Deportation of Cambodian refugees from the United States

Deportation of Cambodian refugees from the United States refers to the refoulment (or involuntary removal) of Cambodian-Americans convicted of a common crime in the United States. The overwhelming majority of these individuals in removal proceedings were admitted to the United States in the 1980s with their refugee family members after escaping from the Cambodian genocide, and have continuously spent decades in the United States as legal immigrants (potential U.S. nationals).
According to the Immigration and Nationality Act (INA), these Cambodian-Americans did not enter the United States with immigrant visas as lawful permanent residents but rather with special travel documents as refugees. As such, they have been immunized against deportation since 1980 when the U.S. Congress enacted INA §§ 207 and 209, 8 U.S.C. §§ 1157 and 1159. This legal finding is supported by latest precedents of all the U.S. courts of appeals and the Board of Immigration Appeals (BIA), which are binding on all immigration judges and Department of Homeland Security (DHS) officers.
History.
Cambodians escaping genocide and persecution.
In 1975, the U.S. Congress and the Ford administration enacted the Indochina Migration and Refugee Assistance Act, which permitted about 130,000 natives of Cambodia, Laos, and South Vietnam to be admitted to the United States as refugees. It is important to note that the Cambodian refugees were fleeing from genocide that was orchestrated by the communist Khmer Rouge government.
In 1980, the U.S. Congress and the Carter administration enacted the Refugee Act, which approved 50,000 international refugees to be firmly-resettled in the United States each year. s.
Firm resettlement of Cambodian refugees in the United States.
Each year, from 1975 onward, groups of Cambodian refugee families lawfully entered the United States. These families were issued by the U.S. Department of State special travel documents. After residing for at least one year, the then Immigration and Naturalization Service (INS) adjusted their status to that of lawful permanent residents of the United States. This process statutorily protected them against refoulment (forceful deportation) for lifetime.
The Cambodian families were "resettled" in and around Long Beach, California, Lowell, Massachusetts, Lynn, Massachusetts, and Philadelphia, Pennsylvania. In 1982, the U.S. Supreme Court reminded all immigration officials that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." That opinion was issued after Congress and the Reagan administration "resettled" in the United States refugees from various countries.
United States Congress provides statutory relief to Cambodian-Americans against removability.
The INA historically stated that "[t]he term 'alien' means any person not a citizen or national of the United States." The terms "inadmissible aliens" and "deportable aliens" are synonymous.
In this regard, INA § 207(c), 8 U.S.C. § 1157(c), expressly provides the following:
INA § 209, 8 U.S.C. § 1159, provides the following:
In addition to the above provisions, INA § 212(h), 8 U.S.C. § 1182(h), provides the following:
The above legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." Congress treated refugees (i.e., established victims of persecution who have absolutely no safe country) differently than all other aliens (who do have a safe country and are not victims of persecution). If Congress wanted to treat refugees the same as all other aliens, it would have repealed §§ 1157(c)(3) and 1159(c) instead of amending them in 1996 and then in 2005. This demonstrates that it intentionally provided a special statutory and mandatory legal remedy to refugees. Under the well known "Chevron" doctrine, "[i]f the intent of Congress is clear, that is the end of the matter, for the court as well as the [Attorney General] must give effect to the unambiguously expressed intent of Congress."
It is also crucial to take notice that the penultimate provision of § 1182(h), where it repeatedly mentions the phrase "under this subsection", obviously does not apply to any Cambodian-American requesting relief under §§ 1157(c)(3) and 1159(c), or under the United Nations Convention against Torture (CAT). In other words, that specific concluding statement of § 1182(h) only applies to aliens who were admitted to the United States as lawful permanent residents in accordance with Form I-130, Form I-140, Diversity Immigrant Visa, etc., and are requesting a waiver of inadmissibility prior to the statutory 15-year expiry-period of an aggravated felony conviction. See the section below: "Introduction and amendment of the term "aggravated felony"".
The Cambodian-Americans who were admitted as refugees in the 1980s are still refugees under the INA and international law because (1) they continue to be victims of persecution and (2) they have absolutely no safe country of permanent residence other than the United States. This means that any Cambodian-American who has been convicted of any offense mentioned in § 1101(a)(43)(A) is not (and has never been) precluded from relief under §§ 1157(c)(3) and 1159(c) or the CAT. It has long been understood in the United States that whenever "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."
The above provisions are in clear harmony with each other and the overall law of the United States, including with international law. Secondly, providing relief under §§ 1157(c)(3) and 1159(c) or the CAT is not discretionary but statutory and mandatory, and the above provisions all involve "legal claims" (i.e., constitutional claims or questions of law). As such, federal judges are fully empowered to review these "legal claims" at any time, especially in a case involving exceptional circumstances. The U.S. Court of Appeals for the Ninth Circuit recently reaffirmed this by stating the following:
Expansion of the definition of "nationals but not citizens of the United States".
In 1986, less than a year before the CAT became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which plainly states that:
The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but for all people who statutorily and manifestly qualify as "nationals but not citizens of the United States." This means that any Cambodian-American who can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4) and 1436 is plainly and unambiguously a "national but not a citizen of the United States." Such person must never be labelled or treated as an alien, especially after demonstrating that he or she has continuously resided in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability. "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."
Introduction and amendment of the term "aggravated felony".
In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a), which was amended several times over the years. As of September 30, 1996, an "aggravated felony" only applies to convictions "for which the term of imprisonment was completed within the previous 15 years." After these "15 years" successfully elapse (i.e., without sustaining another aggravated felony conviction), a long-time lawful permanent resident (LPR) automatically becomes entitled to both cancellation of removal and a waiver of inadmissibility. He or she may (at any time and from anywhere in the world) request these popular immigration benefits depending on whichever is more applicable or easiest to obtain. It is important to note that a court-imposed suspended sentence counts as "term of imprisonment" and must be added to the above 15 years, and it makes no difference if the aggravated felony conviction was entered in American Samoa, Australia, Cambodia, Canada, Mexico, the United Kingdom, the United States, or in any other country or place in the world.
Illegal Immigration Reform and Immigrant Responsibility Act.
In February 1995, U.S. President Bill Clinton issued an important directive in which he expressly stated the following:
On September 30, 1996, President Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which is particularly aimed at combating illegal immigration to the United States. But despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting long-time legal immigrants (i.e., potential Americans), who have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc. They own homes, businesses, vehicles and other properties in the United States under their names. Such people statutorily qualify as "nationals of the United States" after continuously residing in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability. This appears to be the reason why the permanent resident card (green card) is valid for 10 years. It was expected that all Cambodian refugees in the United States would equally obtain U.S. citizenship within 10 years from the date of their first lawful entry, but if that was unachievable then they would statutorily become "nationals but not citizens of the United States" after such 10 years successfully elapse. Anything to the contrary will lead to "deprivation of rights under color of law," which is a federal crime that entails capital punishment for the perpetrator(s).
The Cambodian refugees in removal proceedings have already "been lawfully accorded the privilege of residing permanently in the United States" by the Attorney General,
"Only aliens are subject to removal." As mentioned above, the terms "inadmissible aliens" and "deportable aliens" are synonymous. It is common knowledge that these aliens mainly refer to the INA violators among the 75 million foreign nationals who are admitted each year as guests, the 12 million or so illegal aliens, and the INA violators among the 400,000 foreign nationals who possess the temporary protected status (TPS). A lawful permanent resident (legal immigrant) can either be an alien or a national of the United States (American), which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder.
The INA makes clear that any alien or any "national but not a citizen of the United States" who has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is ineligible for citizenship of the United States if his or her "term of imprisonment was completed within the previous 15 years." However, unlike a "national but not a citizen of the United States," an alien who has been convicted of any aggravated felony is removable if his or her "term of imprisonment was completed within the previous 15 years." In other words, such alien cannot:
Challenging an aggravated felony charge.
An "order of deportation" may be reviewed at any time by any immigration judge or any BIA member and finally by any authorized federal judge. Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure. The review of the order does not require the alien (or the American) to remain in the United States. It can be requested from anywhere in the world "via" mail and/or electronic court filing (ECF), and the case can be filed in any court the alien (or the American) finds appropriate.
Every United States nationality claim, illegal deportation claim, and CAT or asylum claim is adjudicated under 8 U.S.C. §§ 1252(a)(4), 1252(b)(4), 1252(b)(5), 1252(d) and 1252(f)(2). When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1) and "Stone v. INS", 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"), must be disregarded because the above three claims manifestly constitute exceptional circumstances. The Supreme Court has pointed out in 2009 that "the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision." In this regard, Congress has stating the following:
According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more people in removal proceedings should be recognized as nationals of the United States (Americans). This includes parents and children or relatives. The remaining courts, however, are fully empowered pursuant to §§ 1252(b)(5) and 1252(f)(2) to, "inter alia", issue an injunction to terminate any persons removal proceedings; return any previously removed person to the United States; and/or to confer United States nationality upon any person (but only using a case-by-case analysis). In addition to that, under , any officer mentioned in may at any time move to terminate the case of any person who turns out to be a national of the United States or one who is clearly not "removable" under the INA. The burden of proof is on the alien (or the American) to establish a "prima facie" entitlement to re-admission after the deportation has been completed.
Number of Cambodian-Americans physically removed from the United States.
Between the years of 2003 and 2016 (per ICE), approximately 750 Cambodian-Americans were physically removed from the United States. Of these, at least 12 have reportedly died (some from suicide or drug overdose) and another 17 are in Cambodian prison. ICE data shows that deportation of Cambodian-Americans averaged 41 per year from 2001 through 2010, increasing to 96 in 2011 and 90 in 2012. As of 2017, nearly 1,900 Cambodian-Americans have final orders of removal, meaning they can be deported from the United States at any time.
Deported Cambodian-Americans are typically young men in their twenties and thirties who were either born inside Cambodia or in refugee camps in neighboring Thailand. Most were admitted to the United States as small children of refugee families, members of the so-called 1.5 generation. A 2005 survey by one immigrant advocacy organization showed that the Cambodian-American deportees had continuously resided in the United States for an average of 20 years. Many of those deported after 2005 have continuously resided in the United States for over 30 years. As such, they received most or all of their education in the United States, often speak Khmer language very poorly. Many of the Cambodian-American deportees either have not visited Cambodia in decades or saw it for the first time after their deportation.
Reason for deportation.
Most Cambodian-Americans were deported for committing a common crime in the United States. Several of them violated a firearm law. Congress clarified this in 1996 and it was settled by the BIA in a March 2000 "en banc" decision, which has since been binding on all immigration judges and DHS officers.
Notable Cambodian-American deportees.
The following is an incomplete list of Cambodian-Americans who were physically removed from the United States to Cambodia:
Demonstrations.
A number of demonstrations have been witnessed in several U.S. cities over the deportation of Cambodian-Americans.
References.
"This article in most part is based on law of the United States, including statutory and latest published case law."