In the past year, the U.S. Immigration and Customs Enforcement (ICE) agency has detained dozens of Vietnamese refugees who fled the war and have since made the United States their home, an advocacy group has alleged in a class action habeas petition and complaint made public Wednesday. The government is holding many of these immigrants in prolonged detention without a reasonably foreseeable removal date.
Since 2017, ICE agents detained at least 40 Vietnamese immigrants who entered the country before 1995 — targeting people who lost their green cards as a result of criminal convictions and were ordered removed from the United States. The year 1995 is significant. Even with final orders of removal, Vietnamese immigrants who came to the United States before July 12, 1995 cannot be repatriated thanks to an agreement between the governments of United States and Vietnam. This population of “pre-1995 Vietnamese immigrants” largely consist of refugees who fled Vietnam after the war to escape the communist regime. Because the Vietnamese government refuses to take back repatriated individuals who qualify under the agreement, these immigrants are stuck in detention purgatory.
Hoang Trinh, a 41-year-old California resident, is a petitioner on the complaint. Trinh came to the United States as a 4-year-old refugee in 1980 and was able to adjust his status to become a lawful permanent resident, or a green card holder. In 2015, police arrested him for a drug charge, for which he served one year in prison. In 2017, he was again arrested for being in possession of a marijuana plant. He was jailed, then transferred to ICE custody. Since July 27, 2017, Trinh has been detained at the Theo Lacy Facility in Orange County.
Vu Ha, a 37-year-old California resident, is another complaint petitioner. He came to the country as a 10-year-old refugee in 1990 and also became a lawful permanent resident. Between 2000 and 2005, Ha was arrested and detained three times, the most serious offense being robbery. Last year, he was arrested and detained for failing to pay a citation for driving without a license. The county jail transferred him to ICE custody where he was ordered removed in September 2017. He is still held at the Adelanto ICE Processing Center in Adelanto, California.
The Vietnamese government has not interviewed any of the petitioners about repatriation to Vietnam.
People with final orders of removal like Vu and Hoang are ineligible for naturalization, according to the United States Citizenship and Immigration Services (USCIS). That makes them deportable. Similarly, people whose removal proceedings are pending cannot move forward with their naturalization applications. However, naturalization applications may be considered from people removed from the United States who later reentered with proper documentation and authorization or from people who filed for naturalization based on military service.
In 2008, the United States and Vietnam signed a repatriation agreement to prohibit the deportation of Vietnamese immigrants who arrived in the United States before July 12, 1995. Vietnamese individuals with final orders of removal and came after July 12, 1995 can be deported, however.
During a press conference Wednesday, Phi Nguyen, the litigation director at the Asian Americans Advancing Justice – Atlanta, called on the U.S. government not to “completely abandon” its part in the 2008 repatriation agreement.
“The Constitution does not permit the government to engage in indefinite detention if they cannot deport them,” Phi said. She had visited Vu in detention at Adelanto the day before. Relaying what he had told her about the hardest part of being locked up, she said, “I made some bad decisions in the past. I know I have hurt my mom. I want to be able to spend this time to take care of her, make it up for her. She is in her 90s. There is not much time left.”
Good luck challenging unconstitutional detention now.
Tung Nguyen, Founder of Asian Pacific Islander Re-Entry Orange County (APIROC), was present at the press conference to speak about how his own troubled past may now put him in a similar situation as other pre-1995 Vietnamese immigrants. Nguyen came to the United States at the age of 14 in the early 1990s and struggled to find his place, according to previous NBC News reporting. He ultimately committed a crime that put him in prison for 18 years. Nguyen was tried as an adult after holding a man at knife point while his friend stabbed and killed the man. California Gov. Jerry Brown (D) pardoned and released him for “exceptional rehabiltation.”
Since then, Nguyen said he has “dedicated my life to serve the community and helped people” and provided reentry services to Asians and Pacific Islander incarcerated populations, families of the incarcerated, and services to victims of crimes. Yet at the press conference, Nguyen was fully aware that as someone who served his criminal record, he still has to worry ICE may pursue him as the agency has done with others.
“I was immature about the immigration consequences,” Nguyen said, referencing his youth. “Now that I learned about it, all I can ask is for mercy and reconsideration of my case. The crimes I committed do not define who I am today.”
The United States has released immigrants with final orders of removal — like Hoang, Vu, and the other petitioners — because of the “legal constraints on their detention authority.” ICE has typically released immigrants on orders of supervision — such as check-ins with the federal agency — within 90 days of their removal orders becoming final. But since last year, the agency has held Vietnamese immigrants in detention past 90 days, even past 180 days, the class action complaint alleged. At least one individual was held for more than 11 months.
“Given Vietnam’s longstanding policy of categorically denying repatriation to pre-1995 Vietnamese immigrants, memorialized in the existing and valid repatriation agreement, detention of Petitioners without an individualized and specific showing that Vietnam actually intends to accept them is unlawful,” the class action complaint alleged. The document added that ICE cannot lawfully detain people without showing that they pose a danger or flight risk “before a neutral decision maker.”
Wednesday’s complaint is very similar to the one filed last year on behalf of Cambodian refugees that alleged that they were unlawfully detained by the federal agency. Cambodia has a similar repatriation agreement with the United States. Last year, the Trump administration threatened to deny visas to countries that do not cooperate with deportations.
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