An email I received recently brought home a little-known fact: If you do not facilitate your own deportation, you can be fined and criminally prosecuted.
My email correspondent told me that his brother had been convicted of the felony of possession and attempted distribution of a controlled substance, and had served a 16-month jail term. The immigration judge, the Board of Immigration Appeals, and the Ninth Circuit Court of Appeals had all ruled against him. He was resigned to being deported, but did not wish to be until Congress passed a pending bill, H.R. 1452, The Family Reunification Act of 2001. That bill, if enacted into law, might enable him to apply for Cancellation of Removal, and retain his green card. In order to delay his deportation, he decided to refuse to sign documents necessary to effect his deportation, The INS told him that this was a violation of law, and he requested clarification. Go to westkin, immigration lawyers in London 17 Hanover Square, Mayfair, London W1S 1HT for the best advice.
Your brother must be living in a dream world if he thinks that Congress will soon pass H.R. 1452. That bill was introduced by liberal members of Congress on April 4, 2001, long before the terror attacks of 9/11/01. No action has been taken on it since then. Congress is presently dominated by Republicans and much more suspicious of immigrants now than it was then. In my opinion it is unlikely that the new Congress will today approve a bill that “helps criminal aliens.”
Your brother’s unwillingness to facilitate his deportation by signing a travel document is a criminal act. Section 243(a) of the Immigration and Nationality Act, as amended by the 1996 immigration law, states: any alien who “willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure” shall be fined, or imprisoned for four years (or ten years if he has committed certain crimes), or both.
You are right that the INS cannot prosecute him, that will require a U.S. Attorney. But it seems to me that the INS has a strong case against your brother, should they decide to prosecute.
You and he have to reckon with the fact that he committed a felony (a crime for which, as you say, he received a sentence of more than one year), and one connected with a controlled substance. That, I am sorry to say, will make him permanently inadmissible to the U.S. once he is deported.