Mei Ying Fong was ordered returned to the United States last week after Southern District Judge Alvin K. Hellerstien said immigration officials illegally deported her in September.  The Chinese immigrant had been removed from the United States even though a contrary order was made.

Hellerstien determined Fong was denied due process because she was told to appear for a hearing on her removal but was then arrested, taken to an airport and deported to China.  Hellerstein said in court that this action violated a federal regulation that states an undocumented individual taken into custody will not be deported less than 72 hours afterward without the consent of that person.

Fong arrived in the U.S. in 1995 and three months later sought asylum based on her claim that Chinese officials would retaliate against her for assisting a woman who was about to have a forced abortion under the country’s government’s one-child policy.  Over six year period, the Bureau of Immigration and Customs Enforcement tried to arrange to hear Fong’s asylum application and to hold hearings on her removal.

In September 2003, the Bureau of Immigration and Customs Enforcement scheduled a hearing on the adjustment application.  However, rather than having a hearing, Fong was taken into custody upon arrival.  After receiving a writ of habeas corpus, Hellerstein ordered the temporary stay of Fong’s removal.

The order was not adhered to, however, when Fong was not removed from her plane headed to China.  Hellerstien argued in court last week that the new regulations, in the form of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) passed in 1996, did not offer a time limit by which an individual who had been taken into the government’s custody could not be removed.  Thus, Hellerstien determined the 72-hour requirement had been abandoned.

Hellerstien pointed out in court that the intentions of IIRIRA were only to merge separate provisions for deportable immigrants, and that a change to the 72-hour rule was never intended.