Media report that Dongyuan Li, the mastermind (or at least the public face) of a massive birth tourism operation that served hundreds of women and garnered millions of dollars in profit, is being released after having served less than a year 10 months to be precise in jail. (See, e.g., here and here.) The time in jail was served waiting for trial; having pleaded guilty and been given credit for time served, she's walking out the door of the U.S. criminal justice system, presumably to be removed from the United States.

The scheme involved advising and counseling women on how to deceive U.S. consular officers in China as to their purpose and length of stay in the United States and whenever possible to conceal any indications of pregnancy so that those officers would not suspect that the sole purpose of the visit was to bear a child who would garner the benefits of U.S. citizenship at birth, despite virtually no familial or any other ties to this country.

The U.S. Attorney's Office pressed for a sentence of at least 33 months and the judge's sentence came as a surprise to one and all. His comments have been limited, but he suggested that if the government had been able to present more evidence of visa fraud, he might have ordered a longer sentence. This is pure sophistry. As multiple accounts make clear, she was living the lifestyle of the elite rich, in a mansion attended by servants, with multiple luxury cars, multiple bank accounts, and a huge stockpile of dough. The government is seizing most, if not all, of thatas fruits of the crime. What's more, there was ample electronic evidence gathered in thousands of text messages, e-mails, attachments, and documents that clearly reflected the extensive reach of the scheme.

One suspects that the presiding judge, James Selna, is one of those who either thinks that it was a victimless crime, or alternately that deportation in lieu of time in jail is adequate. I vigorously disagree.

As to the the "victimless crime" reasoning, society is a victim when the integrity of a system of governance in this case, our immigration and visa-issuance processes is so badly compromised. Do a quick thought experiment here: Imagine that tomorrow Congress passes a massive amnesty. If, a year after that, there is evidence that thousands of aliens defrauded the government to obtain their green cards, will your moral compass and sense of outrage be awakened? Probably. Now transpose that moral outrage to this matter it is, after all, considerably more important because the theft here was so much better than a green card it was of U.S. citizenship, the ultimate prize.

That the immediate beneficiary happens to be an infant is immaterial. Indeed, it is, or should be, of more concern because he or she will grow up in the shadow of the Chinese Communist Party and its organs. Will he or she grow up to be turned against us and used as a weapon or tool of espionage? After all, there will be no intrinsic attachment to a country neither known nor remembered. This isn't far-fetched. Because the Chinese government is monolithic and authoritarian, its reach into everyday society is extensive and, like the North Koreans, Chinese official are not above establishing illicit schemes in other countries when it suits their national interest. That is why I spoke speculatively about whether or not Dongyuan Li orchestrated the fraud scheme, or was simply its public face.

As to whether deportation is an adequate substitute for jail time, it seems to me a fundamental unfairness that aliens can break the criminal laws and simply escape by being repatriated to where they came from. U.S. citizens have no such escape valve, and so become disadvantaged in this regard. Can you imagine a citizen going before a judge and saying, "If you let me, I'll be glad to cross into Mexico and get out of your hair instead of sending me to jail"? It would be a source of endless amusement and outrage. I don't suggest aliens should not be removed for their crimes, but only after serving a sentence commensurate to what any citizen would be obliged to served. To take any other position is to endorse a disparate system of justice.

Finally, it's important to recognize that there aren't just two decision-makers where removal of this woman is concerned (assuming that she acquiesces to being deported because she doesn't want to risk being found out in any other fraud schemes she may have engaged in, or for whatever other reason). There are three players. The ponderous and overburdened immigration court system, which is groaning under the weight of a million-plus removal cases, kicks in when the federal authorities file deportation charges against her. So the U.S. government is player number one. She can, as mentioned, acquiesce or fight the charges tooth and nail in an attempt to remain. Either way, she is player number two. But the third player is China itself. The People's Republic of China must agree to take Dongyuan Li back and issue the necessary repatriation documents, and it's worth noting that the PRC is listed as a "recalcitrant nation" that deliberately slow-walks its issuance of those documents, sometimes for years, thus impeding our government's ability to actually execute a warrant of removal once issued.

Consider this irony: If China chooses to throw a wrench into the machinery of her removal, even if the woman is detained she must be released within six months once it becomes clear that deportation isn't imminent. (You can thank the Supreme Court for that landmark 2001 decision.) In such a scenario, she might very well end up walking the streets of America for years to come despite all of her criminal machinations; at this point there's just no way to know.

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When the Justice System Tilts Toward Aliens - Immigration Blog