Kseniia Petrova is a Russian-born Harvard Medical School biomedical researcher who has been held in immigration detention in Louisiana for three months. The government detained her over a combination of the failure to declare dehydrated frog embryo samples in her luggage (brought back for research purposes at the request of her lab supervisor), as well as her expressing a fear of political persecution if she is removed to Russia. She fears persecution in Russia because she has protested the invasion of Ukraine.
Judge Christina Reiss held the first hearing in Petrova’s case early Wednesday in Burlington, Vermont, and further scheduled a bail hearing in the case for May 28. Petrova was able to listen to today’s hearing by Zoom, but missed the first 40 minutes. Reiss is willing to order her brought to Vermont for the bail hearing.
“It went really well!” said Gregory Romanovsky, Petrova’s attorney, after the hearing. Romanovsky said the “most important” thing was that the bail hearing had been scheduled. “The judge focused in on the facts – what happened at the airport. I’m very grateful the judge took her time and was extremely well prepared.”
Things got more complicated Wednesday as the U.S. Attorney’s Office in Boston reported it had arrested Petrova on one count of smuggling goods into the country.
Petrova – whose work seeks to reverse the effects of aging through cell rejuvenation – flew back to the United States after a scientific conference in France and was denied admission at Logan Airport on Feb. 16 and held in immigration detention in Chittenden, Vermont.
“On Feb. 16, I boarded a flight from Paris back to Boston,” Petrova said in a statement on May 2. “My boss had asked me to bring back scientific samples – fixed and embedded frog embryos – from Institut Curie in France to complete ongoing experiments in the United States. Because these embryos are nontoxic, nonhazardous and noninfectious, I did not expect any issues in bringing them into the country. I should have reviewed U.S. customs paperwork requirements. But as a scientist, I was more focused on getting the samples to the lab before they degraded to ensure we could continue the experiment.”
Her attorneys filed a petition in the District of Vermont on Feb. 23 against her detention; the next day, she was transferred to a facility in Monroe, Louisiana, where she has remained.
Petrova “is a wonderful person,” said Marc Kirschner, the Harvard professor responsible for the lab where Petrova works, and who attended the hearing in Vermont with his wife Phyllis.
Her case has moved slowly. U.S. Customs and Border Protection has broad discretion to deny entry to the country, which is subject to different standards than immigration arrests for visitors and students who have legally entered – including Tufts doctoral student Rümeysa Özturk, who was granted bail on Friday, or Mohsen Mahdawi, the Columbia University student arrested after his citizenship interview in Vermont. Petrova had a J-1 visa that allowed her to work at Harvard, but she could still be denied entry. It’s much easier for the government to deny entry at the border – such as an airport – than to arrest someone legally present in the country with stronger procedural protections.
“This case is just one example of the Trump administration’s policy of wielding immigration enforcement against students and academics as punishment for nonexistent or minor offenses that should not incur immigration consequences,” said Massachusetts attorney general Andrea Joy Campbell in an amicus brief filed in the case on Monday.
Wednesday hearing
This morning’s hearing, attending by around 60 people in person and more online, was initially supposed to address a narrow question: whether Petrova had been issued a removal order – an order to leave the country – considering that the government had seemingly provided a half-blank form.
Instead, the government filed a motion to dismiss the case on April 25 and the court decided to hear oral argument on the motion, with the permission of both sides, even though that wasn’t officially on the schedule.
The hearing began with a dozen questions from Reiss to both sides: asking if any judge had found her to be a risk of flight; if two out of three counts in the habeas petition about her detention are moot (they asked for the other half of the blank form, which doesn’t exist; and for a hearing about fear of return to Russia, but the government does not dispute she has a “credible fear”); under which law she is detained; how well she speaks English; whether the dehydrated frog embryos, encased in paraffin, are really “biological specimens,” or are they more like a dead scorpion encased in plastic sold as tourism novelties in Mexico; what the legal definition of “biological” is; whether the Öztürk and Mahdawi cases from the second circuit court of appeals – both were students ordered released from immigration detention and that decision was upheld by the appeals court – affect the jurisdictional issues; and similar questions.
Romanovsky maintained that the scientific samples were not “biological materials” under the law – they are dehydrated and embedded in wax – but even if they were, failure to declare an item to customs is not grounds for inadmissibility or revocation of a visa; it’s grounds for a fine.
Similarly, he said, it didn’t matter if Petrova had lied to customs officers about carrying the frog embryos – which she denies but the government alleges. Lying to customs officials is also not ground for inadmissibility or revocation of a visa, Romanovsky said, unless you’re seeking an immigration benefit. Petrova’s J-1 visa is a nonimmigrant educational exchange visa, he said.
The government’s canceling of Petrova’s visa and refusal of entry to the country violate immigration laws and regulations, and therefore violate the Administrative Procedure Act, Romanovsky said.
Jeffrey Hartman of the Department of Justice’s Office of Immigration Litigation argued for the government. Hartman told the court that the challenges all needed to go before an immigration judge and the board of immigration appeals before they could be reviewed, because immigration law strips the federal court of jurisdiction.
Although she questioned both sides, Reiss pressed Hartman firmly on this idea of jurisdiction-stripping. Petrova “hasn’t really pleaded a reason why this is unconstitutional,” Hartman said.
“Well, she has,” Reiss responded. “The Fifth Amendment’s not nothing.”
Immigration laws are detailed and complex, and Petrova’s case is chiefly that the government did not properly follow the rules that Congress set up. But it’s also one of the first of its kind, challenging refusal of admission to the country through habeas corpus, the mechanism for challenging detention.
But that uniqueness is in part because a denial of entry to the United States usually puts you on the other side of the border, outside the country. Petrova’s case may be unique because she was denied entry and not allowed to return to France, where she has a visa, but instead was arrested and taken to Vermont, and on to Louisiana.
The May 28 hearing will be preceded by substantial briefing from both sides on the jurisdictional questions, although a schedule has not yet been set.
Romanovsky is asking the court to “set aside” the illegal actions taken by the customs officers at Logan Airport and restore Petrova’s immigration status and liberty. But he’s not aware of any other case where that has been done, so it’s a big ask.
The feature image for this post (but not the image seen above) was added to in a digital retouching process. The background and portions of the subject’s body to the right and left are not real. The face and headphones at the center were photographed and are real.
A stronger
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Thinking of you, Kzeniia, and calling my legislators. Turned out they’ve written that open letter.
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