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Illegal Chinese immigrants land in U.S. limbo

The Department of Homeland Security charges that China is not cooperating in the repatriation of more than 39,000 of its nationals who have lost immigration or asylum appeals in the United States, and have been issued final removal orders. By Kari Huus.
Immigration officers work at the Port of Seattle on April 5 after apprehending 22 Chinese nationals who emerged from one of these 40-foot containers, which arrived on a ship from Shanghai.
Immigration officers work at the Port of Seattle on April 5 after apprehending 22 Chinese nationals who emerged from one of these 40-foot containers, which arrived on a ship from Shanghai.Kevin P. Casey / AP
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Even as the debate over illegal immigration raged this month on Capitol Hill, 22 Chinese were among the many migrants making their way to these shores, using a scheme that is among the most dangerous and expensive ways to illegally enter the United States.

In early hours on April 5, 18 men and 4 women pried their way out of a 40-foot-long shipping container that had arrived in the port of Seattle from Shanghai the previous day after a two-week journey. They didn't get far before security guards spotted them as they tried to find a way out of the fenced shipyard, and they were soon taken into custody by U.S. border security.

Had these stowaways been Mexican, they likely would have been subject to relatively rapid deportation, with no immigration hearing, through a procedure called "expedited removal."

But dealing with illegal immigrants from China is rarely so simple. Though they are vastly outnumbered by illegal immigrants from Latin America — perhaps 500,000 among the estimated 13 million "unauthorized migrants" — they are tougher to remove, for reasons as complex as the U.S.-China relationship itself.

The problem is the subject of heated behind-the-scenes talks as Chinese President Hu Jintao visits the United States to meet with President Bush and discuss other irritants in the relationship, including piracy and currency manipulation.

It's all but certain, say immigration enforcers and experts, that the stowaways detained in Seattle will make their way into the byzantine immigration or asylum system. In the process, some will gain legal residency — but many will disappear and slip quietly into the workforce and eventually gain a solid toehold in America.

Homeland Security takes its gripe public
Indeed, the Department of Homeland Security says that more than 39,000 Chinese remain in the United States even though they have been issued final deportation orders — meaning they have exhausted all immigration and asylum appeals.

According to the agency, Beijing is not making their return possible by issuing required travel documents at a glacial pace. Homeland Security officials complain that the slow processing strains limited detention facilities — at a cost of $95 a day per detainee — and increases the chances that they will abscond after their detention period expires.

Of the more than 39,000 Chinese who have been ordered deported, only 300 are now in detention. Under U.S. law, they must be released after 180 days unless they are a threat to the community. If Beijing hasn't submitted the paperwork allowing them to return before then, they are released on bond or placed in other types of monitoring programs.

Homeland Security, shunning the diplomatic approach taken by the U.S. State Department on the subject, has decided to make its complaint public.

"We don’t mind naming the countries that are not cooperating, and we’re starting with the biggest offender," said DHS spokesman Russ Knocke, echoing recent statements by Homeland Security Secretary Michael Chertoff. "This is a part of an overall effort to restore integrity to our immigration system."

For several weeks, U.S. and Chinese security officials have been in back-room negotiations over the repatriation issue and Chertoff recently stated that the two sides have an agreement "in principle" that will lead to much faster returns. DHS officials declined to discuss details of the agreement in advance of Hu's visit.

Does Beijing lack incentive?
The United States has previously encountered problems deporting illegal immigrants — though normally on a smaller scale — from countries that have no formal ties with the United States (as was the case with Vietnam for many years) or that effectively have no government (such as the Sudan).

With China, it's different. Even though Beijing officially prohibits illegal emigration and has full diplomatic relations with the United States, just 800 Chinese nationals were successfully repatriated to China from the United States last year.

Why? The Chinese Embassy in Washington did not respond to requests for interviews on the subject, but in the past China has cited uncertainty about their identities.

Many Chinese destroy their passports as soon as they arrive, according to Zang Guohua, a Chinese reporter in Washington, D.C., making it hard to verify their origins, especially if they entered through a third country.

"The (Chinese) government has a point. You can’t just send them back by how they look or speak," he said. "(Beijing) demand(s) some kind of documentation that associates these people with their Chinese identity."

And it's easy to see how repatriating these illegal migrants — mostly blue-collar workers from a nation of more than 1 billion — might not be viewed as a high priority in Beijing.

"They probably don’t want to take them back because there are so many, and then what do they do with them?" said Elizabeth Peng, a American immigration lawyer in Seattle who was born in China. In the past, Peng said, China would jail those who were returned after illegal migration. "But in such large numbers, it would constitute such a loss of face. It doesn’t put them in a good light," she said.

Political tango
But U.S. and Chinese political postures also play a role. U.S. asylum policy grants residency to Chinese citizens who can show they are likely to be persecuted if they return to China on the grounds of their politics, religious beliefs or affiliations, or under China's restrictive birth control policy. It is a persistent irritant to Beijing, which views U.S. policy as interference.

"We think it is not favorable to cracking down on illegal immigrants," Foreign Ministry spokesperson Liu Jianchao said of the asylum cases at a recent news conference.

He may have been making a political point, but he expressed a practical reality. To avoid expedited removal, all a migrant has to do is cite a fear of persecution to the detaining officer, or express an intention to apply for asylum. Then the process kicks in — the migrant is sent to an asylum officer for a "credible fear" interview.

"In many cases of organized smuggling we have found (the immigrants) have been carefully coached by the snakeheads," said Homeland Security spokeswoman Virginia Kice, referring to organizers of human smuggling operations.

In 2004, the most recent year for which data is available, Chinese were second to Haitians among nationalities seeking U.S. asylum, with 2,839 asylum cases filed. About 25 percent of Chinese cases ultimately end in the granting of asylum — compared to 35 percent for Haitians, and 45 percent for applicants from Venezuela and Colombia — but the process of sifting through legitimate and fraudulent claims can take several years.

"We may get the final removal order in some cases," said Kice, "But unless we can implement the final order, at some point we’re going to have to release them … some of them may abscond. There’s no question about it."

Tough measures, tough opposition
In the debate over immigration, some of the most conservative voices are proposing tough — critics say Draconian — legislation to prevent migrants from lingering in the United States. One such provision would give Homeland Security the authority to turn back any visitors arriving from countries that, like China, are deemed uncooperative in taking back their nationals.

That would certainly get Beijing's attention, but critics are appalled that the measure survived legislative debate. If legitimate Chinese travelers were suddenly turned back at U.S. ports of entry, they say, China would almost certainly retaliate in kind, putting in peril the legitimate and extensive business, educational and cultural relationships cultivated over the last few decades.

"It would create huge diplomatic problems," predicts a congressional staffer who works on the immigration issue.

"It's really stupid," agreed Rep. Zoe Lofgren, D-Calif., adding that the provision likely won't be used and wouldn't solve the problem even if it was.

"I think the highest level of government — the president if necessary — should tell the government of China that if they want to have a business relationship with the United States, they have to solve the problem," she said. "It may be embarrassing to (China) to deal with it in a statement, so it’s not required. I just want them to change their behavior."

The White House declined to say whether the issue of repatriation is on the agenda in talks between Presidents Hu and Bush.

Another provision contained in both House and Senate immigration bills would add 10,000 detention beds for illegal immigrants, and seek to extend the length of time they can be detained. But that provision runs counter to a 2001 Supreme Court decision, Zadvydas vs. Davis, that bars indefinite detention of individuals who have been ordered removed but cannot be repatriated.

Meantime, one thing U.S. lawmakers and Chinese officials seem to agree on is the need for beefed up enforcement of port security and measures to prevent the human smuggling operations at the heart of the problem. Many illegal immigrants, who typically pay anywhere from $10,000 to $70,000 for false documentation or illegal transportation out of China, end up as indentured workers in their new homelands, trying to pay off their debt to snakeheads for years. Some have paid with their lives in schemes that went horrifically awry.

So, while the Chinese migrants arrested in Seattle are held at a detention facility in Tacoma, U.S. officials are for now focused less on their immigration cases than on launching a criminal investigation in which these 22 people could become material witnesses.