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A Chinese immigrant removed from the United States despite a contrary order by a federal judge has been ordered returned to this country.

Southern District Judge Alvin K. Hellerstein said immigration officials illegally deported the woman, Mei Ying Fong, in September.

She sought asylum eight years ago based on a claim that Chinese officials will retaliate against her for aiding a woman who was about to have a forced abortion under the government’s one-child policy.

Judge Hellerstein said Ms. 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 flown back to China.

The removal, said the judge, violated a federal regulation saying an “alien taken into custody either upon notice to surrender or by arrest shall not be deported less than 72 hours thereafter without his or her consent.”

The judge had issued a stay of Ms. Fong’s removal at 1:35 p.m. on Sept. 18, 2003, in Fong v. Ashcroft.

The decision will be published Friday.

“The government was aware of my order, having informed me of her scheduled departure time in order that the 3:00 p.m. hearing that I had scheduled would not become academic,” Judge Hellerstein wrote. “According to the government, the only reason the Order was not complied with was that the airplane had been ‘sealed’ and was ready for departure.”

He said the “decision of the immigration officials not to remove Fong from the airplane while it (presumably) was still at the gate ‘thwarted and interfered with’ the lawful order of the district court.”

Ms. Fong, 56, entered the United States in December 1995 and applied for asylum three months later. Over the next six years, immigration officials, now operating as the Bureau of Immigration and Customs Enforcement, tried to arrange to hear Ms. Fong’s asylum application and to hold hearings on her removal, both sides said.

Ms. Fong alleged that the bureau sent documents to the wrong address and that she never received notice of other hearings. She charged that a travel agent, without authorization, processed her request for asylum and gave the wrong address to the agency.

In 2002, Ms. Fong’s daughter filed a petition to have Ms. Fong classified as the immediate relative of a U.S. citizen. Ms. Fong followed by filing an application for an adjustment of her immigration status.

The Bureau of Immigration and Customs Enforcement scheduled a hearing on the adjustment application for Sept. 17, 2003. But when Ms. Fong arrived, no hearing was held, and she was taken into custody.

Ms. Fong filed a petition for a writ of habeas corpus that was received by Judge Hellerstein on the morning of Sept. 18. He ordered the temporary stay of Ms. Fong’s removal.

“But the order was not heeded; ICE officials informed the parties that the plane was sealed and ready for take-off,” he said, referring to the enforcement bureau. “The airplane departed on schedule, at 1:55, with Fong aboard.”

Ms. Fong’s lawyer, Theodore N. Cox, continue to pursue her habeas petition. Judge Hellerstein granted it on Friday.

72-Hour Rule

The judge said the 72-hour requirement had been codified in 8 C.F.R. §241.22 for aliens subject to exclusion and §241.33(b) for aliens subject to deportation.

But in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, (IIRIRA), which eliminated a distinction between the two and created a single set of “removal proceedings.”

Because the new regulations “did not provide a time period before which an alien who had come into the government’s custody could not be removed,” Judge Hellerstein said, the government argued that the 72-hour requirement had been abandoned.

“I decline to accept the argument,” the judge said. “Congress intended the IIRIRA to merge the separate provisions for excludable and deportable Aliens. There is no suggestion in the statutory or regulatory history that a change to the 72-hour rule was intended.”

Under the government’s argument, he said, “the agency could make a determination of removal and then deport the alien two minutes later, leaving the alien no opportunity even to file an appeal.”

Assistant U.S. Attorney F. James Loprest represented the government.

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