A 22-year-old Chinese student caught surreptitiously taking videos of students in a women’s restroom at Arizona State University has voluntarily agreed to return to his country, according to his lawyer.

The move avoids a formal deportation that could have posed difficulties for the United States given China’s reputation for not cooperating with U.S. on such removals.

Xiaoyuan Zhang, who had been attending ASU on a student visa, was charged with six felony counts of voyeurism after admitting to police in September that he used his cellphone to secretly take photos and video of female students using a women’s restroom in a campus lecture hall, according to court records.

In December, he pleaded guilty to two counts of attempted voyeurism, a Class 6 felony, the lowest level. In part because he had no prior criminal record, a judge agreed on Jan. 23 to sentence Zhang to 10 years’ probation, court records show. He was then transferred from the Durango jail, where he had been held for 119 days since his arrest, to the custody of Immigration and Customs Enforcement, court records show.

He is currently being held in ICE custody at the Florence Correctional Center, according to an ICE database.

An immigration judge determined that Zhang no longer has legal basis to remain in the U.S., said Yasmeen Pitts O’Keefe, an ICE spokeswoman in Phoenix. “Accordingly, ICE is now making preparations to repatriate Mr. Zhang to his native country,” she said in a statement.

China is among 23 countries deemed by ICE to be uncooperative or recalcitrant because they have refused or delayed the acceptance of their nationals after they have been ordered removed from the U.S., according to testimony ICE Deputy Director Daniel Ragsdale gave before a House committee in July.

ICE deported 398 people to China in fiscal year 2016, according to ICE statistics.

That is just a fraction of the nearly 40,000 Chinese nationals with outstanding final orders of removal, according to data released in October by the Senate Subcommittee on Border Security and Immigration and posted by then-Sen. Jeff Sessions, R-Alabama, now the U.S. attorney general. That is the highest number from any one country, according to the data.

‘A voluntary departure’

Pitts O’Keefe declined to comment further on Zhang’s pending repatriation, including whether China had attempted to prevent or delay his return.

Court documents filed by John Starkey, a Tempe attorney, show Zhang is scheduled to take a non-stop flight from the U.S. to China on Monday  and that Zhang will be escorted by ICE officers from Florence to the point of departure, which was not listed.

Zhang was willing to return to China on his own rather than trying to make the U.S. formally deport him, which China might have tried to block or delay, according to John Starkey, a Tempe lawyer who represented Zhang.

“In this case (Zhang) is not being deported,” Starkey said. “That is not what is happening.”

“This is simply a voluntary departure, which is, ‘Hey, I get it. I don’t want to get in a fight with you guys. I originally was just a guest in this country, just like any other visitor,’ ” Starkey added.

China’s track record 

China has a track record of trying to “stonewall” ICE from trying to deport Chinese nationals back to China by refusing to issue travel documents or refusing to concede that the person is a citizen of China or “simply by dragging out all the communications,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a Washington, D.C., group that favors greater immigration enforcement.

The U.S. is often forced to release foreign nationals with final orders or removals when their countries refuse to accept them, she said. That is because of a Supreme Court ruling limiting to 180 days the time immigration detainees can be held unless they are deemed a threat to national security, public health or they have a severe mental illness, she said.

In order for ICE to carry out a deportation, the agency needs a final order of removal issued by an immigration judge and a travel document issued by a foreign government, according to Ragsdale’s testimony.

“Although the majority of countries adhere to their international obligation to accept the return of their citizens who are not eligible to remain in the United States, ICE faces unique challenges with those countries that systematically refuse or delay the repatriation of their nationals,” Ragsdale told the House committee, according to his written testimony.

Admitted taking pictures, videos

According to court records, a female student noticed she was being videotaped while using the women’s restroom at a lecture hall on the ASU campus. The student told another female student and the second student blocked Zhang from leaving the restroom, took his phone and called 911.

When police arrived, Zhang agreed to let them look at his phone. In a deleted folder, they found pictures and videos of six females using the bathroom and underneath their skirts, according to court records.

Zhang admitted taking the pictures and videos, and when asked why he said because he had a “dirty mind,” according to court records.

Due to a language barrier, police were unable to complete an interview with Zhang, court records show. When interviewed with the assistance of a Mandarin interpreter, Zhang admitted that he had been in the restroom for about an hour taking videos and pictures. He then deleted them because “he felt bad and because some had his face in them,” according to court records.

Police later discovered 17 photos and 10 videos looking up women’s skirts, according to court records. The pictures dated to Jan. 12, 2016, and were taken at several locations on campus, as well as a grocery store and a mall, according to court records.

‘Punished multiple times’

As part of his 10-year probation sentence, Zhang was ordered to register with the Maricopa County Adult Probation Department as a sex offender. Had he been able to stay in the U.S., Zhang would have been allowed to ask that the felony conviction be re-designated as a lower misdemeanor conviction, provided he didn’t have any other problems with the law, Starkey said.

But because he has been held in ICE custody since being released from the Durango jail, Zhang was unable to register with the Maricopa County Adult Probation Department, Starkey said.

What’s more, once Zhang returns to China, he will be ineligible to obtain a visa to return to the U.S. because of his felony conviction, Starkey said.

“He has no way to complete his probation because he will be out of the country, and effectively he is done for as far as being in the U.S.,” Starkey said.

As far as his punishment, Starkey pointed out that Zhang spent more than six months locked up, lost his apartment and his car, won’t be able to finish is undergraduate degree and is returning to his country “in disgrace.”

“This guy has been punished multiple times,” he said.

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