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- Former Brazilian President Jair Bolsonaro came to Florida late last year on a visa.
- After his supporters staged an insurrection, there are calls to send him back home.
- To deport him, the Secretary of State could rule that Bolsonaro is harming US foreign policy.
Jair Bolsonaro was thousands of miles away when a mob of his supporters ransacked Brazil’s capital over the weekend, but the lie that he and his allies told — that the far-right former president actually won an election that he lost — was what lit the fire of insurrection. Already there are calls for him to return home, willingly or not.
Late last year, Bolsonaro, while still Brazil’s head of state, came to Florida, with people spotting him everywhere from fast-food joints to grocery stores. He is now in a hospital outside Orlando where, according to his wife, he is receiving treatment for abdominal pain.
As Brazil’s president, Bolsonaro, a close ally of former President Donald Trump, enjoyed something his fellow Brazilians do not: easy access to the United States, courtesy of the type of visa awarded to diplomats and other foreign government officials. And even now that he is a private citizen, Bolsonaro enjoys legal rights that could long delay any forcible return to Brazil, should it come to that.
At a press briefing on Monday, Ned Price, a spokesperson for the US State Department, declined to comment on whether Bolsonaro used such a visa to enter the country. But he said that it is “incumbent” on any individual on a diplomatic visa — but no longer working for their government — to either leave the country or “request a change to another immigration status within 30 days” of their employment changing.
Bolsonaro arrived in Florida on December 30. His left-wing successor, Lula Inácio da Silva, was sworn in on January 1.
It is also possible that Bolsonaro arrived on a tourist visa. Regardless, should he wish to remain in the US, Brazil’s ex-leader will have the ability to legally challenge any effort to remove him, a process that could push back his return to Brazil for months, if not longer.
If Brazil files charges against him for any alleged role in the January 8 riots, Bolsonaro will also have the right to fight a separate legal battle against extradition.
‘Reasonable grounds’ to deport Bolsonaro
There is a potential, if little-used, alternative. Under federal law, Bolsonaro could be deported if the Secretary of State has “reasonable grounds” to believe that his presence in the country “would have potentially serious adverse foreign policy consequences for the United States.”
Under that provision, Bolsonaro could be deported whether or not he has even been charged with a crime.
In 1995, then-Secretary of State Warren Christopher reached such a conclusion with respect to a former Mexican prosecutor, Ruiz Massieu, who had been charged in his home country with obstructing an investigation into the assassination of his brother, a prominent politician. The same day that a US judge denied Mexico’s extradition request, Massieu was taken into custody by immigration officials, armed with a letter from the Secretary of State declaring him a nuisance to US foreign policy who should be deported, The Los Angeles Times reported.
But there were complications. US law granted Massieu the right to challenge that deportation, too. Four months later, US District Judge Maryanne Trump Barry, the sister of former President Donald Trump, ruled that the federal government had no right to deport someone solely on the determination of the US Secretary of State, provided that they had in fact entered the country legally and obeyed its laws.
“The issue is whether an alien in this country legally can, merely because he is here, have his liberty restrained and forcibly be removed to a specific country in the unfettered discretion of the Secretary of State and without any meaningful opportunity to be heard,” Barry wrote in her decision. “The answer is a ringing, ‘No!'”
The US Department of Justice pushed back on that conclusion. Its s Board of Immigration Appeals — whose decisions are the final say on questions before immigration judges — subsequently ruled that no court has the right to question a Secretary of State’s determination that a person is a threat to the country’s foreign policy.
Ultimately, though, the US never deported Massieu. Instead, in 1999, US prosecutors charged him themselves, accusing him of laundering millions of dollars he received from drug cartels. He died by suicide a month later.
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