Brazil's Bolsonaro is in Florida. What does the U.S. do now?
While the U.S. appears to have the sovereign right to expel Bolsonaro, doing so could get messy
Far-right former Brazilian president Jair Bolsonaro flew to Florida two days before his term ended, having challenged the results of the Oct. 30 run-off election that he narrowly lost to leftist rival Luiz Inacio Lula da Silva.
On Sunday, a violent movement of election-denying Bolsonaro supporters stormed Brazil's presidential palace, Congress and Supreme Court.
Bolsonaro arrived in Florida on Dec. 30, therefore missing the inauguration in Brazil of his successor. The Washington Post has reported he has stayed in a house in Orlando owned by Brazilian mixed martial arts fighter José Aldo da Silva Oliveira, and doesn't appear to have engaged in any overtly political activities or appeared at any policy forums since arriving.
Bolsonaro is on friendly terms with former U.S. president Donald Trump, and his son Eduardo Bolsonaro has belonged to an anti-globalist group formed by Steve Bannon, the former Trump adviser who faces legal jeopardy in two separate cases.
Some Democrats believe Bolsonaro should be removed from the country, including progressive New York Democrat Alexandria Ocasio-Cortez, who tweeted Sunday, "the U.S. must cease granting refuge to Bolsonaro in Florida."
At the other end of the spectrum, far-right House Republican Paul Gosar of Arizona said he favours granting asylum to Bolsonaro.
The White House said on Monday it had yet to receive any requests from the Brazilian government regarding Bolsonaro's status.
By letting him stay, the U.S. could invite criticism that it is harbouring a man accused by his successor of fomenting anti-democratic violence. But forcing out the former president of an allied state who entered the country in good faith with a top-tier visa poses awkward questions about due process.
Bolsonaro, 67, had a fractious relationship with President Joe Biden, and was already on weaker ground back home in Brazil after losing broad protections from prosecution when he stepped down as president. Those probes could lead to his arrest or prevent him from running for office, Reuters reported last week.
Here's how the situation could theoretically play out:
If the U.S. initiates removal
Three U.S. sources told Reuters that Bolsonaro had almost certainly entered on an A-1 visa, which is reserved for heads of state, diplomats and other government officials.
Normally the A-1 is cancelled after the recipient leaves office. But with Bolsonaro having left Brazil before his term ended, they suspected his A-1 was still active.
One of the officials, who has experience with the cancellation of visas for former heads of state, said there is no set time limit on how long someone can stay in the United States on an A-1.
"We're in uncharted territory," the official said.
In response to Reuters questions, State Department spokesperson Ned Price said anyone in the United States on an A-1 visa no longer engaged in official business must depart the country within 30 days, or apply for a change of immigration status. Price said he could not comment on an individual's visa status, but was speaking in general terms about visa rules.
"If an individual has no basis on which to be in the United States, an individual is subject to removal by the Department of Homeland Security," Price said.
That view was echoed by John Feeley, U.S. ambassador to Panama from late 2015 to 2018 when that Central American nation sought the extradition of its former president Ricardo Martinelli.
"The United States — or any sovereign nation for that matter — may remove a foreigner, even one who entered legally on a visa, for any reason," Feeley said. "It's a purely sovereign decision for which no legal justification is required."
If Brazil moves to retrieve Bolsonaro
Lula, as he is familiarly known, has blamed Bolsonaro for Sunday's violence. In a tweet on Sunday, Bolsonaro distanced himself from Sunday's riot, saying it had crossed the line of peaceful protest.
The attack itself could result in a probe by the Brazilian Supreme Court, led by crusading Justice Alexandre de Moraes.
WATCH | Several weapons found, probes begin after hundreds arrested in Brazil:
If Moraes were to sign an arrest warrant while Bolsonaro is in the United States, the former president would be technically required to fly back to Brazil and hand himself over to police. If he refused, Brazil could issue an Interpol Red Notice to prompt his arrest by U.S. federal agents.
If Bolsonaro were detained, Brazil would have to seek his extradition, which could take years to play out.
The stakes for Bolsonaro
Lula had already pledged in his Jan. 1 inauguration speech that Bolsonaro would be prosecuted if needed with respect to previous cases. The four criminal probes previously underway included allegations Bolsonaro leaned on the federal police to protect his sons, spread known electoral falsehoods and harboured a troll farm peddling disinformation from within his presidential office.
While the judiciary is independent, prosecutions of former presidents are not unheard of in Brazil.
Lula himself was imprisoned due to a corruption case stemming from the sprawling Lava Jato (Car Wash) probe, which also saw former president Michel Temer arrested at one point. Lula has maintained his conviction was politically motivated.
As well, ex-president Fernando Collor de Mello faced a corruption trial in the 1990s, and was ultimately acquitted.
The Bolsonaro question for the U.S. may be ultimately moot, owing to his ongoing health issues. He was hospitalized in Florida on Monday due to abdominal pains related to a 2018 stabbing he suffered while on the campaign trail, his wife said on social media.
Bolsonaro told CNN Brasil that he intended to cut short his U.S. stay due to the medical issues, according to a report published on the outlet's website, adding that the trip was originally planned through the end of the month.
With files from CBC News