Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Tuesday, August 28, 2007

Yang Jianli and China's Passport Law

Here's a piece by Joshua Rosenzweig of the Dui Hua Foundation on the Chinese government's issuance of a passport to the dissident Yang Jianli.

An interesting aspect of Chinese law pointed out by the article is that Chinese citizens cannot enter China without a valid passport. If the government chooses to invalidate, or refuses to renew, a Chinese citizen's passport while he is abroad, he won't be allowed back in. This is odd in a number of ways. Traditionally, a passport is a request from one sovereign to another to let the former's citizen or subject pass without let or hindrance. It's something foreign governments insist on seeing before they will let you in. But it's got nothing to do with the relationship between the citizen and her own government. To turn it into something your own government insists on seeing before it lets you in seems odd to me. At most it is convenient evidence of citizenship, but not the same as citizenship itself. (I recognize of course that few governments will let in people without valid passports simply because they claim to be citizens. You may have to wait at the border until you can prove your citizenship some other way. But typically you can't be expelled.)

One could argue, of course, that there's no reason why China's use of passports has to follow everyone else's. Still, there is Article 13 of the Universal Declaration of Human Rights, which states that "[e]veryone has the right to leave any country, including his own, and to return to his country." In short, it rejects exile as a governmental measure. It must be said that the ICCPR is a bit more ambiguous: it states that "[n]o one shall be arbitrarily deprived of the right to enter his own country[,]" suggesting that exile is permissible if imposed pursuant to due process of law. I would think that the refusal by a government ministry to issue a passport, where not preceded by a fair hearing, would be considered arbitrary under most definitions, given the high stakes involved.

When I first read Joshua's article, I thought that he must have misunderstood Chinese law regarding the entry of citizens; that surely Chinese law doesn't make the entry of its own citizens back into China contingent upon holding a valid passport, or that if it does, there's a plausible argument that such a requirement is unconstitutional. But having looked at the relevant legal texts, I must confess my intuition was wrong on both counts.

Comments welcome, especially with regard to whether I'm right about other countries not generally requiring a valid passport for re-entry of their own citizens.

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Dear Professor Clarke:

There's another interesting angle to China's passport system:

When I was recently still in law school at Univ. of Miami, I often volunteered to translate for Chinese detained on immigration violations in Florida. China is indeed quite strict about issuing passports. Chinese whose asylum applications are refused in the US (and are ordered removed) eventually have to fill out paperwork asking the PRC (in Florida it was the Houston consulate) to issue them either a passport, or more likely a Travel Document ("luxing zheng") which can only be used to enter the country from abroad.

You can read about what such documents are at:
http://newyork.china-consulate.org/chn/lszj/bzyq/hzqz/t42306.htm

There are sample photos of the new and old "Travel Documents" here:
http://newyork.china-consulate.org/chn/lszj/bzyq/hzqz/t98006.htm

In Florida, it was common for Chinese detainees to run into a brick wall when trying to obtain travel documents from their consulate in Houston so they could be removed (deported) by ICE. While some of the Chinese certainly were delaying because they didn't want to return (gave false info, etc), I believe others were honestly giving their names and personal information, and the Chinese consulate for some reason either couldn't locate their names in Chinese government records, or for whatever reason, just didn't want to issue them any travel documents. I recall one lady being angrily told on the telephone she would "never get a passport from China."

Some detainees have waited for months, or even more than a year, for the PRC consulate to finally issue a travel document. But I'm not sure if this is because the consulate people are slow... or because our own ICE people are also quite slow. For example, there was one Chinese citizen who finally filed a habeas corpus petition with the district court in Miami after the consulate failed to give her a passport or travel document for over one year (refusal by foreign governments to issue travel documents to their citizens detained on immigration violations here is a grounds for seeking release). But the very day the government was due to file its answer, she was put on a plane and sent back home, suggesting she suddenly got her travel document with effort by the US government.

Sorry that's not very much, but hope it's helpful to your inquiry

Jason Blatt
Pamir Law Group, Taipei

Posted by: Jason Blatt | Sep 19, 2007 6:19:47 PM

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