Kseniia Petrova, a Harvard researcher from Russia who has been fighting deportation proceedings since February, will now face felony smuggling charges in Massachusetts, a federal judge in Louisiana said on Thursday.
Ms. Petrova made a brief court appearance Thursday morning via video from a jail in Monroe, La., near the Immigration and Customs Enforcement detention center where she has been held for nearly three months.
During the hearing, Ms. Petrova listened quietly as U.S. Magistrate Judge Kayla D. McClusky read her the criminal complaint in the smuggling case, which carries a sentence of up to 20 years in prison. “Yes, I understand,” she said.
After her attorney expressed Ms. Petrova’s desire to be transferred to Massachusetts for further proceedings, Judge McClusky agreed to allow the transfer back to Boston.
The smuggling charges against Ms. Petrova came unexpectedly, and legal experts said the decision to bring criminal charges at this stage in an immigration case was unusual.
The charges were announced just as Ms. Petrova’s legal challenge to her detention appeared to move in her favor. She was initially detained at the airport in Boston in February, after failing to declare frog embryos that she was carrying into the country at the request of her Harvard supervisor to use as scientific samples.
Ms. Petrova has admitted that she failed to declare the samples, but her lawyer has argued that this would ordinarily be treated as a minor infraction, punishable with a fine. Instead, a customs official canceled Ms. Petrova’s visa on the spot and initiated deportation proceedings.
On Wednesday, a federal judge in Vermont, Christina Reiss, quizzed government lawyers about whether customs had the authority to cancel Ms. Petrova’s visa, and set a bail hearing for later this month, a sign that she was potentially moving toward releasing Ms. Petrova.
Hours later, the government interrupted that process by unsealing felony smuggling charges against her. Leah B. Foley, the U.S. attorney for Massachusetts, took the unusual step of releasing a video statement about the charges.
“The rule of law does not have a carve out for educated individuals with pedigree,” Ms. Foley said. “The U.S. visa that Ms. Petrova was given, which was revoked by customs officials because of her conduct, is a privilege, not a right.”
Ms. Petrova’s lawyer, Gregory Romanovsky, has said he was “blindsided” by the smuggling charge, which he cast as a tactic on the part of the government to prevent her release on bail.
“Less than two hours after the Vermont judge set a hearing on Kseniia’s release, she was suddenly transferred from ICE to criminal custody,” he said. “This is not a coincidence. It is an attempt by the government to justify its outrageous and legally indefensible position that this scientist working for the U.S. on cures for cancer and aging research has somehow become a danger to the community.”
It is unusual for a criminal charge to arise months into an immigration case, say legal experts.
Typically, the government determines initially whether an act is criminal, and criminal prosecution takes priority, said Ingrid Eagly, co-director of the Criminal Justice Program at the UCLA School of Law. Once the individual has been prosecuted, she said, the authorities can move to remove them from the country.
In Ms. Petrova’s case, “they put her in removal proceedings, and now are saying it is a criminal case,” Dr. Eagly said. She described this as a “ratcheting up of the charges,” and atypical.
“It seems retaliatory, designed for a particular end,” she said.
Marisol Orihuela, a clinical professor at Yale Law School, said she could not recall seeing a case where criminal charges were brought against a person who had been in removal proceedings for an extended period.
“The question it raises in my mind is why would it take three months” for the U.S. attorney to decide to prosecute Ms. Petrova, she said. “It doesn’t really quite add up about why would you need this amount of time if you thought this was a crime worth charging.”
The shift alters Ms. Petrova’s legal standing in a number of ways. As a criminal defendant, Ms. Petrova has constitutional protections that she lacked as an ICE detainee, including the right to a jury trial and the right to confront witnesses.
“As a general matter, the protections afforded in criminal proceedings are stronger,” arising from the Fifth Amendment’s right to due process and Sixth Amendment’s protections against unjust criminal prosecution, Dr. Orihuela said.
Mr. Romanovsky, Ms. Petrova’s lawyer, said he expects her to be brought to Massachusetts in the next few weeks to face the smuggling charges.
The statute, which carries a maximum penalty of 20 years in prison or a fine of up to $250,000, targets individuals who willfully mislead customs agents about merchandise they are bringing into the United States.
Eric Fish, an acting professor of law at the University of California, Davis, who specializes in immigration and criminal law, said the charge is typically brought in the case of for-profit operations, such as the importation of tigers or sea cucumbers.
Recent prosecutions include a man caught with boots made of endangered sea turtles, and another caught bringing in live exotic birds wrapped in pantyhose. He said he had never seen the charges brought in a case involving academic research material.
Ellen Barry is a reporter covering mental health for The Times.
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