An Alien Obstructs His Deportation? Prosecute Him

By Dan Cadman on November 21, 2019

My colleague Art Arthur recently posted a blog pointing out the one-sided bias implicit in a recent Washington Post (WaPo) story about an overstayed alien from Uzbekistan, Bakhodir Madjitov. He has been in detention a considerable period of time because he has done everything he can to render "due process" meaningless by flouting a final order of removal issued by an immigration judge, and thereafter by physically refusing to allow himself to be boarded on a plane for repatriation — a point blithely overlooked, of course, by our friends at WaPo, despite its masthead claim that "Democracy Dies in Darkness."

It's worth noting a few things about this Uzbek, and Uzbekistan generally — call them outliers if you wish, though in many ways they cut to the heart of the issue, and what's wrong with our immigration system today.

First, we should note that Uzbekistan has been a hotbed of Islamic fundamentalism and has bred its share of jihadists and terrorists, including in the United States where, in 2017, an Uzbek resident alien drove into a crowd in New York City with a rented van, resulting in 12 injuries and eight deaths. Is Madjitov a fundamentalist? His politico-religious views aren't known from what's been discussed, but ask yourself how the public would react if federal immigration authorities let this man out, despite being an obstreperous scofflaw ordered deported, after which he committed some heinous act. To say they would be vilified for rank stupidity is to seriously understate the matter.

Second, although Uzbekistan is not officially recognized as a recalcitrant country by Immigration and Customs Enforcement (ICE) where it comes to issuing the documents needed to repatriate its citizens who have been ordered deported, that doesn't mean it's a particularly quick process either. That would be especially true when the alien himself refuses to cooperate with the requisite processes, such as with interviews by Uzbek government officials or providing previously issued passport or identity documents to those officials as a way to confirm his nationality.

Why, then, should we in the public feel a scintilla of sympathy for a man who flees to avoid a judge's order after it's issued? In the criminal justice system, a fugitive warrant would be issued. There is no exact equivalent in the immigration context, but once a final order of removal has been rendered, a warrant of deportation is issued. This was done, which is what gave ICE agents the authority to seek him out and detain him in order to effect that order, all in accordance with the law.

Third, that ICE hasn't been able to effectuate the removal speaks more to the ugly confluence of his scofflaw attitude and the sensitivities of placing detainees on civil aviation flights in these post-9/11 days. It has always been true that an airplane captain retains final authority over whether or not to allow a prisoner on board his flight; after all, he is responsible for the overall safety of everyone on the aircraft, and safety is paramount. But captains are hypersensitive these days — and for good reason — about their willingness (or not) to permit boarding of a prisoner who balks and fights his way to the gangway. Generally, they're going to exercise their right to deny boarding. It's as simple as that, and who can blame them? Thus it is that, as the WaPo article tells us, Madjitov was able to defeat ICE's attempt to deport him by air in June of this year.

Fourth, if you're not already swayed, consider the only realistic repatriation alternative that this leaves open to ICE, namely to charter a jet to fly this individual back to Uzbekistan — and, if there are any other Uzbeki deportees, or others in the neighboring countries, perhaps they can try to make it somewhat more cost-efficient by adding them to the manifest. The cost of such a flight? In the tens of thousands of taxpayer dollars, your dollars. How do you feel about ponying up such money every time a recalcitrant alien kicks his heels in and refuses to cooperate? Not a very appealing proposition is it, when there are so many other good uses to which it might be put. It would also bankrupt ICE in short order if they were to adopt this approach every time an alien balks — and if they did, more and more aliens would see it as in their interest to fight removal.

What is to be done, then? Well, the Post article makes much ado about Madjitov's lack of a criminal record. Given his history of obstructing his removal, this is easily remedied. If he is going to eat up unconscionable amounts of official effort and taxpayer money, then it's time — past time, in fact — to charge him criminally in a federal court of law. Section 1253 of Title 8 of the United States Code says this:

(a) Penalty for failure to depart.

(1) In general. Any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 1227(a) of this title, who—

(A) willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes, or if judicial review is had, then from the date of the final order of the court,

(B) willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure,

(C) connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien's departure pursuant to such, or

(D) willfully fails or refuses to present himself or herself for removal at the time and place required by the Attorney General pursuant to such order,

shall be fined under title 18, or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 1227(a) of this title), or both.

Pretty straightforward stuff. Perhaps spending some quality time in a federal penal institution would cause Madjitov to rethink the wisdom of his approach to cooperating with ICE agents who attempt to lawfully effect his removal.