China Tests US Immigration Plan

What can the U.S. do if a huge trading partner like China won't take back thousands of illegal immigrants? Not much, apparently.

In a spat over U.S. asylum policy, China is refusing to take back 40,000 deportable immigrants, insisting that asylum-seekers such as Falun Gong members and other political opponents of Beijing be returned as well. That has put the U.S. in a sticky position.

If illegal immigrants "are not accepted back, then, for all intents and purposes, they are free to remain in this country because we have no place to remove them to," Homeland Security Secretary Michael Chertoff recently told an audience at the American Enterprise Institute, a conservative Washington think tank.

Key to the Department of Homeland Security's recent get-tough plan on immigration enforcement, which began last November, is the end of what it calls "catch and release" – – apprehending illegal immigrants and then releasing them into the U.S. population while negotiating their return home with their government. Department officials are awaiting completion of thousands of new prison beds next year – bringing the total to 30,000 – so that many of those people can be jailed while awaiting deportation, which they hope will also discourage others from immigrating to the U.S.

But China's refusal to accept returnees by not issuing travel documents undercuts U.S. attempts to discourage illegal entrants. "If the removal process has any deterrent effect, you have to show that people are being removed," says Paul Virtue, former general counsel to the immigration service.

Worse, though, it shows what few options the U.S. has in enforcing its deportation policy when other countries won't cooperate. "If China wants to dig in its heels, we would have real limitations," says Doris Meissner, who was immigration commissioner in the Clinton administration.

Of the estimated 12 million illegal immigrants in the U.S., about 550,000 have received final removal orders from an immigration judge but remain at large, says Homeland Security. While Chinese account for only a small share of those ordered deported, they are "the largest population that we've had difficulty in returning," Mr. Chertoff told the AEI audience.

In the fiscal year that ended in September, Homeland Security says it was able to deport just 522 Chinese whose appeals had been exhausted. Even that was a drop from about 600 in each of the two previous years.

International convention holds that countries take back their nationals upon request. China's refusal is "breaking international norms and codes of conduct," Ms. Meissner says. But a handful of countries are routinely slow – or like Cuba, simply refuse – to issue the travel documents that allow the U.S. to return their citizens, says Susan Martin, director of Georgetown University's Institute for the Study of International Migration.

Nigeria, among others, has disputed attempts to return its nationals who have been convicted of crimes in the U.S., arguing that they turned to criminality while they were in the U.S. and shouldn't be Nigeria's responsibility. El Salvador has worried about taking back gang members for fear they will aggravate street crime. Somalia doesn't have a central government that can negotiate its citizens' return.

Other countries see no benefit in taking back immigrants who will add to unemployment, housing or political problems. China, meanwhile, has used the deportation issue to pressure the U.S. on its policy of providing political asylum. The U.S. granted political asylum to about 5,000 Chinese in 2001 and again in 2002, although the number has since fallen by half.

Mr. Chertoff argues that China's reluctance to take back deportable immigrants only encourages asylum seekers. People arrive illegally, are caught, then hear about asylum laws while they await deportation and "the wheels are turning in their mind," he said.

But China argues just the opposite: It says the prospect of political asylum attracts illegal immigrants.

Few illegal entrants ever get as far in the system as being ordered deported by a judge. Those caught within 14 days of arriving or within 100 miles of a border or international airport are simply sent home without access to the courts. That accounts for the bulk of returned immigrants. Others, apprehended outside those limits, agree to pay their way home after brief immigration-court hearings. By leaving voluntarily, many can retain the right to return to the U.S. legally at some point.

Those who resist leaving can appeal immigration-court decisions to the federal courts and up through the federal appeals process, which can take as long as five years.

After that, Homeland Security typically can imprison a nonviolent illegal immigrant for only six months while it negotiates his or her return home. But because the agency lacks prison space, many of those ordered deported are simply released while they wait for the two governments to negotiate a return home.

Homeland Security's enforcement arm, the Immigration and Customs Service, says it has only 730 of the 40,000 illegal Chinese immigrants in jail. Spokesmen for ICE and for Mr. Chertoff declined to say whether they know where to locate the other 39,000 deportable Chinese if their departure could be arranged.

Mr. Chertoff raised the removal issue during a visit to China in April and came to "an agreement in principle," says his spokesman, Russ Knocke, who declined to provide details of the agreement. China says it recently took back about 100 deportees. Still, Mr. Chertoff told the American Enterprise Institute audience that "we have a ways to go" in implementing the agreement.

The U.S. has few ways to force immigrants' return, and almost none with a huge trading partner such as China. Congress allows the immigration service to pressure a reluctant country by withholding visas to its tourists, students and business travelers. But that leverage is "so disproportionate that it's not used," says Ms. Meissner, the former immigration commissioner. Particularly with big trading partners, where back-and-forth business travel is essential for both sides, "it hurts you more than it hurts them," she adds.

Small countries often can be pressured or offered incentives to take back their nationals. But a strategically important country – particularly a petroleum supplier or a country willing to lend its troops to tough peacekeeping operations – has more leverage, immigration experts say. "Other diplomatic issues are at stake," says Georgetown's Ms. Martin.

But allowing deportable immigrants to stay is costly, says Mr. Virtue, the former immigration-service lawyer. The service generally has devoted years of effort to a case before a removal order is issued, he says. And word travels quickly among immigrant groups about flukes or changes in enforcement. "The deterrent is gone," he adds.