LEGAL FRAMEWORK
As forced migrants navigating the complex refugee resettlement process in the United States, Southeast Asian Americans were required to pursue Legal Permanent Resident status after one year of residence in the country. Thousands of refugees did not continue to pursue American citizenship due to time constraints, limited English ability and learning resources, financial concerns, and/or personal choice. Like all non-citizens, Southeast Asian American refugees can become eligible for deportation based on a number of guidelines first stated in the 1965 Immigration and Nationality Act. According to this act, non-citizens are considered eligible for removal based on six criteria: violation of entry conditions, commission of criminal offenses (aggravated felonies), document fraud, constituting a security threat, classification as a public charge, and voting unlawfully. For Southeast Asian American refugees, the vast majority of individuals facing removal proceedings are eligible for deportation based on past criminal convictions.
EXPANDED DEPORTATION GUIDELINES
In 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act and Antiterrorism and Effective Death Penalty Act that expanded the range of offenses considered to be aggravated felonies that would make an individual eligible for criminal detention and deportation. Under this legislation, the minimum sentence for which an individual could become eligible for criminal deportation was lessened from a 5 year to 1 year prison sentence. Moreover, the list of deportable criminal offenses now includes crimes as minor as counterfeit, fraud, theft, and perjury.
To begin the removal process, immigrants must be placed in immigration detention for processing by Immigration and Customs Enforcement. Individuals facing final orders of deportation will usually be in ICE custody for 2 weeks until their files begin to be processed and can be detained for a maximum of 90 days at a time before having to be released. While many individuals with final orders of deportation may be eligible to post bond and leave ICE custody during their case proceedings, criminal offenders are not eligible for bond and are considered to face “mandatory detention.” Once deported, repatriated individuals are not eligible to return to the United States for a specified period of time, usually around 10 years, but often spanning a lifetime bar on re-entry.
REPATRIATION AGREEMENTS
Since the United States cannot unilaterally deport an individual to a country, they must sign repatriation agreements where a country agrees to allow the return of migrants. In 2002, the United States signed a repatriation agreement with Cambodia that has resulted in the deportation of more than 700 Cambodians from the United States. In 2008, the United States signed a more unique repatriation agreement with Vietnam that allowed for the deportation of Vietnamese nationals, but prevented the deportation of Vietnamese individuals who arrived in the United States before July 12, 1995 (the date of US-Vietnam rapprochement). While these pre-1995 individuals cannot be physically deported based on the repatriation agreement, they may still face removal proceedings and be detained at any time by Immigration and Customs Enforcement. This phenomenon is known as “deportation limbo.” The United States has not signed a repatriation agreement with Laos that would allow for the deportation of Laotian nationals, leading to the Department of State deeming Laos “recalcitrant” and imposing visa sanctions.
INTERNATIONAL HUMAN RIGHTS LAW
In 1993, the United States ratified the International Convention on Civil and Political Rights (ICCPR), making the state legally obligated to respect and fulfill the rights within it. According to Articles 7 and 10, the United States must not subject individuals to “cruel, inhuman or degrading treatment or punishment” and should prioritize the rehabilitation of criminal offenders. By deporting community members who have already served a court-mandated sentence to a country they originally fled from, the state is doubly punishing them in an exceedingly harsh manner that rips them from their communities and violates the ICCPR’s commitments.
In addition, the United States is party to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees that provide the legal definition of “refugee” and establish the principle of non-refoulement. Deporting Southeast Asian American refugees violates the principle of non-refoulement, or returning a refugee to a country with a well-founded fear of danger, in Article 33. Moreover, the process of removal through immigration courts without judicial discretion violates the rights to due process outlined in Article 32.