Case History: The Complications Once Deportation Is Ordered

By David North on January 31, 2012

A recent Board of Immigration Appeals decision -- rejecting asylum claims from a Chinese couple – shows how complicated it can be to move from a decision that an alien is in illegal status, to the alien's actual deportation. Many of the complications, however, can be seen only by reading between the lines.

The couple, identified only as DX, and YZ, were apparently both well-to-do, given their travel history, and were apparently in the hands of sophisticated smugglers and later a sophisticated American lawyer. This is not the first time we have heard of illegal entry of Chinese through Belize, a small and corrupt Central American nation, as mentioned in an earlier blog, in which we noted that a Belize tourist visa for a Mainland Chinese costs US$6,000.

At some time before May 2006, when there was a hearing before a U.S. immigration judge, the couple arrived in Belize, and paid a middleman to bribe others to obtain for them what appeared to our courts to be genuine local residency permits.

He secured work in Belize, she did not. Then each of them, using their Belizean documentation, obtained a tourist visa to the U.S., and each of them entered the U.S., and then returned to Belize. Later each made a subsequent entry to the U.S.

Then they applied for asylum in the U.S. Simplifying their history in the immigration courts, both were, five years later, found to be removable by BIA, largely on the grounds that they had obtained "firm resettlement" in a third country, Belize. Earlier the male had been ordered removed to Belize by the immigration judge, but he was granted "withholding of removal" to China.

Their San Francisco attorney tried to argue to the BIA that since they had obtained their Belize papers by fraud, they had not been "firmly resettled" there, and should be granted asylum in the U.S. But the BIA (citing precedents) denied the asylum petitions, ruling among other things, that a fraudulently-obtained residency permit in another nation was good enough to establish firm resettlement there.

Let's assume that either the couple will accept the decision, or more likely, that they will lose after appealing to the Ninth Circuit; let us further assume that both will be ordered deported to Belize by the courts. Should it play out that way we are left with two puzzles:

  1. What obligation, if any, does the U.S. have to Belize, whose government had been duped by these two?

  2. Will the couple, in fact, ever be deported, and if so, where? Or will they, despite years of litigation, remain in the States?

On the first point, the common-sense answer would be that since the couple had been found to be in illegal status in the U.S., by its courts, and had admitted that they had bribed their way into Belizean legal status, the couple should be sent back to China. But, for several reasons, that will not happen.

If they are to be sent back to Belize, that nation is highly unlikely to deport them to Mainland China, because that entity is one of a set of small countries that (in return for cash) recognizes the island government of Taiwan and not that of Mainland China.

A further possible complication: China does not accept many deportees from the U.S., and the U.S. will not bring enough pressure on them – such as by refusing to off-load Made in China goods in West Coast ports – to change that policy. Finally, a court has already decided that the man shall not be subject to deportation to China, and it is unlikely that the system would send one of them back to Belize and try to send the spouse to China.

That Belize might have an interest in the case, or might be informed of it, are subjects not mentioned in the BIA decision. Perhaps that's fair treatment for a nation that plays fast and loose with its residency permits, but more likely that's the way all third countries are routinely treated.

This brings us to the second question, will they ever be deported? Again bearing in mind the assumptions above, I think not. Here are the possibilities:

  1. They will self-deport, using their existing Belizean documents, and will stay, at least for a while, in Belize. There is no reason why Belize would object at this stage, as the government presumably does not know of the permit fraud. I regard this as desirable but highly unlikely.

  2. ICE will decide that since the couple has not been guilty of a violent crime they will not be deported. (For more on the current administration's policies on these matters see here).This is a highly likely outcome.

  3. ICE moves to deport but Belize blocks their return. That is possible. Or,

  4. ICE moves to deport and Belize does not object, possibly on principle or, more likely, because of incompetence. An unlikely combination of events.

And, if they do not deport themselves, or are not deported, then what happens? My hunch: DX and YZ will stay in the U.S. in a limbo status, but that's where they have been, apparently, for the last six years.

This is one of those American immigration policy decisions where the decision-making is largely out of the hands of the U.S. government: the key question as to where this couple will live will probably be decided by someone else, such as by the couple themselves, or by the governments of China and/or Belize.

There is, in short, many a slip between ordering an alien's departure and obtaining it.