with both the US and other countries in their efforts to investigate unlawful activities in China. The Securities and Exchange Commission and the Public Company Accounting Oversight Board have experienced years of frustration in seeking Chinese cooperation in their efforts to investigate securities fraud and accounting malpractices involving Chinese firms and citizens. Just two months ago, an Associated Press report described the “legal firewall” shielding Chinese parties from foreign investigations, in this case Italian attempts—utterly stonewalled by China—to investigate the flow of $4.9 billion in laundered money to China. And despite its denunciations of hacking and denials of government involvement, the Chinese government has refused to help foreign authorities bring Chinese hackers to book. China doesn’t need to do more than anyone else, but it does need to offer the degree of cooperation that’s normal in the international community before it can reasonably ask others to cooperate with it. If the US government has good policy reasons for wanting to send Ling back, so be it, but a vain hope that it will induce greater cooperation by China in a range of law enforcement activities should not be among them.

The second issue is whether the US government can send Ling back, assuming it wants to.

The short answer is maybe. There are three general types of legal basis. (There may be others.) The first is contained in 8 USC § 1227(a)(4)(C)(i), which states that “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” There are some exceptions to this deportation power but they don’t seem applicable to Ling’s case.

The second legal basis would be in a violation by Ling of immigration law in connection with his entry into the United States. This is not of course to say that Ling did violate immigration law when he entered the United States—I have no knowledge of the circumstances under which he came here—but if, for example, he entered on a non-immigrant visa without the intention, at the time of entry, to depart when the time came, that would be a violation of immigration law and likely grounds for deportation, as would any other kind of false statements (at least if they were material) in the visa application process.

The third legal basis—which I use as a catch-all category—would be the commission of various acts (for example, terrorism and other crimes) that Congress has deemed grounds for deportation. Again, I have no reason to believe that Ling has committed any such acts.

The point, then, is that the US government operates under some constraints where deportation is involved. It cannot just decide to deport and then deport. There must be a statutory basis.

Let us suppose, then, that the US government relies on deportability on foreign policy grounds—the first basis above, which does not depend on any violation of US law by Ling. That is still not the end of the story. There is a further complication posed by the fact that Ling could raise various bars against deportation. He could, for example, claim that he is the subject of political persecution and seek asylum on those grounds. Such a claim would not, of course, necessarily succeed.

A second and more plausible claim—since it relies importantly on conditions in China and not much on Ling’s personal characteristics—would be that he was in danger of being tortured if returned to China. The United States is a party to the United Nations Convention Against Torture (CAT). The CAT is one of the reasons that the Canadian courts made it so difficult for Canada to send Lai Changxing back to China. Art. 3 says, "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The US has declared that it interprets this to mean "more likely than not."

The status of the CAT under US law is complicated, but the long and the short of it is that Ling can raise a claim of possible torture to try to avoid getting sent back to China. (As with all claims, to say he can raise it is not to say he can raise it successfully.) In 1998, Congress passed legislation intended to incorporate the rules of the CAT, which the US had ratified, into US law, precisely because the US had specifically declared upon ratification that the CAT would not automatically become part of US law. Congress specifically directed the executive to enact regulations implementing the US’s obligations under the CAT, and to use as definitions of various terms the definitions of those terms in the CAT. But Congress also added that any regulations so enacted would not be reviewable by courts. In other words, the executive branch would have the last word on what compliance with CAT meant. Other countries might disagree, but that wouldn’t affect anyone’s rights under US law. Thus, Ling could attempt to resist deportation by asserting whatever rights he has under the relevant Department of Homeland Security (DHS) regulations designed to implement the CAT.

Even assuming he can successfully make a case under those regulations, however, there is still a final question: does the Secretary of State’s power to deport under 8 USC § 1227 trump an alien’s right not to be deported under the relevant DHS regulations implementing the CAT? Who wins in case of a conflict? The same conflict could crop up if Ling seeks asylum on the grounds of political persecution. I do not know the answer under US law, but it might well be different from the answer under international law.

Finally, let me caution readers that I am not an expert in this area of law, and would welcome correction where I have got it wrong.

https://lawprofessors.typepad.com/china_law_prof_blog/2015/08/should-the-united-states-send-ling-wancheng-back-to-china-could-it.html